Terms of Service

Recitals

A. DepthFirst AI operates the Subscription Services and provides access to and use of the Subscription Services to its customers; and

B. Customer desires to access and use the Subscription Services, and DepthFirst AI is willing to provide such access, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

‍

1. DEFINITIONS.

1. “Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Customer Materials; or (ii) Customer’s and/or its Authorized Users’ Use of the Subscription Services, including, without limitation, any usage data or trends with respect to the Subscription Services.
   ‍
2. “Authorized User” means an employee whom Customer has authorized to Use the Subscription Services.
   ‍
3. “DepthFirst AI IP” means the Subscription Services, the underlying software provided in conjunction with the Subscription Services, algorithms, AI models, AI systems, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Subscription Services, Documentation and Aggregate Data, all improvements, modifications or enhancements to or derivative works of, the foregoing (regardless of inventorship or authorship) and all Intellectual Property Rights in and to any of the foregoing.
   ‍
4. “Customer Materials” means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the Subscription Services or to DepthFirst AI in connection with Customer’s Use of the Subscription Services, but excluding, for clarity, Aggregate Data and any other information, data, data models, content or materials owned or controlled by DepthFirst AI and made available through or in connection with the Subscription Services. 
   ‍
5. “Documentation” means training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by DepthFirst AI to Customer (including any revised versions thereof) relating to the Subscription Services, which may be updated from time to time upon notice to Customer.
   ‍
6. “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights and any other intellectual property rights recognized in any country or jurisdiction in the world.
   ‍
7. “Licensed Volume” means the limits, volume or other measurement or conditions of permitted Use for the applicable Subscription Service as set forth in the applicable Order Form, including any limits on the number of Authorized Users permitted to Use the Subscription Services based on Customer’s subscription tier.
   ‍
8. “Order Form” means a (i) mutually executed order form or other mutually agreed upon ordering document; (ii) purchase order issued by Customer and accepted by DepthFirst AI in writing; or (iii) quote issued by DepthFirst AI and accepted by Customer, in each case which references this Agreement and sets forth the applicable Subscription Services to be provided by DepthFirst AI.
   ‍
9. “Person” means any individual, corporation, partnership, trust, limited liability company, association, governmental authority or other entity.
   ‍
10. “Subscription Services” means the proprietary software solution offered by DepthFirst AI which is designed to help customers detect and patch security vulnerabilities, including without limitation any updates, patches, bug fixes and upgrades thereto, as more particularly described or identified in the applicable Order Form.
11. “Use” means to use and/or access the Subscription Services in accordance with this Agreement and the Documentation.

‍

2. SUBSCRIPTION SERVICES; ACCESS AND USE.

1. Subscription Services. Subject to the terms and conditions of this Agreement, DepthFirst AI hereby grants Customer a limited, non-exclusive, non-transferable (except as permitted under the assignment provision in the General Terms) right to Use the Subscription Services during the Term, solely for Customer’s internal business purposes and subject to the Licensed Volume.
2. Use Restrictions. Customer will not at any time and will not permit any Person (including, without limitation, Authorized Users) to, directly or indirectly: (i) use the Subscription Services in any manner beyond the scope of rights expressly granted in this Agreement; (ii) modify or create derivative works of the Subscription Services or Documentation, in whole or in part; (iii) decipher, reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain improper access to any software component of the Subscription Services or any components, models, algorithms or systems used to provide the Subscription Services, in whole or in part, or engage in any of the adversarial attacks set forth in the NIST AI 100-2 E2025 publication available at https://nvlpubs.nist.gov/nistpubs/ai/NIST.AI.100-2e2025.pdf; (iv) frame, mirror, sell, resell, rent or lease use of the Subscription Services to any other Person or otherwise allow any Person to use the Subscription Services for any purpose other than for the benefit of Customer in accordance with this Agreement; (v) use the Subscription Services, Output or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person or that violates any applicable law; (vi) interfere with, or disrupt the integrity or performance of, the Subscription Services or any data or content contained therein or transmitted thereby; (vii) access or search the Subscription Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Subscription Services features provided by DepthFirst AI for use expressly for such purposes; (viii) use the Subscription Services, Documentation or any other DepthFirst AI Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Subscription Services; (ix) use the Subscription Services or any Output in a manner that violates any usage policies made publicly available by applicable third-party artificial intelligence providers; or (x) utilize the Subscription Services (including any AI models or derivatives thereof), Documentation or Output to train, improve or have trained or improved an AI model (e.g., engage in “model scraping” or “model distillation”).
3. Authorized Users. Customer will not allow any Person other than Authorized Users to Use the Subscription Services. Customer may permit Authorized Users to Use the Subscription Services, provided that (i) the Use, including the number of Authorized Users, does not exceed the Licensed Volume; and (ii) Customer ensures each Authorized User complies with all applicable terms and conditions of this Agreement and Customer is responsible for acts or omissions by Authorized Users in connection with their Use of the Subscription Services. Customer will, and will require all Authorized Users to, use all reasonable means to secure usernames and passwords, hardware and software used to access the Subscription Services in accordance with customary security protocols, and will promptly notify DepthFirst AI if Customer knows or reasonably suspects that any user name and/or password has been compromised. Each account for the Subscription Services may only be accessed and used by the specific Authorized User for whom such account is created.
4. Third-Party Services. Certain features and functionalities within the Subscription Services may allow Customer and its Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”) through the Subscription Services. DepthFirst AI does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Subscription Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. Customer is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Customer to use the Third-Party Services in connection with the Subscription Services.
5. Reservation of Rights. Subject to the limited rights expressly granted hereunder, DepthFirst AI reserves and, as between the Parties will solely own, the DepthFirst AI IP and all rights, title and interest in and to the DepthFirst AI IP and to the Subscription Services, including all AI models and AI systems. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein. 
6. Feedback. From time to time Customer or its employees, contractors or representatives may provide DepthFirst AI with suggestions, comments, feedback or the like with regard to the Subscription Services (collectively, “Feedback”). Customer hereby grants DepthFirst AI a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with DepthFirst AI’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Subscription Services.

‍

3. FEES AND PAYMENT.

1. Fees. Customer will pay DepthFirst AI the non-refundable fees set forth in the relevant Order Form in accordance with the terms therein (“Fees”) and without offset or deduction. DepthFirst AI reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then-current Renewal Term, upon sixty (60) days’ prior notice to Customer (which may be sent by email). Except as otherwise provided in the relevant Order Form, DepthFirst AI will issue monthly invoices to Customer during the Term and Customer will pay all amounts set forth on any such invoice no later than thirty (30) days after the date of such invoice. If Customer has signed up for automatic billing, DepthFirst AI will charge Customer’s selected payment method (such as a credit card, debit card, gift card/code or other method available in Customer’s home country) for any Fees on the applicable payment date, including any applicable taxes. If DepthFirst AI cannot charge Customer’s selected payment method for any reason (such as expiration or insufficient funds), Customer remains responsible for any uncollected amounts and DepthFirst AI will attempt to charge the payment method again as Customer may update its payment method information. In accordance with local law, DepthFirst AI may update information regarding Customer’s selected payment method if provided such information by Customer’s financial institution.
2. Payments. Payments due to DepthFirst AI under this Agreement must be made in U.S. dollars by check, wire transfer of immediately available funds to an account designated by DepthFirst AI or such other payment method mutually agreed by the Parties. All payments are non-refundable and neither Party will have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other Party under this Agreement. If Customer fails to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law and DepthFirst AI may suspend Customer’s access to the Subscription Services until all payments are made in full. Customer will reimburse DepthFirst AI for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest.
3. Taxes. Customer is responsible for all sales, use, ad valorem and excise taxes and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Customer to DepthFirst AI hereunder, other than any taxes imposed on DepthFirst AI’s income. Without limiting the foregoing, in the event that Customer is required to deduct or withhold any taxes from the amounts payable to DepthFirst AI hereunder, Customer will pay an additional amount, so that DepthFirst AI receives the amounts due to it hereunder in full, as if there were no withholding or deduction.

‍

4. CONFIDENTIAL INFORMATION.

1. Definitions. As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the Subscription Services and the Documentation will be deemed Confidential Information of DepthFirst AI. However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party. 
2. Obligations and Permitted Disclosures. The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that DepthFirst AI may use and modify Confidential Information of Customer in deidentified form for purposes of developing and deriving Aggregate Data. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure. 
3. Duration. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
4. Disclosure for Due Diligence. The terms and conditions of this Agreement will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.

‍

5. SUPPORT

During the Term, DepthFirst AI will use commercially reasonable efforts to provide reasonable technical support to Customer in connection with its Use of the Subscription Services, whether by electronic mail or as communicated by DepthFirst AI to Customer, subject to the following conditions: (i) prior to initiating any support request, Customer (and its own personnel responsible for information technology support) will have first attempted to resolve the issue generating the need for such support; and (ii) Customer will reasonably cooperate with DepthFirst AI support staff as needed to resolve the issue.

‍

6. CUSTOMER MATERIALS, INPUT AND DATA.

1. Ownership. DepthFirst AI acknowledges that, as between Customer and DepthFirst AI and except as set forth in Section 6(b), Customer owns and retains all right, title and interest in and to all Customer Materials.
2. License. Customer hereby grants DepthFirst AI a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, modify the Customer Materials and Input (defined below) solely for the purpose of hosting, operating, and providing the Subscription Services during the Term and to comply with applicable law.  
3. Rights and Compliance. Customer represents and warrants that (i) it has obtained and will obtain and continue to have, during the Term, all necessary rights, authority and licenses for the access to and use of the Customer Materials and Input as contemplated by this Agreement and (ii) DepthFirst AI’s use of the Customer Materials or Input in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party.
4. Input and Output. The Subscription Services may generate output for Customer (each, “Output”) in response to Customer’s interaction, request or input, or to Customer Materials uploaded or submitted to influence the Output or Subscription Services (collectively, “Input”). As between Customer and DepthFirst AI, to the extent permitted by applicable law and subject to Section 2(e): (1) Customer owns and is responsible for all Input that Customer provides; and (2) subject to Customer’s compliance with this Agreement (including without limitation Section 2(b)(x)), DepthFirst AI assigns to Customer any right, title and interest in and to the Output generated by Customer’s Input that DepthFirst AI might otherwise have. Customer may not sell the Output or share it for commercial benefit to any third parties. DepthFirst AI may use and modify Customer’s Input and Output to enforce any applicable acceptable use policies or usage policies (including those set forth in Section 2(b)(ix)) and to comply with applicable law. For clarity, subject to Section 2(a) and 2(b), DepthFirst AI shall not share Customer Materials, Input or Output with any other customer nor use Customer Materials, Input or Output to train its AI models.

‍

7. REPRESENTATIONS AND WARRANTIES.

Each Party hereby represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; and (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party and constitute a valid and binding agreement of such Party. Customer further represents and warrants that it has all necessary rights to submit Customer Materials and Input to the Subscription Services, and neither Customer Materials, Input, nor Customer’s use and provision of Customer Materials or Input to be made available through the Subscription Services, nor any use of Customer Materials or Input by DepthFirst AI on or through the Subscription Services will infringe, misappropriate or violate a third party’s Intellectual Property Rights, rights of publicity or privacy or result in the violation of any applicable law or regulation.

‍

8. INDEMNIFICATION.

1. DepthFirst AI Indemnification. Subject to Section 8(b), DepthFirst AI will defend Customer against any claim, suit or proceeding brought by a third party (“Claims”) alleging that Customer’s Use of the Subscription Services infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by DepthFirst AI (including reasonable attorneys’ fees) resulting from such Claim.
2. Exclusions. DepthFirst AI’s obligations under Section 8(a) will not apply if the underlying third-party Claim arises from or as a result of: (i) Customer’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Customer Materials; (iii) Customer’s failure to use any enhancements, modifications or updates to the Subscription Services that have been provided by DepthFirst AI; (iv) modifications to the Subscription Services by anyone other than DepthFirst AI; or (v) combinations of the Subscription Services with software, data or materials not provided by DepthFirst AI.
3. IP Remedies. If DepthFirst AI reasonably believes the Subscription Services (or any component thereof) could infringe any third party’s Intellectual Property Rights, DepthFirst AI may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Subscription Services, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Customer to continue Use. If DepthFirst AI determines that neither alternative is commercially practicable, DepthFirst AI may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Customer. In the event of any such termination, DepthFirst AI will refund to Customer a pro-rata portion of the Fees that have been paid for the unexpired portion. The rights and remedies set forth in this Section 8 will constitute Customer’s sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the Subscription Services. 
4. Customer Indemnification. Customer will defend DepthFirst AI against Claims arising from (i) any Customer Materials, Input, (or their processing or use by DepthFirst AI), including, without limitation, (A) any Claim that the Customer Materials infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of Customer Materials violates any applicable law, rule or regulation; (ii) any of Customer’s products or services; and (iii) Use of the Subscription Services by Customer or its Authorized Users in a manner that is not in accordance with this Agreement or the Documentation, including, without limitation, any breach of the license restrictions in Section 2(b) and in each case, will indemnify and hold harmless DepthFirst AI against any damages and costs awarded against DepthFirst AI or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim.
5. Indemnification Procedures. The Party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.

‍

9. DISCLAIMERS.

1. General Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SUBSCRIPTION SERVICES, OUTPUT AND OTHER DEPTHFIRST AI IP ARE PROVIDED ON AN “AS IS” BASIS, AND DEPTHFIRST AI MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE DEPTHFIRST AI IP, THE SUBSCRIPTION SERVICES, OUTPUT, OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DEPTHFIRST AI HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, DEPTHFIRST AI HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE SUBSCRIPTION SERVICES OR OUTPUT WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED.
2. Similarity, Accuracy and Appropriateness of Output. Due to the nature of machine learning, Output may not be unique and the Subscription Services may generate the same or similar output for DepthFirst AI or a third party. For clarity, DepthFirst AI’s assignment of Output as set forth in Section 6(d) does not extend to other DepthFirst AI customers’ output. GIVEN THE PROBABILISTIC NATURE OF MACHINE LEARNING, THE SUBSCRIPTION SERVICES MAY IN SOME SITUATIONS PRODUCE OUTPUT THAT IS INACCURATE, INCORRECT, OFFENSIVE OR OTHERWISE UNDESIRABLE. THE ACCURACY, QUALITY AND COMPLIANCE WITH APPLICABLE LAW OF THE OUTPUT IS DEPENDENT UPON AND COMMENSURATE WITH THAT OF THE INPUT PROVIDED AND CUSTOMER’S COMPLIANCE WITH THESE TERMS, AND NOTWITHSTANDING ANYTHING ELSE SET OUT HEREIN, DEPTHFIRST AI WILL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR ANY LOSS OR DAMAGES RELATING TO OR ARISING FROM CUSTOMER MATERIALS, INPUT, OUTPUT OR THEIR USE. Customer will evaluate the content, nature and accuracy of any Output as appropriate for the applicable use case, including by using human review of the Output.

‍

10. LIMITATIONS OF LIABILITY.

1. Exclusion of Damages. EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILFUL MISCONDUCT BY EITHER PARTY OR (III) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION OR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE DEPTHFIRST AI IP OR THE PROVISION OF THE SUBSCRIPTION SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
2. Total Liability; Basis of the Bargain. IN NO EVENT WILL DEPTHFIRST AI’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS ARISING FROM ALL CLAIMS UNDER OR RELATED TO THIS AGREEMENT, THE DEPTHFIRST AI IP OR THE PROVISION OF THE SUBSCRIPTION SERVICES EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO DEPTHFIRST AI IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE APPLICABLE CLAIM (THE “LIABILITY CAP”). THE LIABILITY CAP APPLIES TO ALL PAST AND PRESENT CLAIMS OF ANY KIND MADE UNDER OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED AND WHETHER OR NOT DEPTHFIRST AI WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 10 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN DEPTHFIRST AI AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE. THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT AND THE LIABILITY CAP IS NOT CUMULATIVE; IF A PARTY RECOVERS AMOUNTS PURSUANT TO ONE OR MORE CLAIMS SUBJECT TO THIS LIABILITY CAP, THOSE AMOUNTS WILL BE DEDUCTED FROM THE CAP.

‍

11. TERM AND TERMINATION.

1. Term. The initial term of this Agreement begins on the Effective Date and expires at the end of the Initial Term specified in the relevant Order Form (the “Initial Term”). Following the Initial Term, this Agreement will automatically renew for additional periods of one (1) year (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either Party provides the other with at least thirty (30) days’ written notice of its intent not to renew this Agreement prior to the end of the then-current Term.
2. Termination. Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.
3. Survival. This Section 11(c) and Sections 1, 2(b), 2(e), 2(f), 3, 4, 6, 7, 8, 9, 10, 11(d) and 13 survive any termination or expiration of this Agreement. 
4. Effect of Termination. Upon expiration or termination of this Agreement, the rights granted pursuant to Section 2(a) will terminate, and Customer will return or destroy, at DepthFirst AI’s sole option, all DepthFirst AI Confidential Information in its possession or control, including permanent removal of such DepthFirst AI Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Customer’s possession or under Customer’s control and at DepthFirst AI’s request, certify in writing to DepthFirst AI that the DepthFirst AI Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due or otherwise accrued through the effective date of expiration or termination, or entitle Customer to any refund.

‍

12. TRADEMARKS

Customer hereby grants DepthFirst AI a limited, non-exclusive, royalty-free license to use and display Customer’s name, designated trademarks and associated logos (the “Customer Marks”) during the Term in connection with (i) the hosting, operation and maintenance of the Subscription Services; and (ii) DepthFirst AI’s marketing and promotional efforts for its products and services, including by publicly naming Customer as a customer of DepthFirst AI and in case studies. All goodwill and improved reputation generated by DepthFirst AI’s use of the Customer Marks inures to the exclusive benefit of Customer. DepthFirst AI will use the Customer Marks in the form stipulated by Customer and will conform to and observe such standards as Customer prescribes from time to time in connection with the license granted hereunder.

‍

13. GENERAL TERMS.

Neither Party may assign, transfer or sublicense this Agreement, by operation of law or otherwise, without the other Party’s prior written consent, except to a successor entity in the event of a merger, consolidation or sale of all or substantially all of the assets of such Party, and any attempt by either Party to do so, without such consent, will be void.  Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns. Customer affirms that it is not named on, owned by, or acting on behalf of any U.S. government denied-party list, and it agrees to comply fully with all relevant export control and sanctions laws and regulations of the United States (“Export Laws”) to ensure that neither the Subscription Services, software, any Customer Materials, nor any technical data related thereto is: (i) used, exported or re-exported directly or indirectly in violation of Export Laws; or (ii) used for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, or biological weapons proliferation, missile systems or technology, or restricted unmanned aerial vehicle applications. Customer will complete all undertakings required by Export Laws, including obtaining any necessary export license or other governmental approval. Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect. This Agreement, including its exhibits and any Order Form(s), is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other’s behalf without such other Party’s prior written consent. Except as expressly set forth in this Agreement, the exercise by either Party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver. DepthFirst AI may change this Agreement from time to time by posting the updated Agreement at https://depthfirst.com/terms and notifying Customer at least thirty (30) days before such changes take effect (including by email to the notice email set forth in the applicable Order Form, or if not specified, to the primary business contact email used in connection with the Order Form), and Customer’s continued Use of the Subscription Services on or after the effective date of such changes constitutes Customer’s acceptance of the changes. This Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the Parties irrevocably consent to the personal jurisdiction and venue therein. All notices required to be sent hereunder will be in writing (email being sufficient) and will be sent to the notice addresses or notice emails set forth in the applicable Order Form (or, if not specified for a Party, to the primary business contact email used in connection with the Order Form). Notices will be deemed given when delivered by nationally recognized overnight courier, when mailed by certified mail (return receipt requested), or when sent by email with confirmation of receipt.