These Terms of Service (“Master Service Agreement” or “MSA”) constitute a legally binding agreement between you (“Company”) and Desia Limited, a UK corporation with a place of business at 20 Eastbourne Terrace, W2 6LG, London (“Desia”) (each a “Party” and together the “Parties”). In the event of any inconsistency or conflict between the terms of the MSA and the terms of any Order Form, the terms of the Order Form control. This MSA governs the use of Desia products, services, web app and website (collectively the “Services ”).
YOU ACKNOWLEDGE AND AGREE THAT, BY CLICKING ON THE “I AGREE” OR SIMILAR BUTTON, REGISTERING FOR AN ACCOUNT, ACCESSING THE PLATFORM ON WEB OR MOBILE, DOWNLOADING AND ACCESSING ANY MICROSOFT ADD-IN, OR ACCESSING OR USING THE SERVICES, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SITE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICES.
These Terms of Service are effective as of the date you first click “I agree” (or similar button or checkbox) or as of the effective date of an applicable signed order form (such form an “Order Form” and such date the “Effective Date”), whichever is earlier. If you accept or agree to these Terms of Service on behalf of your employer or another legal entity, you represent and warrant that (i) you have full legal authority to bind your employer or such entity to these Terms of Services; (ii) you have read and understand these Terms of Service; and (iii) you agree to these Terms of Service on behalf of the party that you represent and any permitted users of such party. In such an event, “Company” will refer and apply to your employer or such other legal entity. Any personal data you submit to us or which we collect about you is governed by our Privacy Policy (“ Privacy Policy”), available at https://www.desia.ai/privacy. You acknowledge that by using the Services, you have reviewed the Privacy Policy. The Privacy Policy is incorporated by reference into these Terms of Service and together form and are hereinafter referred to as this “Agreement.”
1. Services
“Services” means the product(s) and service(s) that are ordered by Company from Desia through an Order Form referencing this MSA, whether on a trial or paid basis, and to which Desia thereby provides access to Company. Services exclude any products or services provided by third parties, even if Company has connected those products or services to the Services. Subject to the terms and conditions of this MSA, Desia will make the Services available during the Term as set forth in an Order Form.
2. Fees and Payment
2.1. Fees. Company will pay the fees specified in the Order Form (the “Fees”).
2.2. Fees adjustments. Desia reserves the right, at its discretion and at any time, to modify the Fees. Any changes to Subscription fees will take effect after the current Subscription period ends. Desia will notify the Company in advance to give the Company the opportunity to cancel before the new fee structure takes effect. Continuing to use the Service after the fee change signifies Company acceptance of the revised Subscription cost.
2.3. Payment and Taxes. Desia will invoice Company for Fees, either within the Services or directly, within thirty (30) days of the Effective Date. Company will pay all invoiced Fees net thirty (30) days from the date of the invoice. Any late payments will incur interest at the rate of 1.5% per month, or the maximum rate permitted by law, whichever is lower, calculated daily from the due date until the date of payment. The Company shall also be responsible for any costs incurred by Desia in collecting overdue amounts, including reasonable attorneys’ fees and expenses. Fees do not include local, state, or federal taxes or duties of any kind and any such taxes will be assumed and paid by Company, except for taxes on Desia based on Desia’s income or receipts.
2.4. Cancellations and refunds. The Company can cancel the Subscription renewal by reaching out to Desia. The Company will retain access to the Service until the end of the Period. Except where legally required, Subscription fees that have been paid are non-refundable. Desia may review certain refund requests on a case-by-case basis, and refunds may be granted at Desia’s sole discretion.
3. Term and Termination
3.1. Term. This MSA commences on the Effective Date and will remain in effect through the Initial Term and all Renewal Terms, as specified in the Order Form, unless otherwise terminated in accordance with this Section (the Initial Term and all Renewal Terms collectively the “Term”).
3.2. Termination for Cause. A Party may terminate this MSA for cause upon written notice to the other Party if:
i. Material Breach: The other Party materially breaches this MSA and fails to cure such breach within thirty (30) days of receiving written notice specifying the breach.
ii. Insolvency: The other Party becomes insolvent, files for bankruptcy, is placed under receivership, or makes an assignment for the benefit of creditors.
iii. Regulatory Non-Compliance: The other Party violates applicable laws, regulations, or industry standards in a manner that impacts the terminating Party’s ability to comply with its own legal or regulatory obligations.
iv. Unauthorized Use: The Company misuses or allows unauthorized access to the Services, including violations of applicable data privacy, security, or intellectual property laws.
v. Force Majeure: A force majeure event prevents performance under this MSA for a continuous period exceeding sixty (60) days.Termination under this Section shall not affect any accrued rights or obligations of either Party as of the termination date.
3.3. Cancellation. A Party may terminate the MSA and any applicable Order Form either:
i. At the End of the Term: By providing written notice of non-renewal at least thirty (30) days before the end of the current subscription or service term, unless otherwise specified in the Order Form.
ii. By Mutual Agreement: At any time, upon mutual written agreement of the Parties.
iii. For Breach of Payment Terms: If the Company fails to pay any fees due under this MSA within thirty (30) days after receiving written notice of non-payment.
iv. Regulatory Changes: If legal or regulatory changes make it impossible or impractical to continue providing or using the Services under this MSATermination under this Section does not relieve either Party of obligations incurred before the termination date, including payment for any services rendered.
3.4. Effect of Termination and Survival. Upon termination or cancellation of an Order Form or this MSA:
i. Cessation of Access: Company’s rights to access and use the Services, including any associated documentation, will immediately terminate.
ii. Return or Deletion of Data: Each Party shall return or destroy the other Party’s Confidential Information in its possession, except where retention is required by law or regulation. Upon request, the Party retaining data must certify its destruction in writing.
iii. Outstanding Payments: Company shall pay all outstanding fees and charges incurred up to the effective date of termination.
iv. End of Licenses: Any licenses granted under this MSA will terminate immediately unless otherwise agreed in writing.
v. Post-Termination Obligations: Desia will provide limited access to Company Data for a period of thirty (30) days post-termination to allow Company to export their data, provided all fees are fully paid.
vi. Surviving Provisions: Provisions relating to confidentiality, intellectual property, indemnification, limitation of liability, and any other clauses that by their nature should survive termination will remain in full force and effect.Termination or cancellation of the MSA does not affect any accrued rights or obligations of either Party as of the termination date.
4. License and Use of the Services
4.1. License. Desia hereby grants Company a non-exclusive, non-transferable, non-sublicensable, limited right to access and use Desia’s AI platform solely for the internal business purposes of the Company, in accordance with the terms of this Agreement and any applicable Order Form. Such access and use are restricted to the usage limitations specified in the applicable Order Form and may only be utilized by Company’s employees or contractors acting on behalf of Company, provided those contractors comply with the terms of this Agreement.Company shall not:1. Share access credentials or otherwise allow unauthorized individuals to access the platform.2. Use the platform for any purpose outside the scope explicitly permitted in this Agreement.
4.2. Authorized Users. Company may designate and provide access to its (or its corporate affiliates’) employees, independent contractors, or other agents to an account on the Services as authorized users (each an “Authorized User”) up to the usage limitation set forth in the Order Form (unlimited if not specified in the Order Form). Each account may be used only by a single, individual Authorized User, and Company may be charged for additional usage (if applicable), or Desia may terminate the MSA for cause, if this requirement is circumvented. Company is responsible for all use and misuse of the Services by Authorized User accounts and for adherence to this MSA by any Authorized Users, and references to Company herein will be deemed to apply to Authorized Users as necessary and applicable. Company agrees to promptly notify Desia of any unauthorized access or use of which Company becomes aware.
4.3. User Accounts. When Company creates an account with Desia, Company must provide accurate, complete, and current information at all times. Failing to do so is a breach of these Terms and may result in the immediate termination of Company accounts. Company is responsible for maintaining the confidentiality of Company password and any actions that occur under it, whether with Desia Service or a third-party service. Company must not disclose Company password to anyone. Notify Desia immediately of any security breaches or unauthorized use of Company account. Company usernames must not infringe on the rights of others or be inappropriate.
4.4. Prohibited Uses. Company and Authorized Users will not: (a) “frame,” distribute, resell, or permit access to the Services by any third party other than for its intended purposes; (b) use the Services other than in compliance with applicable federal, state, and local laws; (c) interfere with the Services or disrupt any other user’s access to the Subscription Service; (d) reverse engineer, attempt to gain unauthorized access to the Service, attempt to discover the underlying source code or structure of, or otherwise copy or attempt to copy the Services; (e) knowingly transfer to the Services any content or data that is defamatory, harassing, discriminatory, infringing of third party intellectual property rights, or unlawful; (f) transfer to the Services or otherwise use on the Services any routine, device, code, exploit, or other undisclosed feature that is designed to delete, disable, deactivate, interfere with or otherwise harm any software, program, data, device, system or service, or which is intended to provide unauthorized access or to produce unauthorized modifications; or (g) use any robot, spider, data scraping, or extraction tool or similar mechanism with respect to the Services.
4.5. Account suspension and reactivation. Desia reserves the right to suspend or restrict access to the Company's account at any time, without prior notice, if Desia reasonably believes that the Company is in breach of these Terms, or if The Company's account is flagged for billing issues, security concerns, or other violations. During any such suspension, the Company will be unable to access the Service, and any ongoing Subscription services may be paused. In the event of suspension due to billing issues, the Company may restore access to its account by providing updated and valid payment information. If the suspension is due to reasons other than billing issues, the Company may contact Desia for assistance in resolving the matter.
5. Content
5.1. Content Ownership and Responsibility. Desia acknowledges that any content, including but not limited to text, images, or other information, that the Company posts, uploads, links to, or makes available via the Service ("Content") remains the Company’s property. The Company shall retain all rights, title, and interest in and to the Content, subject to the rights granted to Desia herein. The Company is solely responsible for ensuring that any Content posted to the Service is lawful, does not infringe the intellectual property rights of third parties, and does not violate any applicable laws or regulations.
5.2. AI-Generated Content. The Service includes an artificial intelligence system that provides information and recommendations. Desia acknowledges that the system is not infallible and may make errors. The Company agrees to use its own judgment and consult with human experts where necessary. The AI system has inherent limitations in understanding natural language and may not fully interpret all nuances or context. If the Company encounters any concerns regarding AI-generated content, it agrees to promptly contact Desia.
5.3. Right to Post Content. By posting Content on the Service, the Company represents and warrants that it owns the Content or has the necessary rights, permissions, and licenses to post such Content. The Company further affirms that the Content does not infringe on the intellectual property or privacy rights of any third party. The Company is solely responsible for the Content posted on the Service, and any activity under its account, whether conducted by the Company or any third party using its account.
5.4. Content Restrictions. The Company agrees not to post, upload, or transmit any Content that:
i. Violates or promotes unlawful activity;• Is defamatory, discriminatory, offensive, or discriminatory based on religion, race, sexual orientation, gender, national origin, or any other protected class;
ii. Constitutes spam, unauthorized advertising, unsolicited communications, chain letters, or forms of unauthorized solicitation;
iii. Contains or transmits viruses, worms, malware, or other harmful software designed to disrupt, damage, or gain unauthorized access to software, hardware, telecommunications equipment, or third-party data;• Infringes any intellectual property rights of any party, including but not limited to patents, trademarks, copyrights, trade secrets, or other proprietary rights;
iv. Impersonates any individual, entity, or Desia, including its employees or representatives;
v. Violates any third party’s privacy rights;
vi. Contains false, misleading, or inaccurate information.
5.5. Content Backups and Data Integrity. While Desia performs regular backups of Content, Desia does not guarantee against data loss, corruption, or any failure in restoring Content to a usable state. The Company acknowledges that Desia shall not be liable for any data loss or corruption, whether due to pre-existing issues in the Content or any issues arising during the backup process. It is the Company’s responsibility to maintain a separate, accurate copy of its Content outside of the Service. Desia will assist in troubleshooting known issues related to Content backups but shall not be liable for any failure to restore Content.Section
6. Confidentiality. As used herein, the “Confidential Information” of a Party (the “Disclosing Party”) means all financial, technical, or business information of the Disclosing Party that the Disclosing Party designates as confidential at the time of disclosure to the other Party (the “Receiving Party”) or that the Receiving Party reasonably should understand to be confidential based on the nature of the information or the circumstances surrounding its disclosure. For the sake of clarity, the Parties acknowledge that Confidential Information includes the terms and conditions of this MSA. Except as expressly permitted in this MSA, the Receiving Party will not disclose, duplicate, publish, transfer or otherwise make available Confidential Information of the Disclosing Party in any form to any person or entity without the Disclosing Party’s prior written consent. The Receiving Party will not use the Disclosing Party’s Confidential Information except to perform its obligations under this MSA, such obligations including, in the case of Desia, to provide the Services. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information to the extent required by law, provided that the Receiving Party: (a) gives the Disclosing Party prior written notice of such disclosure so as to afford the Disclosing Party a reasonable opportunity to appear, object, and obtain a protective order or other appropriate relief regarding such disclosure (if such notice is not prohibited by applicable law); (b) uses diligent efforts to limit disclosure and to obtain confidential treatment or a protective order; and (c) allows the Disclosing Party to participate in the proceeding. Further, Confidential Information does not include any information that: (i) is or becomes generally known to the public without the Receiving Party's breach of any obligation owed to the Disclosing Party; (ii) was independently developed by the Receiving Party without the Receiving Party's breach of any obligation owed to the Disclosing Party; or (iii) is received from a third party who obtained such Confidential Information without any third party's breach of any obligation owed to the Disclosing Party.
7. Data
7.1. Data Practices. Definitions. “Service Data” means a subset of Confidential Information comprised of electronic data, text, messages, communications, or other materials submitted to and stored within the Services by Company in connection with use of the Services. Service Data may include, without limitation, any information relating to an identified or identifiable natural person (‘data subject’) where an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as name, an identification number, location data, an online identifier or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity of that natural person (such information, “Personal Data”). Service Data does not include metrics and information regarding Company’s use of the Services, including information about how Authorized Users use the Services (such information, “Usage Data”).
7.2. Ownership. Company will continue to retain its ownership rights to all Service Data processed under the terms of this MSA and Desia will own all Usage Data.
7.3. Desia’s Use of Data. Desia collects and uses data in accordance with Desia Privacy Policy (https://www.desia.ai/privacy) and this MSA.
7.3.1. Operating the Services. Desia may receive, collect, store and/or process Service Data based on Desia’s legitimate interest in operating the Services. For example, Desia may collect Personal Data (such as name, phone number, or credit card information) through the account activation process.
7.3.2. Communications. Desia may communicate with Company or Authorized Users (i) to send product information and promotional offers or (ii) about the Services generally. If Company or an Authorized User does not want to receive such communications, Company may email info@desia.ai. Company and necessary Authorized Users will always receive transactional messages that are required for Desia to provide the Services (such as billing notices and product usage notifications).
7.3.3. Improving the Services. Desia may collect, and may engage third-party analytics providers to collect Usage Data to develop new features, improve existing features, or inform sales and marketing strategies based on Desia’s legitimate interest in improving the Services. When Desia uses Usage Data, any Personal Data that was included in Service Data shall be anonymized and/or aggregated in such a manner that it no longer constitutes Service Data or Personal Data under applicable data protection laws. Any such third-party analytics providers will not share or otherwise disclose Usage Data, although Desia may make Usage Data publicly available from time to time.
8. Third-Party Services
8.1. Connecting to Third-Party Services. The Service may include integrations with third-party services, such as payment processors, data management tools, or other software. The Company acknowledges that Desia is not responsible for the performance, functionality, or availability of any third-party services. Any use of third-party services is governed by their respective terms of service and privacy policies, and the Company is encouraged to review them before use. Desia is not liable for any damages or losses arising from issues caused by third-party services or integrations. The Company may wish to connect third-party services to the Services (e.g., connecting Desia to Company’s single-sign-on service to verify 2FA status of Company’s employees). When Company uses a third-party service to connect with Desia, logs into the Services through a third-party authentication service, or otherwise provides Desia with access to information from a third-party service, Desia may obtain other information, including Personal Data, from those third parties and combine that Service or Usage Data based on Desia legitimate interest in providing Company with functionality that supports the Services. Any access that Desia may receive to such information from a third-party service is always in accordance with the features and functionality, particularly as to authorization, of that service. By authorizing Desia to connect with a third-party service, Company authorizes Desia to access and store any information provided to Desia by that third-party service, and to use and disclose that information in accordance with this MSA.
8.2. Third-Party Service Providers. Company agrees that Desia may provide Service Data and Personal Data to authorized third-party service providers, only to the extent necessary to provide, secure, or improve the Services. Any such third-party service providers will only be given access to Service Data and Personal Data as is reasonably necessary to provide the Services and will be subject to (a) confidentiality obligations which are commercially reasonable and substantially consistent with the standards described in this MSA; and (b) their agreement to comply with the data transfer restrictions applicable to Personal Data as set forth below. 6.4. Service Data Safeguards. (i) Desia will not sell, rent, or lease Service Data to any third party, and will not share Service Data with third parties, except as permitted by this MSA and to provide, secure, and support the Services. (ii) Desia will maintain commercially reasonable (particularly for a company of Desia’s size and revenue) appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Service Data.
8.3. Third-Party Service Provider Requirements. Desia may provide access to third-party services, including but not limited to services and data provided by S&P Global ("S&P Services"). Company acknowledges that use of such third-party services is subject to compliance with the terms and conditions imposed by the respective third-party provider.Company shall ensure that only those individuals identified in the applicable Order Form as authorized users ("Authorized Users") may access the S&P Services. Company shall not distribute, sublicense, or otherwise make the S&P Services available to any third party.Company shall not: (i) use the S&P Services for any unlawful or unauthorized purpose; (ii) Modify, reverse engineer, decompile, or create derivative works from the S&P Services; (iiI) Distribute, furnish, or otherwise make the S&P Services available to third parties without S&P’s prior written consent; (iv) Use the S&P Services as investment advice or as a recommendation to buy, sell, or hold securities; (v) Use the S&P Services beyond the scope permitted in the applicable Order Form. Company acknowledges that use of the S&P Services is subject to the following additional terms: (i) S&P and its affiliates retain exclusive proprietary rights in the S&P Services; (ii) S&P disclaims liability for any inaccuracies, omissions, or interruptions in the data provided; (iii) Company agrees to immediately cease use of and purge any S&P Services upon termination of its agreement with Desia or termination of Desia’s agreement with S&P; (iv) S&P is an express third-party beneficiary of this section and may enforce its rights directly against Company. Access to the S&P Services is subject to termination in the event of termination of the agreement between Desia and S&P. Company shall promptly comply with any requirement to cease use of and delete the S&P Services upon such termination.
9. Privacy Practices.
9.1. Privacy Policy. Desia operates the Services and, as applicable, handles Personal Data, pursuant to the privacy policy available at https://www.desia.ai/privacy.
9.2. Hosting and Processing. Unless otherwise specifically agreed to by Desia, Service Data may be hosted by Desia, or its respective authorized third-party service providers, in the United Kingdom or other locations around the world. In providing the Services, Desia will engage entities to process Service Data, including and without limitation, any Personal Data within Service Data pursuant to this MSA, within the United Kingdom and in other countries and territories.
10. Intellectual Property Rights
10.1. IP. Each Party will retain all rights, title and interest in any patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (“Intellectual Property Rights”), and Desia in particular will exclusively retain such rights in the Services and all components of or used to provide the Services. Company hereby provides Desia a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback Desia receives from Company, Company’s agents or representatives, Authorized Users, or other third parties acting on Company’s behalf; and Desia also reserves the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by such suggestions, enhancement requests, recommendations or other feedback. All original content, features, and functionality provided by the Service (excluding Content supplied by the Company or other users) are and will continue to be the sole property of Desia and its licensors. The Service is protected by copyright, trademark, and other applicable laws, both domestically and internationally. Desia's trademarks and trade dress may not be used in connection with any product or service without prior written consent from Desia.
11. Representations, Warranties, and Disclaimers
11.1. Authority. Each Party represents that it has validly entered into this MSA and has the legal power to do so.
11.2. Warranties. The Service is provided to the Company on an "AS IS" and "AS AVAILABLE" basis, with all faults and defects, without any warranty of any kind. For more information please refer to Desia Terms of Service (https://www.desia.ai/terms)
11.3. Disclaimers. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION AND ANY APPLICABLE SERVICE LEVEL AGREEMENT, THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND DESIA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. COMPANY ACKNOWLEDGES THAT DESIA DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR FREE, OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY COMPANY FROM DESIA OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS MSA. THE PARTIES ADDITIONALLY AGREE THAT DESIA WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR CLIENT’S VARIOUS COMPLIANCE PROGRAMS, AND THAT THE SERVICES, TO THE EXTENT APPLICABLE, ARE ONLY TOOLS FOR ASSISTING CLIENT IN MEETING THE VARIOUS COMPLIANCE OBLIGATIONS FOR WHICH IT SOLELY IS RESPONSIBLE.
12. Indemnification.
12.1. Indemnification by Desia. Desia will indemnify and hold Company harmless from and against any third party claim against Company alleging that Company’s use of a Service as permitted by this MSA infringes or misappropriates a third party’s valid patent, copyright, trademark, or trade secret (an “IP Claim”). Desia will, at its expense, defend such IP Claim and pay damages finally awarded against Company in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Desia for such defense, provided that (a) Company promptly notifies Desia of the threat or notice of such IP Claim; (b) Desia will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such IP Claim (however, Desia will not settle or compromise any claim that results in liability or admission of any liability by Company without prior written consent); and (c) Company fully cooperates with Desia in connection therewith. If use of a Service by Company has become, or, in Desia’s opinion, is likely to become, the subject of any such IP Claim, Desia may, at its option and expense, (i) procure for Company the right to continue using the Service(s) as set forth hereunder; (ii) replace or modify a Service to make it non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by Desia, terminate Company’s subscription to the Service(s) and repay, on a pro-rata basis, any Fees previously paid to Desia for the corresponding unused portion of the Term for such Service(s). Desia will have no liability or obligation under this Section with respect to any IP Claim if such claim is caused in whole or in part by (x) Desia’s compliance with designs, data, instructions, or specifications provided by Company; (y) modification of the Service(s) by anyone other than Desia or use of the Service(s) in violation of (i) this MSA, (ii) written instructions provided by Desia, or (iii) the product features of the Service(s); or (z) the combination, operation or use of the Service(s) with other hardware or software where a Service would not by itself be infringing. The provisions of this Section state the sole, exclusive, and entire liability of Desia to Company and constitute Company’s sole remedy with respect to an IP Claim brought by reason of access to or use of a Service by Company, Company’s agents, or Authorized Users.
12.2. Indemnification by Company. Company will indemnify and hold Desia harmless against any third party claim (a) arising from or related to use of a Service by Company, Company’s agents, or Authorized Users in breach of this MSA; or (b) alleging that Company’s Service Data infringes or misappropriates a third party’s valid patent, copyright, trademark, or trade secret; provided (i) Desia promptly notifies Company of the threat or notice of such claim; (ii) Company will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, Company will not settle or compromise any claim that results in liability or admission of any liability by Desia without prior written consent); and (iii) Desia fully cooperates in connection therewith.
13. LIMITATION OF LIABILITY
13.1. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THIS MSA, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY AFFILIATE FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA (BEING DATA LOST IN THE COURSE OF TRANSMISSION VIA COMPANY’S SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF DESIA, BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, OR PUNITIVE LOSS OR DAMAGES, OR ANY OTHER INDIRECT LOSS OR DAMAGES INCURRED BY THE OTHER PARTY OR ANY AFFILIATE IN CONNECTION WITH THIS MSA OR THE SERVICES REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS MSA, AND EXCLUDING THE PARTIES’ INDEMNIFICATION OBLIGATIONS HEREUNDER, EITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF THIS MSA OR THE SERVICES WILL IN NO EVENT EXCEED THE TOTAL FEES PAID OR PAYABLE BY COMPANY TO DESIA UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. COMPANY ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION AND THE PARTIES INDEMNIFICATION OBLIGATIONS IS TO ALLOCATE THE RISKS UNDER THIS MSA BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF DESIA WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. DESIA HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE COMPANY WITH THE RIGHTS TO ACCESS AND USE THE SERVICES PROVIDED FOR IN THIS MSA.
14. Miscellaneous
14.1. Entire Agreement. This MSA and the applicable Order Form(s) constitute the entire agreement, and supersedes all prior agreements, between Desia and Company regarding the subject matter hereof.
14.2. Assignment. Either Party may, without the consent of the other Party, assign this MSA to any affiliate or in connection with any merger, change of control, or the sale of all or substantially all of such Party’s assets provided that (1) the other Party is provided prior notice of such assignment and (2) any such successor agrees to fulfill its obligations pursuant to this MSA. Subject to the foregoing restrictions, this MSA will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.
14.3. Severability. If any provision in this MSA is held by a court of competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of this MSA will remain in effect.
14.4. Relationship of the Parties. The Parties are independent contractors. This MSA does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties.
14.5. Notices. All notices provided by Desia to Company under this MSA may be delivered in writing (a) by nationally recognized overnight delivery service (“Courier”) or mail to the contact mailing address provided by Company on the Order Form; or (b) electronic mail to the electronic mail address provided for Company’s account owner. Company must give notice to Desia in writing by Courier or UK mail to 20 Eastbourne Terrace, London, W2 6LG. All notices shall be deemed to have been given immediately upon delivery by electronic mail; or, if otherwise delivered upon the earlier of receipt or two (2) business days after being deposited in the mail or with a Courier as permitted above.
14.6. Governing Law, Jurisdiction, Venue. This MSA will be governed by the laws of the United Kingdom, without reference to conflict of laws principles. Any disputes under this MSA shall be resolved in a court of general jurisdiction in United Kingdom. Company hereby expressly agrees to submit to the exclusive personal jurisdiction and venue of such courts for the purpose of resolving any dispute relating to this MSA or access to or use of the Services by Company, its agents, or Authorized Users.
14.7. Export Compliance. The Services and other software or components of the Services that Desia may provide or make available to Company are subject to UK export control and economic sanctions laws as administered and enforced by the UK Government. Company agrees to comply with all such laws and regulations as they relate to access to and use of the Services. Company will not access or use the Services if Company or any Authorized Users are located in any jurisdiction in which the provision of the Services, software, or other components is prohibited under UK or other applicable laws or regulations (a “Prohibited Jurisdiction”) and Company will not provide access to the Services to any government, entity, or individual located in any Prohibited Jurisdiction. Company represents and warrants that (a) it is not named on any UK government list of persons or entities prohibited from receiving UK exports, or transacting with any UK person; (b) it is not a national of, or a company registered in, any Prohibited Jurisdiction; (c) it will not permit any individuals under its control to access or use the Services in violation of any UK or other applicable export embargoes, prohibitions or restrictions; and (d) it will comply with all applicable laws regarding the transmission of technical data exported from the United Kingdom and the countries in which it and Authorized Users are located.
14.8. Anti-Corruption. Company agrees that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Desia’s employees or agents in connection with this MSA. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Company learns of any violation of the above restriction, Company will use reasonable efforts to promptly give notice to Desia.
14.9. Publicity and Marketing. Desia may use Company’s name, logo, and trademarks solely to identify Company as a client of Desia on Desia’s website and other marketing materials and in accordance with Company’s trademark usage guidelines, if Company provides same to Desia. Desia may share aggregated and/or anonymized information regarding use of the Services with third parties for marketing purposes to develop and promote Services. Desia never will disclose aggregated and/or anonymized information to a third party in a manner that would identify Company as the source of the information or Authorized Users or others personally. The Company may revoke the permission granted herein at any time by providing written notice to Desia. Upon receipt of such notice, Desia shall immediately cease using the Company’s name and logo in any future materials and shall take all reasonable steps to ensure that such use is discontinued.
14.10. Force Majeure. Desia shall not be liable for any failure or delay in the performance of its obligations under these Terms if such failure or delay is due to causes beyond its reasonable control, including, but not limited to, acts of God, natural disasters, war, civil unrest, governmental actions, labor disputes, cyberattacks, power outages, telecommunications failures, or any other event or circumstance beyond the Desia’s control. In the event of any such occurrence, the affected obligations shall be suspended for the duration of the event, and Desia shall use commercially reasonable efforts to resume performance of its obligations as soon as reasonably practicable.
14.11. Amendments. Desia may amend this MSA from time to time, in which case the new MSA will supersede prior versions. Desia will notify Company not less than thirty (30) days prior to the effective date of any such amendment and Company’s continued use of the Services following the effective date of any such amendment may be relied upon by Desia as consent to any such amendment. Desia’s failure to enforce at any time any provision of this MSA does not constitute a waiver of that provision or of any other provision of this MSA.
For questions about these Terms, contact Us at: info@desia.ai
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