ThinkDiffusion Terms of Service and End User License Agreement

This ThinkDiffusion Terms of Service and End User License Agreement (this"Agreement") is entered into by and between you and Think Diffusion Inc., a Delaware corporation ("ThinkDiffusion," "we," "us" or "our") and governs your access to and use of any and all services provided to you by ThinkDiffusion, including (i) any services made available to you as set forth in an Order Form that references this Agreement, (ii) any free services provided by us to you in connection with this Agreement, (iii) any support services provided by us to you in accordance with this Agreement, and (iv) the website located at https://www.thinkdiffusion.com/ and all of its subdomains (items (i) through (iv) being, collectively, the "Services") and any software that you may be required to download and install to access the Services (the "Software"), unless you and ThinkDiffusion have entered into a written Custom Service Agreement ("CSA"), in which case such CSA will govern your access to and use of the Services and Software and not this Agreement.

Please read this Agreement carefully before you use the Services or Software. By using the Services or Software, or by clicking to accept this Agreement when this option is made available to you, you accept and agree to be legally bound and abide by this Agreement as well as our privacy policy found at https://www.thinkdiffusion.com/policies/privacy (the "Privacy Policy"), incorporated herein by reference. If you do not want to agree to this Agreement or the Privacy Policy, you must not access or use the Services or Software.

The Services and Software are offered and available to users who are 18 years of age or older and who reside in a jurisdiction where access and use of the Services and Software is not otherwise prohibited by law. By using the Services and Software, you represent and warrant that you are of legal age to form a binding contract with us and meet all of the foregoing eligibility requirements. If you are accepting this Agreement and using the Services and Software on behalf of a company, organization, government, or other legal entity, you represent and warrant that you are authorized to do so and have the authority to bind such entity to this Agreement. If you do not meet all of these requirements, you must not access or use the Services or Software.

We may revise and update this Agreement from time to time in our sole discretion. All changes are effective immediately when we post them and apply to all access and use of the Services and Software thereafter.

Your continued use of the Services and Software following the posting of a revised Agreement means that you accept and agree to the changes. You are expected to check this page from time to time so you are aware of any changes, as they are binding on you.

You may be required to provide information about yourself to register for and to access or use the Services and Software. You represent and warrant that any such information is and will remain accurate and complete, and that we have no liability whatsoever for errors and omissions in the information you provide. You agree that all information you provide to register with the Services and Software is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.

If you choose, or are provided with, a username, password, or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your account is personal to you and agree not to provide any other person with access to the Services or Software using your username, password, or other security information. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security.

We have the right to restrict your access to the Services and Software, including disabling any username, password, or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any reason, including if, in our opinion, you have violated any provision of this Agreement.

You may order the Services through an online registration or order form approved and authorized by us (each an "Order Form"). Any order for the Services made pursuant to an Order Form is subject to this Agreement. An Order Form may contain additional or different terms, conditions, and information regarding the Services you are ordering, including the parameters of your use, such as plan level, territory, division/department, number of authorized users and free trials granted, if any.

In the event of any conflict or inconsistency between this Agreement and any Order Form, the applicable Order Form controls and governs over this Agreement, to the extent necessary to resolve the particular conflict or inconsistency. We will provide the Services and Software set forth in your Order Form and standard updates to the Services and Software that we make generally available. We may, in our sole discretion, (i) discontinue the Services, or (ii) modify the features or functionality of the Services or Software.

Without limiting our rights under this Agreement, you acknowledge that we are not required to provide any new Services or Software set forth in an Order Form until all outstanding balances due and owing for your use of existing Services and Software are paid in full.

Subject to this Agreement, you may access and use, during the applicable subscription or renewal term, the Services as set forth on each applicable Order Form. If access to or use of any portion of the Services requires or allows for you to download, use, or install Software, we grant you a limited, revocable, non-exclusive, non-transferable, non-assignable, non-sublicensable, and royalty-free license to use the Software in object code format on a compatible device for your internal use only, solely to access and use the Services during the applicable subscription or renewal term. You acknowledge and agree that your access to and use of the Services and Software is revocable in our sole discretion.

Subject to this Agreement, we grant you a limited, revocable, non-exclusive, non-transferable, non-assignable, non-sublicensable, and royalty-free license for you to use ThinkDiffusion-provided operator, technical and user manuals, training materials, guides, listings, specifications, and other materials that describe the functionality of the Services and Software, whether in hard copy or electronic forms, as may be furnished by us from time to time (collectively, the "Documentation") solely for your internal business purposes in connection with use of the Services or Software during the applicable subscription or renewal term.

You acknowledge that, notwithstanding anything to the contrary herein: (i) the Services are provided to you on a subscription basis; (ii) the Software and Documentation are provided to you under a limited license; and (iii) neither the Services, the Software nor the Documentation have been sold to you. You also acknowledge that you have neither obtained nor will obtain any ownership or other right, title, or interest in or to the Services, Software, or Documentation or any copyright, patent, trade secret, know-how, trademark, service mark, trade name, rights of publicity, or other intellectual property or proprietary rights (collectively, the "Proprietary Rights") relating thereto. Any copies of Software will remain the exclusive property of ThinkDiffusion. The Software may include code that is licensed to you under third party license agreements, including open-source software made available or provided with the Software. Without limiting the generality of the foregoing, we own all right, title, and interest in and to all upgrades, enhancements, new releases, changes, and modifications to the Services or Software, together with all ideas, architecture, algorithms, models, processes, techniques, user interfaces, database design and architecture, and "know-how" embodying the Services and Software. Under no circumstances will you be deemed to receive, have, or be granted title to all or any portion of the Services, Software, or Documentation, title to which at all times vests exclusively in ThinkDiffusion. None of the Services, Software, or Documentation, or any component thereof, is or shall be deemed to be a "work made for hire," as that term is defined in 17 U.S.C. §101.

You will—and you will cause anyone whom you have authorized to use the Services and Software on your behalf ("Authorized Users") to—abide by and ensure compliance with this Agreement. Use of the Services and Software is void where prohibited. You are responsible for you and your Authorized Users' access to and use of the Services and Software. You are responsible for the activities of all your Authorized Users, including ensuring that all Authorized Users will comply with this Agreement and any applicable ThinkDiffusion policies. You acknowledge that you remain liable for the acts and omissions of any third party that you allow, enable, or otherwise provide access to the Services or Software, whether or not such access was expressly permitted by us.

We assume no responsibility or liability for violations of this Agreement by Authorized Users or any other third party that you allow, direct, or enable to access the Services or Software. If you become aware of any violation of this Agreement in connection with use of the Services or Software by any person, you must contact us at admin@thinkdiffusion.com.

Under no circumstances will we be liable in any way for any data or other content viewed while using the Services and Software, including any errors or omissions in any such data or other content, or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any data or other content.

We may investigate any complaints and violations that come to our attention and may take any action, in our sole discretion, including issuing warnings, suspending, or disconnecting the Services or Software, removing the applicable data or other content, terminating accounts or Authorized User profiles, or taking other reasonable actions in our sole discretion.

Your use of the Services and Software requires one or more compatible devices, Internet access, and certain third-party software, and you may be required to obtain updates or upgrades from time to time for Software or third-party software, which may result in additional costs to you. Because use of the Services and Software involves hardware, software, and Internet access, your ability to access and use the Services and Software may be affected by the performance of the foregoing. You are solely responsible for any fees that may apply to your access to or use of the Services and Software, including fees for hardware, software, Internet access, or text messages. You agree that the foregoing requirements are your responsibility, and we may, in our sole discretion, discontinue availability or compatibility of the Services or Software, on a particular operating system, device, or platform.

You may only use the Services and Software for lawful purposes and in accordance with this Agreement. You agree not to: (i) sell, rent, copy, lease, lend, publish, or distribute the Software; (ii) allow more than the permitted number of Authorized Users to use the Services or Software; (iii) use the Services or Software in any way that violates any applicable federal, state, local or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the U.S. or other countries); (iv) impersonate or attempt to impersonate ThinkDiffusion, a ThinkDiffusion employee, another user or any other person or entity; (v) use the Services or Software in any manner that could disable, overburden, damage, or impair the Services or interfere with any other party's use of the Services; (vi) modify, customize, disassemble, decompile, prepare derivative works of, create improvements, derive innovations from, reverse engineer, or attempt to gain access to any underlying technology of the Services or Software, including any source code, process, data set or database, management tool, development tool, server or hosting site; (vii) use Output (as defined below) to develop any products or services that compete with ThinkDiffusion; (viii) utilize any equipment, device, software, or other means to (or designed to) circumvent or remove any form of technical protection used by us in connection with the Services or Software; or (ix) remove, delete, alter, or obscure any Proprietary Rights notices provided on or with the Services or Software, including any copy thereof.

You acknowledge and agree that in the event of any breach of the provisions of this section, ThinkDiffusion would suffer irreparable injury for which monetary damages would be an inadequate remedy, and, without limitation of any other rights or remedies, we will be entitled to seek equitable relief, including injunctive relief, for such breach in any court of competent jurisdiction.

Any data, content, communications, messages, files, documents, or other materials (collectively "Content") that you or your Authorized Users provide in connection with the Services or Software is referred to in this Agreement as "Input," and any Content generated by the Services or Software from Input is referred to in this Agreement as"Output." Input and Output are referred to collectively in this Agreement as "User Content."

As between you and ThinkDiffusion, and to the extent permitted by applicable law, you (i) retain all ownership rights in Input and (b) own all Output. We hereby assign to you all our right, title, and interest, if any, in and to Output generated from your Input. However, you acknowledge that given the nature of generative artificial intelligence, Output may not be unique, and other users may receive similar content from the Services and Software. As such, our assignment of Output above does not extend to other users' output.

We will process and store User Content in accordance with our legal commitments and, where User Content contains Personal Information, our Privacy Policy. We will only use User Content as necessary to provide you with the Services and Software, comply with applicable law, and enforce this Agreement.

You are responsible for all Input and represent and warrant that you have all rights, licenses, and permissions required to provide Input to the Services and Software. You are solely responsible for all use of Output and evaluating all Output for accuracy and appropriateness for your applicable use case, including human review as appropriate. Furthermore, we do not take responsibility for any User Content and shall not be liable for any violations of copyrights, trademarks, or other intellectual property rights, or for any unlawful use of User Content by you, your authorized Users or any third party.

You grant ThinkDiffusion a perpetual, worldwide, non-exclusive, royalty-free, sublicensable, and transferable license and all other rights required or necessary for ThinkDiffusion to access, process or use User Content for the following reasons: (i) consistent with this Agreement and as required to perform our obligations and provide the Services; (ii) in accordance with our Privacy Policy; (iii) as authorized or instructed by you; (iv) as required by law; (v) to allow us to test the efficacy of the Services and Software (but not to train any of our models); or (v) for legal, safety or security purposes.

You agree that we may charge your credit card, debit card, purchase order or other payment mechanism selected by you and approved by us ("Payment Method") for all amounts due and owing in connection with your use of the Services, as set forth in the applicable Order Form or otherwise used or ordered by or for you through the Services, including set up fees, one-time fees, non-recurring fees, overages, per-use charges, subscription fees, recurring fees, and any other fees and charges associated with the Services or your account ("Charges"). Charges may include sales tax but unless otherwise expressly specified in an Order Form, are exclusive of any use, excise, and value added taxes (but not including taxes based on our income) imposed by any federal, provincial, state, or local governmental entity for the Services and Software.

You agree to promptly update your Payment Method to allow for timely payment. Changes made to your Payment Method will not affect Charges that we submit to your chosen Payment Method before we could have reasonably acted on your changes. Additionally, you agree to permit us to use any updated Payment Method information provided by your issuing bank or the applicable payment network and to charge your current primary Payment Method by using the details of such Payment Method saved in our system, even if such Payment Method is declined. We further reserve the right to use your backup Payment Method to the extent one is provided. By adding a backup Payment Method, you authorize us to process any applicable Charges on your backup Payment Method if your primary Payment Method is declined.

You agree that all payments are non-cancelable for the applicable subscription or renewal term and are final and non-refundable, unless otherwise agreed to by us, required by law, or set forth in your Order Form.

We may change prices for the Services at any time, in our sole discretion. For changes to your Charges, we will provide you with not less than thirty (30) calendar days prior notice. If you seek to terminate or modify the Services affected by a rate change, then you must terminate or modify your affected Services within the notice time period. If you do not terminate or modify the affected Services within the applicable notice time period, then you shall be deemed to have automatically accepted the change to your Charges, unless your affirmative, express consent to such change is required under applicable law.

Prices specified in an Order Form may include a promotional rate, discount, sale, or special offer, which may be temporary and may expire per the terms of the offer or upon renewal. The expiration of the discount or promotional pricing may expire without additional notice to you, unless specified in an Order Form or as required by law. We reserve the right to discontinue or modify any promotion, discount, sale, or special offer in our sole discretion.

You agree that if we are unable to collect the Charges for the Services through your Payment Method, we may, to the extent not prohibited by applicable law, take any other steps we deem necessary to collect such Charges from you and that you will be responsible for all costs and expenses incurred by us in connection with such collection activity, including collection fees, court costs, and attorneys' fees. You further agree that, to the extent not prohibited by law, we may collect interest at the lesser of 1.5% per month or the highest amount permitted by law on any Charges not paid when due.

Without limiting our rights under this Agreement, if any failure to pay Charges continues for five (5) calendar days following the due date, we may terminate, suspend, or disconnect your Services immediately and without prior notice.

You agree that we may contact you via email or otherwise at any time with information relevant to your use of the Services, including billing communications, regardless of whether you have opted out of receiving marketing communications or notices.

You acknowledge and agree that unless otherwise provided in your Order Form, we are under no obligation to provide any maintenance, support services or training, other than the support needed to ensure that the Services and Software are working properly. Notwithstanding the above, if we create any updates, upgrades, new versions, improvements, or other derivative works with respect to the Services and Software, we shall provide the same to you and such works will be deemed licensed to you as part of the Services and Software.

You shall be responsible for all sales, use, excise, and value added taxes (but not including taxes based on our income) imposed by any federal, provincial, state, or local governmental entity for the Services and Software.

Each Order Form will specify your subscription and any applicable renewal term for the Services. Unless your Order Form expressly states otherwise or automatic renewal is prohibited by law, each renewal term for the Services will begin automatically at the end of the then-current subscription renewal term, as the case may be, unless either party provides written notice of termination or modification of the Services provided under such Order Form prior to the commencement of the next renewal term. In order to avoid being charged for the next renewal term, you must provide notice of termination to us prior to the beginning of the applicable renewal term.

Notwithstanding anything to the contrary herein, if you fail to comply with any provision of this Agreement, we may (i) immediately suspend your access to the Services, or (ii) terminate this Agreement, effective immediately. If we choose to suspend your Services and the failure to comply continues, we may exercise any or all of our termination rights in this Agreement.

Upon any termination of this Agreement, you must cease any further use of the Services and Software, except for any access rights granted elsewhere in this Agreement or in an Order Form, and all rights granted to you in respect of the subject matter of the termination shall revert to us. No expiration or termination of this Agreement will affect your obligation to pay all Charges that may have become due before such expiration or termination, including that we may retain any Charges previously paid by you if this Agreement is terminated, unless prohibited by law. If your Services are suspended for your failure to comply with this Agreement, you will be liable for all Charges due and owing during the period of suspension.

For two (2) calendar days following expiration or termination of this Agreement, we will provide you access to retrieve your User Content, after which time your User Content may be deleted in accordance with applicable law, this Agreement, and our regularly scheduled deletion protocols, policies, and procedures.

ThinkDiffusion, its affiliates, its licensors, and suppliers (as applicable) own and shall retain ownership of (i) the Services and Software, and any underlying or other technology and intellectual property embodied or contained in, used to provide or support, or otherwise associated or provided in connection with, the Services or Software, including all Proprietary Rights related thereto, exclusive of any Third-Party Offerings (as defined below), and (ii) all trade names, trademarks, service marks, trade dress, logos, icons, insignia, symbols, interface and other designs, domain names and corporate names, and the like (whether registered or unregistered) ("ThinkDiffusion Marks") associated or displayed with the Services or Software, together with the goodwill associated with any of the foregoing ThinkDiffusion Marks (all of the foregoing, collectively"ThinkDiffusion Property"). You may not frame or utilize framing techniques to enclose any ThinkDiffusion Marks, or other proprietary materials or information (including images, text, page layout, or form) of ours unless you follow all of the guidelines provided on our Media Kit page (https://www.thinkdiffusion.com/mediakit) or otherwise request our prior written consent. You may not use any meta tags or any other "hidden text" utilizing ThinkDiffusion Marks without our express prior written consent. No rights to use the ThinkDiffusion Marks are provided to you herein.

The Services and Software may include open-source software, including any software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative (collectively "Open-Source Components"). Your use of any Open-Source Components is subject to and governed solely by the terms and conditions of the applicable open-source license agreement(s).

We reserve all rights not expressly granted to you in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to you or any third party, any Proprietary Rights or other right, title, or interest in or to any ThinkDiffusion Property or other intellectual property provided in connection with this Agreement or the Services or Software.

Each party to this Agreement may, from time to time, disclose certain Confidential Information to the other party. "Confidential Information" means, with respect to ThinkDiffusion, the Services and Software and, with respect to either of the parties, any non-public, proprietary information that is of a nature that a reasonable person would (in all the circumstances) consider confidential, excluding information that: (i) was in the public domain at the time of the disclosing party's disclosure to the receiving party; (ii) enters the public domain subsequent to disclosure through no fault of the receiving party; (iii) the receiving party can demonstrate was in the receiving party's possession free of any obligation of confidence at the time of the disclosing party's disclosure to the receiving party; (iv) the receiving party can demonstrate was independently developed by the receiving party; (v) you or any of your Authorized Users provide as Input; or (vi) the disclosure of which is required by law, valid subpoena, or court or government order; provided, however, that in the case of legally-compelled disclosure, the receiving party provides prompt notice of such required disclosure and the receiving party shall have made a reasonable effort to obtain a protective order or other reliable assurance affording it confidential treatment and limiting its use solely for the purpose for which the law or order requires.

The receiving party shall use the same care to avoid disclosure of such Confidential Information as it uses with its own similar Confidential Information which it does not wish to disclose, but such standard of care shall not be less than a reasonable standard of care. The receiving party shall not disclose the Confidential Information, including any trade secret, confidential or proprietary information contained within the Confidential Information, to any persons other than its directors, officers, employees, contractors, agents, professional advisors, or other representatives who have a need to know the Confidential Information, and who are under an obligation of confidentiality substantially similar to the terms of this section prior to such disclosure.

The parties agree that a breach of the confidentiality obligations in this section by the receiving party would cause irreparable injury for which monetary damages would be an inadequate remedy, and, without limitation of any other rights or remedies, will entitle the disclosing party to seek equitable relief, including injunctive relief, for such breach in any court of competent jurisdiction.

You agree to not – and to not permit any Authorized Users to – post, modify, distribute, or reproduce in any way in connection with your or your Authorized Users' use of the Services or Software any copyrighted material, trademarks, or other proprietary material that may infringe, misappropriate, or otherwise violate another's Proprietary Rights without obtaining the prior written consent of the owner of the Proprietary Rights. You represent and warrant that you are either the author of all User Content to be provided under this Agreement or have obtained and hold all rights necessary to provide such User Content and receive all User Content in the form of Output, in connection with your or your Authorized Users' use of the Services or Software. ThinkDiffusion may deny access to the Services to any Authorized User who is alleged to infringe another person's Proprietary Rights and may remove any stored User Content upon our receipt of notice by the Proprietary Rights owner (e.g., a takedown request). Without limiting the foregoing, if you believe that any of your Proprietary Rights have been infringed in connection with the Services, notify us as provided in the section below under the heading "Your Comments and Concerns."

The Services or Software may interoperate, integrate, or be used in connection with third party offerings and services, including Open-Source Components (collectively "Third-Party Offerings"). We are not responsible for, and we hereby disclaim any liability for, any act or omission of any provider of Third-Party Offerings or the operation of any Third-Party Offerings, including access to, modification of, or deletion of data, regardless of whether we endorse, approve, or support any such Third-Party Offerings. We do not guarantee the interoperation, integration, or support of any Third-Party Offerings. We may, at any time, in our sole discretion, modify the Services or Software, which may result in failed interoperation, integration, or support of Third-Party Offerings. Your use of any Third-Party Offerings is governed solely by the terms of such Third-Party Offerings.

We are unable to provide clearance for commercial use of User Content as each of the Third-Party Offerings have their own commercial use policies and restrictions. If you intend to make commercial use of any User Content, you must communicate directly with the developers of the Third-Party Offerings and/or consult with an attorney to understand the applicable rules and regulations. We do not offer legal advice regarding commercial use. You agree to take full responsibility for obtaining any necessary clearances or permissions for commercial use of User Content and agree to indemnify and hold us harmless from any claims arising from such use. You acknowledge and agree that we shall not be liable for any damages, costs, or expenses resulting from either your or your Authorized Users' failure to obtain necessary clearance or permission for commercial use of User Content.

You grant us permission and the right to (i) identify you as a customer and to use your logo across our marketing materials (e.g., our websites, emails, presentations, brochures), and (ii) develop content around your experience as a ThinkDiffusion customer (e.g., a written case study or video case study). Any content created under the foregoing clause (ii) will be created in cooperation with you and used only upon your written approval. We will use any trademarks provided by you pursuant to clause (i) in accordance with any reasonable guidelines that you provide to us in writing prior to our use.

You understand that we cannot and do not guarantee or warrant that any files downloaded using the Services or Software will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to the Services and Software for reconstruction of any lost data. WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICES, ANY THIRD-PARTY OFFERINGS, OR TO YOUR DOWNLOADING OF ANY MATERIAL USING THE SERVICES OR SOFTWARE.

YOUR USE OF THE SERVICES AND SOFTWARE, THEIR CONTENT, AND ANY THIRD-PARTY OFFERINGS CONNECTED TO THE SERVICES AND SOFTWARE IS AT YOUR OWN RISK. THE SERVICES, THEIR CONTENT AND ANY THIRD-PARTY OFFERINGS ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THINKDIFFUSION NOR ANY PERSON ASSOCIATED WITH US MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER THINKDIFFUSION NOR ANYONE ASSOCIATED WITH US REPRESENTS OR WARRANTS THAT THE SERVICES AND SOFTWARE, THEIR CONTENT, ANY WEBSITES LINKED TO THE SERVICES, ANY CONTENT AVAILABLE ON OR THROUGH SUCH OTHER WEBSITES, OR ANY THIRD-PARTY OFFERINGS CONNECTED TO THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICES AND SOFTWARE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SERVICES AND SOFTWARE OR ANY THIRD-PARTY OFFERINGS CONNECTED TO THE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.

THINKDIFFUSION HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE.

THE FOREGOING DOES NOT AFFECT ANY WARRANTIES WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

IN NO EVENT WILL THINKDIFFUSION, ITS AFFILIATES OR THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICES, ANY WEBSITES LINKED TO THE SERVICES, ANY CONTENT AVAILABLE ON OR THROUGH THE SERVICES OR SUCH OTHER WEBSITES, ANY THIRD-PARTY OFFERINGS CONNECTED TO THE SERVICES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE.

THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

You agree to defend, indemnify and hold harmless ThinkDiffusion, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to your violation of this Agreement or your use of the Services and Software, including, but not limited to, your User Content, other than as expressly authorized in this Agreement or your use of any information obtained from the Services.

IN NO EVENT WILL WE OR OUR DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, OR OTHER DAMAGES ARISING FROM YOUR USE OF THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO US DURING THE SIX (6) MONTH PERIOD PRIOR TO ANY CAUSE OF ACTION ARISING. CERTAIN US STATE LAWS AND INTERNATIONAL LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

All matters relating to the Services, Software, and this Agreement, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule.

Any legal suit, action or proceeding arising out of, or related to, the Services, Software, and this Agreement shall be instituted exclusively in the courts of Delaware. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THE SERVICES, SOFTWARE, OR THIS AGREEMENT MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

No waiver by ThinkDiffusion of any term or condition set forth in this Agreement shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure by us to assert a right or provision under this Agreement shall not constitute a waiver of such right or provision.

If any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of this Agreement will continue in full force and effect.

You may not assign your rights or transfer any of your obligations under this Agreement without our prior express written consent. Any purported assignment or transfer in violation of this paragraph is null and void. We may assign our rights or transfer any or all of our obligations under this Agreement at any time, without prior notice to you, (i) in the event of a merger, acquisition, or sale of all or substantially all of our assets, or (ii) to an affiliate. This Agreement is binding upon, and inure to the benefit of, the parties and their respective permitted successors and assigns.

Nothing contained in this Agreement shall be deemed or construed as creating a joint venture or partnership between you and ThinkDiffusion. Neither party is by virtue of this Agreement authorized as an agent, employee, or legal representative of the other party. No party shall have the power to control the activities and operations of any other, and their status is, and at all times will continue to be, that of independent entities with respect to each other. No party shall have any power or authority to bind or commit any other.

This Agreement does not and is not intended to confer any enforceable rights or remedies upon any person other than ThinkDiffusion and you.

We may give notice to you by (i) electronic mail to your email address on record in your account information, (ii) written communication sent by letter delivered by a nationally recognized overnight delivery service, or (iii) first-class postage prepaid mail to your address on record in your account information. You are responsible for ensuring that your email address and mailing address on record are current. You agree that any notice sent to the then-current email or mailing address in our systems is adequate and binding notice upon you. You will provide notice to us (such notice is deemed given when received by ThinkDiffusion) by letter delivered by a nationally recognized overnight delivery service or first-class postage prepaid mail to ThinkDiffusion at the mailing address appearing in the section below under the heading "Your Comments and Concerns."

All sections of this Agreement which, by their nature should survive termination or expiration, will survive, including sections pertaining to confidential information, our Proprietary Rights, license rights granted by you to ThinkDiffusion, payment obligations, warranty disclaimers, indemnification, arbitration, and the limitation on liability.

This Agreement, our Privacy Policy and any applicable Order Form constitute the sole and entire agreement between you and ThinkDiffusion with respect to the Services and Software and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to the Services and Software.

Neither party shall be liable for any costs or damages resulting from their inability to perform any of their obligations under this Agreement due to acts of God, the elements, strikes, actions or decrees of governmental bodies or any other causes beyond the reasonable control of the affected party (a "Force Majeure Event"). A Force Majeure Event shall not constitute a breach of this Agreement. The party affected by a Force Majeure Event shall immediately give notice to the other party. Upon such notice, all obligations of the affected party under this Agreement which are reasonably related to the Force Majeure Event shall be immediately suspended, and the affected party shall do everything reasonably possible to resume performance as soon as practicable.

The Services and Software are operated and provided by Think Diffusion Inc., 2700 Post Oak Blvd, Suite 2100, Houston, TX 77056.

All notices of copyright infringement claims should be sent to admin@thinkdiffusion.com.

All other feedback, comments, requests for technical support and other communications relating to the Services should be directed to admin@thinkdiffusion.com.