Terms of Service

These Terms of Use (the “Terms”) govern access to and use of the Dioptra, Inc. (“Dioptra,” “we,” or “us”) website, applications, application add-ins or plug-ins (including a Microsoft Word plug-in), and other services provided by us (collectively, the “Services”). These Terms are a contract between Dioptra and you or the entity or organization that you represent.

If you are an individual using the Services for your own purposes: (1) all references to “User” or “you” are to you, and (2) you represent that you at least 18 years of age and are legally permitted and competent to agree to these Terms.

If you are using the Services on behalf of an entity or organization: (1) all references to “User” or “you” are to that entity or organization, and (2) you represent that you have the right, power and authority to agree to these Terms on behalf of Customer.

The Terms take effect when you use the Services (the “Effective Date”). By accessing or using any Service made available by Dioptra, you acknowledge that you have read and agree to be bound by these Terms. Dioptra may modify these Terms from time to time, in its sole discretion.The most current version of the Terms will be posted on the website and it is your responsibility to check the website periodically for changes. Your continued use of the Services following the effective date of any changes to these Terms constitutes acceptance of those changes.

1. 1. The Services

   1. Access. Subject to your acceptance and compliance with the Terms and any order terms, you have the right to access and use the Services
   2. User Accounts. Certain parts of the Services require that you have an individual account (“User Account”). You are responsible for ensuring that the information you provide in your registration (“User Account Data”) is and remains complete and accurate. You are responsible for all activity that happens on or through your User Account, whether it happens with or without your knowledge. You are responsible for keeping your User Account password confidential. You may not access or use another person's User Account. Dioptra is not liable for any harm you incur as a result of another person's use of your User Account and you maybe held liable for any harm Dioptra incurs as a result of another person's use of your User Account. You agree to notify Dioptra immediately of any unauthorized use of your account, user name or password. Each User Account is associated with a single email address and you will choose the email address you register for a User Account and the password. If the domain of the email address associated with a User Account is owned or controlled by an organization (such as your employer or school), you grant that organization and its User Account administrator(s) permission to: (a) identify User Accounts associated with the domain owned or controlled by the organization; and (b) administer your User Account (which includes suspending or canceling it, resetting the password, or accessing usage, profile, content, or other User Account information). You acknowledge and agree that Dioptra may assist the organization with such administration.
   3. Data. Through your use of the Services, you control the contracts and custom playbook remedies submitted or uploaded to the Services (collectively, “User Data”). You are responsible for obtaining all rights necessary for Dioptra’s processing of the User Data. By submitting User Data to the Services, you hereby grant to Dioptra the right, and are expressly instructing Dioptra, to process User Data in order to provide and support the Services. You authorize Dioptra to use information about your configuration and use of the Services (“Usage Data”), User Data and User Account Data to: (a) manage your account, including to calculate Fees; (b) provide and improve the Services and support;and (c) provide insights, service and feature announcements, and other reporting. You agree that, so long as no User Data is publicly disclosed, Dioptra may: (i) use User Data to refine, supplement or test Dioptra’s Services; (ii)include aggregated and anonymized User Data in any publicly available reports, analyses and promotional materials; and (iii) retain anonymized, non-attributable User Data following any termination for use in connection with the foregoing. Dioptra’s processing of User Account Data, Usage Data and User Data shall at all times be subject to Dioptra’s obligations under these Terms. You may choose to or we may invite you to submit comments or ideas about the Services, including without limitation about how to improve the Services or our products("Feedback"). Dioptra shall not be required to pay any compensation for any Feedback. Dioptra has the right, but not the obligation to incorporate any Feedback or to use any Feedback to improve the Services. Dioptra has no obligation to respond to any Feedback. You agree that Dioptra may, at any time, without restriction, edit, copy, publish, distribute, translate, and otherwise use in any medium any Feedback that you provide to us. Except to the extent the Feedback includes any User Data or your confidential information, Dioptra is not required to maintain any Feedback in confidence.
   4. User Systems. As between the Dioptra and you, you control the systems, platforms, services, software, devices, sites and/or networks that you may use in connection with your use of the Services (excluding the Services, the “User Systems”). You are solely responsible for selecting, implementing, activating, deactivating, and configuring the connections between the User Systems and the Services and configuring the Services, including with respect to how they interoperate with the User Systems. By connecting any User System with the Services, you hereby grant to Dioptra the right, and are expressly instructing Dioptra, to access and interoperate with that User System solely to provide and support the Services. You are responsible for ensuring that the access, use, and interoperation of User Systems with the Services complies with all terms, policies and licenses applicable to the User Systems and associated data.
   5. User Restrictions. You agree not to harm the Services and not to access or use the Services to harm others, including Dioptra. Prohibited activities include, but are not limited to, directly or indirectly (i) using the Services in a manner that is harmful, threatening, harassing, or otherwise objectionable to others; (ii) violating any law or regulation; (iii) impersonating others or misrepresenting or concealing your identity or your affiliation with others; (iv) violating or infringing the Intellectual Property Rights (as defined below) or other proprietary rights of others; (v) circumventing or otherwise interfering with security, access or usage restrictions, or other measures employed to control, restrict, or prevent access to the Services or other information contained on or obtained from or through the Services; (vi) damaging, disabling, interfering with, overburdening, or otherwise impairing the Services or any computer software or hardware or electronic communications equipment, including the uploading, distributing, or sending any computer viruses, malware, or other malicious code, files or programs that interrupt destroy, or limit the functionality of any computer software or hardware or electronic communications equipment; (viii) copying or modifying the Services or accessing the Services for the purpose of developing, operating, or improving a product or service that is competitive with the Services or that uses ideas, features, functions, or graphics similar to those of the Services, (ix) distributing, selling, leasing, or making any portion of the Services available for access by third parties in any manner other than as authorized by Dioptra; (x) framing the Services, place pop-up windows over its pages, or otherwise affect the display of its pages; or (x) reverse engineering or otherwise attempting to derive source code of the Services, except as permitted under applicable laws. You agree to comply with all laws and regulations, including U.S. federal, state, and local laws and regulations and export and re-export control laws and regulations applicable to you and your use of the Services. You agree to promptly notify Dioptra of any violation or suspected violation of these Terms and will cooperate in addressing the suspected violation. You acknowledge that Dioptra has no obligation to monitor access or use of the Services for violations of these Terms.
   6. Suspension. Dioptra may permanently or temporarily terminate or suspend your access to the Services for any reason and with no liability of any kind, including if in Dioptra’s determination you violate any provision of these Terms. Upon termination for any reason or no reason, you continue to be bound by these Terms.
   7. Not Legal Services. Dioptra is not a law firm and does not provide any legal advice, representation, legal opinions, recommendations, or counseling. Our Services are not substitutes for the advice of an attorney and if you need legal advice for your specific matter, you should consult a licensed attorney in your area. The playbook templates and other materials available through the Services, including any descriptions, information and other help resources (collectively, the "Dioptra Materials") are for informational purposes only; they are not legal advice and are not guaranteed to be correct, complete, or up-to-date. We do not review the Dioptra Materials or any information you input for accuracy or legal sufficiency or apply the law to the facts of your particular situation and the Dioptra Materials are not customized to your particular needs.
   8. Updates, Changes, and Discontinuation. Dioptra may from time to time provide enhancements or improvements to the features/ functionality of the Services, which may include patches, bug fixes, updates, upgrades and other modifications ("Updates"). Updates may modify or delete certain features and/or functionalities of the Services. You agree that Dioptra has no obligation to (i)provide any Updates, or (ii) continue to provide or enable any particular features and/or functionalities of the Service to you. You further agree that all Updates will be (i) deemed to constitute an integral part of the Service, and (ii) subject to the Terms. Dioptra may, without prior notice, change the Services, stop providing the Services or features of the Services, or create usage limits for the Services.Dioptra shall not be liable to you or to any third party in connection with any Updates, modifications, or cessation of the Services.
   9. Ownership. As between you and Dioptra: (a) you own all right, title and interest in and to User Systems and User Data, including in each case all associated Intellectual Property Rights, and (b) Dioptra owns all right, title and interest in and to the Services, the Dioptra Materials, documentation, Usage Data, Feedback(excluding any User Data contained therein), software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, and music (collectively, the "Dioptra Content") including in each case all associated Intellectual Property Rights. Except for the rights expressly granted by one party to the other under these Terms, all rights are reserved by the granting party. All rights granted by each party to the other under this section are limited, nonexclusive and, except as otherwise provided in these Terms, non-transferable.

2. 2. Pricing and Fees

   1. Payment for Services. Certain aspects of the Services may be provided for a fee. If you elect to use paid aspects of the Services, you agree to the then current pricing terms. Dioptra may add new Services for additional fees, or amend fees for existing Services, at any time in its sole discretion. Your use of the Services following such publicized pricing constitutes your acceptance of any new or increased fees. Except as provided in section 2.2 with respect to good faith disputes, you agree to pay all fees charged by Dioptra for your use of the Services in accordance with these Terms, the payment terms to which you agreed within the Services, and/or any applicable order. Except as otherwise provided in an order, fees must be paid in U.S. dollars and, subject to section 2.2, within 30 days of invoice.
   2. Payment Disputes. You must assert any good faith dispute with regard to fees in writing within 10 days of receipt of the invoice or charge giving rise to the dispute. Except in the event of a good faith dispute, if you fail to make payment when due, without limiting Dioptra’s other rights and remedies: (a) Dioptra may charge interest on the past due amount; (b) you shall reimburse Dioptra for all reasonable costs incurred by Dioptra in collecting any late payments or interest, including reasonable attorneys’ fees; and (c) if such failure continues for 15 days or more, Dioptra may suspend your access to the Services until such amounts are paid in full. Dioptra will not exercise its suspension or termination rights or apply interest on late fees if you dispute the applicable charges reasonably and in good faith and provide reasonable cooperation to resolve the dispute.
   3. Payment Methods. If you are paying fees using a credit card or any digital payment method supported by Dioptra, you authorize Dioptra to charge for the Services using that payment method. You must keep all User Account Data current to ensure that all fees are timely paid. If you fail to maintain a valid payment method, Dioptra may immediately suspend your use and access to the Services. Any change in your billing information will not affect charges Dioptra submits prior to the time Dioptra could reasonably act on such changes. Dioptra uses a third-party intermediary to manage credit card processing, and this intermediary is not permitted to use your credit card information except in connection with your authorized purchases. Notice (including email) from Dioptra’s third-party credit card processor declining your credit card or otherwise relating to your account will be deemed valid notice from Dioptra.
   4. Taxes. All fees are exclusive of taxes, levies, duties or charges imposed by government authorities (collectively, “Taxes”). Except for Taxes on Dioptra’s income, revenues, gross receipts, personnel or assets, you shall be solely responsible for all sales, service, value-added, use, excise, consumption and any other Taxes on amounts payable by you. Without limiting the foregoing, if you are required to deduct or withhold any Taxes under applicable laws outside the United States, you are responsible for remitting such Taxes in a timely manner and in accordance with those laws and you shall not offset any fees payable to Dioptra for any such remittances.

3. 3. Confidentiality.

   In connection with the use of the Services, either party may share or receive Confidential information from the other party. "Confidential Information" means (a) for Dioptra, the Services, performance of the Services, information and data related to the Services, (b) for you, your User Data, and (c) any information designated by one party (the "Disclosing Party") as confidential at the time of disclosure or that, due to the nature of the information, the other party (the “Receiving Party”) would clearly understand it to be confidential information of the Disclosing Party. Confidential Information shall not include information that (i) was or becomes generally known to the public through no fault or breach of these terms of service by Receiving Party; (ii) was or is in the Receiving Party’s possession without any restriction on use or disclosure; or (iii) was independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information. The Receiving Party will not disclose such Confidential Information to a third party, except on a need-to-know basis to its attorneys, auditors, consultants, and service providers who are under confidentiality obligations at least as restrictive as those contained herein, and will protect such Confidential Information from unauthorized use and disclosure to the same extent that it protects its own Confidential Information of a similar nature, but using no less than a reasonable degree of care. Notwithstanding the foregoing, you expressly authorize Dioptra to use and process User Data and User Account Data as described in the Dioptra Privacy Policy. Confidential Information will always remain the property of its owner. To the limited extent any use or disclosure is required by applicable law or a valid and binding order of a governmental body (such as a subpoena or court order), the Receiving Party may disclose only that portion of the Disclosing Party’s Confidential Information that it is required to disclose upon the advice of its counsel, provided that, to the extent permitted under applicable law, the Receiving Party uses reasonable efforts to give the Disclosing Party reasonable advance notice thereof to afford the Disclosing Party an opportunity to intervene and seek an order or other appropriate relief for the protection of its Confidential Information. In the event of any breach or threatened breach by the Receiving Party of its obligations under this section, the Disclosing Party will be entitled to seek injunctive and other equitable relief in any court of competent jurisdiction to enforce such obligations.

4. 4. Privacy and Security.

   We care about the privacy of our Users. You can view our privacy policy at https://www.dioptra.ai/privacy-policy. You consent to have your personal data collected, used, transferred to and processed in the United States. We have implemented commercially reasonable technical and organizational measures designed to secure your personal information from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You agree that you provide your personal information and other data provided to Dioptra at your own risk.

5. 5. DISCLAIMER.

   THE SERVICES, DIOPTRA MATERIALS, AND DIOPTRA CONTENT ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. USE OF THE SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM DIOPTRA OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, DIOPTRA AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR ACHIEVE ANY INTENDED RESULT; THAT THE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT THE SERVICES WILL BE ERROR FREE OR THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; THAT THE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR THAT THE SERVICES WILL BE COMPATIBLE, WORK WITH OR CONTINUE TO WORK WITH USER SYSTEMS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICES. DIOPTRA DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE DIOPTRA SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE, AND DIOPTRA WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. ANY DATA, ACCOUNT HISTORY AND ACCOUNT CONTENT RESIDING ON THE SERVERS RUNNING THE SERVICES MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN DIOPTRA’S SOLE DISCRETION, WITH OR WITHOUT NOTICE AND WITH NO LIABILITY OF ANY KIND. DIOPTRA DOES NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS, ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON THE SERVERS RUNNING THE SERVICES.

6. 6. Indemnification.

   Except to the extent prohibited by law, you will indemnify, defend, and hold harmless, Dioptra and its affiliates, officers, directors, employees, consultants, licensors, suppliers, agents, successors, and assigns from and against any action, claim, damage, loss, liability, cost, or expense (including reasonable attorneys' fees) arising from or related to (i) the access or use of the Services by you or through your User Account, (ii) any violation of these Terms by you or through your User Account, or (iii)User Data. Dioptra retains the exclusive right to settle, compromise, and pay, without your consent, any claims or causes of action that are brought against Dioptra. Dioptra reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you have indemnity obligations and you agree to cooperate with Dioptra’s defense of these claims. You agree not to settle, without Dioptra’s prior written consent, any matter for which you have indemnity obligations or in which Dioptra is named as a defendant. Dioptra will use reasonable efforts to notify you of any matter for which you have indemnity obligations in a timely manner. If the Services become, or in Dioptra’s opinion are likely to become, the subject of an intellectual property claim, Dioptra may in its discretion and at its own expense: (i) obtain for you the right to continue using the Services; (ii) modify the Services so that they no longer infringe or misappropriate; or (iii) cease providing the specific Services affected. Dioptra has the right, but not the obligation to defend or indemnify you for any intellectual property claim.

7. 7. LIMITATION OF LIABILITY.

   TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL DIOPTRA, ITS AFFILIATES, EMPLOYEES, AGENTS, CONTRACTORS, OFFICERS, DIRECTORS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, OR FOR DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES ARISING OUT OF OR RELATING TO THESE TERMS OR THE SERVICES. IN NO EVENT SHALL DIOPTRA, ITS AFFILIATES, EMPLOYEES, AGENTS, CONTRACTORS, OFFICERS, DIRECTORS, LICENSORS, OR SUPPLIERS BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH YOUR INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY PERMITTED TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICES; OR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES; OR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR YOUR USER ACCOUNT OR THE INFORMATION CONTAINED THERE IN. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, DIOPTRA ASSUMES NO LIABILITY OR RESPONSIBILITY FOR (I) ANY ERRORS, MISTAKES, OMISSIONS OR INACCURACIES OF CONTENT; (II) ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICES; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THERE IN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY; (VI) ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICES; AND/OR (VII) ANY USER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. DIOPTRA EXPLICITLY DISCLAIMS ANY AND ALL LIABILITY AND/OR RESPONSIBILITY FOR ANY DISCLOSURE OF INFORMATION THAT MAY BE DEEMED CONFIDENTIAL BY YOU OR ANY THIRD PARTY. EXCEPT FOR DIOPTRA'S OBLIGATIONS WITH RESPECT TO YOUR CONFIDENTIAL INFORMATION EXPRESSLY SET FORTH ABOVE, DIOPTRA EXPLICITLY DISCLAIMS ANY AND ALL LIABILITY AND/OR RESPONSIBILITY FOR ANY DISCLOSURE OF INFORMATION THAT MAY BE DEEMED CONFIDENTIAL BY YOU OR ANY THIRD PARTY. IN NO EVENT SHALL DIOPTRA, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY ACTION, CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES, LIABILITIES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO DIOPTRA HEREUNDER IN THE 12 MONTHS PRECEDING THE EVENTS GIVING RISE TO THE CLAIM. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF DIOPTRA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. THE PROVISIONS OF THIS SECTIONAL LOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THE EXCLUSIONS IN DETERMINING TO ENTER INTO THIS AGREEMENT AND THE PRICING FOR THE SERVICES.

8. 8. Term and Termination

   1. Term. These Terms, including any modifications, are effective from the Effective Date through the cessation of your use of the Services in accordance with any termination hereunder and the satisfaction of all obligations under these Terms.
   2. Termination. You may terminate your use of the Services at any time by contacting Dioptra at help@dioptra.ai. Dioptra may terminate your account or suspend access to the Services for any reason at our discretion, including your breach of these Terms.
   3. Effect of Termination. You understand and agree that you shall receive no refund in connection with any termination or suspension. Any and all liabilities that have accrued before the effective date of expiration or termination will survive. Upon expiration or earlier termination of a subscription: (i) all rights granted to you with respect to Services under such subscription will terminate effective as of the effective date of termination; (ii) Dioptra will have no obligation to provide the applicable Services to you; and (iii) you will make any payments required under section 2. In the event you continue to use the Services after termination, fees will be charged in accordance with Dioptra’s current pay as you go pricing.
   4. Survival. Any provisions in these Terms that by their nature should survive, will survive termination.

9. 9. Publicity.

   Neither party shall, except as otherwise required by applicable law or stock exchange requirements, issue or release any announcement, statement, press release or other publicity or marketing materials relating to the Terms or otherwise use the other party’s marks or logos without the prior written consent of the other party. Provided, however, Dioptra may include your name and logo in its lists of Dioptra customers, its public website and other promotional material, in each case in accordance with any brand guidelines you provide to Dioptra.

10. 10. Miscellaneous

    1. Entire Agreement. These Terms along with the Privacy Policy constitute the entire agreement between you and Dioptra regarding your use of the Services and supersedes all prior and contemporaneous written or oral agreements between you and Dioptra including any non-disclosure, evaluation, or trial agreement, and apply to the exclusion of any other terms which are implied by trade, custom, practice or course of dealing. Any terms and conditions of any other instrument issued by you in connection with the use of the Services which are in addition to, inconsistent with or different from these Terms shall be of no force or effect and are expressly rejected by Dioptra.
    2. Interpretation. Any ambiguities in the interpretation of these Terms shall not be construed against the drafting party. The headings used throughout these Terms are solely for the convenience of reference and are not to be used as an aid in the interpretation of these Terms. For purposes of these Terms, the words“include,” “includes” and “including” are deemed to be followed by the words“without limitation”; the word “or” is not exclusive; and the words “herein,”“hereof,” “hereby,” “hereto” and “hereunder” refer to these Terms as a whole.
    3. Severability and Waiver. If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect. Provided, however, if any material limitation or restriction on the use of the Services under these Terms is found to be illegal, unenforceable, or invalid, the license will immediately terminate. No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and either party’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
    4. Notice. Dioptra reserves the right to determine the form and means of providing notifications to our users. Such notifications, whether required by law or for marketing or other business related purposes, may be delivered to you via email, messaging apps, mail, or through conspicuous posting of such notice on the Dioptra website, as determined by Dioptra in its sole discretion. You agree that all such notifications we provide to you electronically satisfy any legal requirement that such notifications be in writing or be delivered in a particular manner and you agree to keep your User Account current. Dioptra is not responsible for any automatic filtering you or your network provider may apply to notifications we send to the address you provide us. We recommend that you addhelp@dioptra.ai to your email address book to help ensure you receive email notifications from us.
    5. Services are directed to users in the United States. The Services are controlled and operated from the United States. Dioptra makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States federal, state, and local laws and regulations, including import, export and re-export control laws and regulations. You may not use the Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Services are solely directed to individuals, companies, or other entities located in the United States.
    6. Export and Sanctions. You agree you shall comply with the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, the sanctions regulations administered by the Office of Foreign Assets Control, and any other applicable export laws, restrictions, and regulations (collectively, “Export Controls”) and ensure that no software, Services or technology or technical data related thereto in your custody or control are (a) exported, re-exported, or transferred in-country directly or indirectly in violation of Export Controls or (b) used by any person and/or for any purposes prohibited by Export Controls. You agree not to include any technology or technical data (with the exception of technology designated EAR99 on the Commerce Control List of the Export Administration Regulations) subject to Export Control restrictions in the User Data. Compliance with this section may require you to obtain one or more export licenses or other required approvals depending on factors such as the destination, end-users, and end-uses. You agree you will not, directly or indirectly, deliver the Services, technology, or technical data related thereto to (i)an individual, entity, country, or region identified on the Consolidated Screening List, available at https://www.trade.gov/consolidated-screening-list, (ii) an individual or entity in Russia or Belarus ((i) and (ii) collectively, “Sanctions Target”), or (iii) to any party that is 50% owned by one or more Sanctions Target. Each Party represents that (a) it is not a Sanctions Target; and (b) it is not otherwise prohibited (based on 50% ownership, location for operations or use or other legally relevant factors) from providing or receiving Services, as applicable, without a license or other approval under Export Controls.
    7. U.S. Government Customers. The Services are provided to the U.S. Government as “commercial items,” “commercial computer software,”“commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Services. If you are using Services on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, you must immediately discontinue use of the Services. The terms listed above are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
    8. Independent Parties; No Third-Party Beneficiaries. At all times, you and Dioptra are independent contractors, and are not the agents or representatives of the other. These Terms are not intended to create a joint venture, partnership, or franchise relationship between the parties. Non-parties do not benefit from and cannot enforce these Terms. There are no third-party beneficiaries to these Terms. You must not represent to anyone that you are an agent of Dioptra or are otherwise authorized to bind or commit Dioptra in any way without Dioptra’s prior written authorization.
    9. Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you without Dioptra’s prior written consent. ,but may be transferred or assigned by Dioptra without restriction. If consent is given, these Terms will bind your successors and assigns. Any assignment except as expressly permitted is void. Dioptra may, at any time, freely assign its rights, duties, and obligations hereunder without notice to you.
    10. Force Majeure. Neither party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached these Terms, for any failure or delay in fulfilling or performing any obligation (except for any obligations to make payments for Services received), when and to the extent such failure or delay is caused by events outside of the reasonable control of the affected party, including acts of God; pandemics; flood, fire or explosion; war, invasion, riot or other civil unrest; terrorist or criminal acts; cyberattacks; internet disruptions;embargoes or blockades in effect on or after the Effective Date; or national or regional emergency (each a “Force Majeure Event”). The party affected by the Force Majeure Event will provide notice to the other party within a commercially reasonable time and will use commercially reasonable efforts to resume performance as soon as practicable.
    11. Governing Law and Venue. These Terms shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to the choice of law rules of that state. Any legal action or proceeding arising under or relating to these Terms shall be brought exclusively in the state or federal courts located in Kings County, New York, USA, and the parties expressly consent to personal jurisdiction and venue in those courts, unless submitted to arbitration as set forth in the following paragraph. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods are specifically excluded from application to these Terms. You agree that:the Services shall be deemed solely based in New York and shall be deemed passive that do not give rise to personal jurisdiction over Dioptra, either specific or general, in jurisdictions other than New York.
    12. Limited arbitration rights. For any claim (excluding claims for injunctive or other equitable relief) under these Terms where the total amount of the awards ought is less than $10,000, the party requesting relief may elect to resolve the dispute through binding non-appearance-based arbitration. The party electing such arbitration shall initiate the arbitration through an established alternative dispute resolution provider mutually agreed upon by the parties. The alternative dispute resolution provider and the parties must comply with the following rules:a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, as selected by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.