Terms of Use

PLEASE READ THESE TERMS OF USE (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY DIAGONAL SOFTWARE CORP. (“DIAGONAL”). BY USING THE SERVICES OR EXECUTING ONE OR MORE ORDER FORMS WITH DIAGONAL WHICH REFERENCE THESE TERMS, WHICH MAY INCLUDE ANY ONLINE ORDER FORM WHICH YOU SUBMIT VIA DIAGONAL’S STANDARD ONLINE PROCESS AND WHICH IS ACCEPTED BY DIAGONAL, (EACH, AN “ORDER FORM”), YOU (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS AND DIAGONAL’S PRIVACY POLICY, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ENTITY, THEN YOU REPRESENT AND WARRANT THAT YOU ARE AUTHORIZED TO BIND SUCH ENTITY TO THE TERMS OF THIS AGREEMENT. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.

1. Order Forms; Access to the Service. Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement. For each Order Form, subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form), Diagonal grants Customer a nonexclusive, limited, personal, nonsublicensable, nontransferable right and license to internally access and use the Diagonal product(s) and/or service(s) specified in such Order Form (collectively, the “Service,” or “Services”), including any output received by Customer from the Services based on the Customer Data (“Output”), during the applicable Order Form Term (as defined below) for the internal business purposes of Customer, only as provided herein. Customer (i) agrees to use the Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), (ii) shall not use the Service in a manner that violates any third party intellectual property, contractual or other proprietary rights, and (iii) accepts and agrees to be bound by Diagonal’s Privacy Policy, which is available at https://godiagonal.com/legal/privacy and hereby incorporated into this Agreement by reference.
2. Customer Systems. Customer agrees and acknowledges that its use of the Services may require Diagonal to access Customer Data (as defined in Section 7 below). Accordingly, Customer covenants, represents, and warrants that (i) it will provide Diagonal with rights, licenses and permissions necessary for Diagonal to receive and use the Customer Data, (ii) it will provide Diagonal with access to accounts, databases, networks, software, and storage devices needed to connect to, access, migrate to Diagonal’s platform, or otherwise use such Customer Data, including access to third party applications or services used by Customer, and (iii) it will obtain any necessary authorizations, consents, and permissions from any applicable third parties required for Diagonal to connect to, access, migrate Customer Data from, or otherwise use such third party applications or services on Customer’s behalf (items (i)-(iii) collectively the “Access Rights”). Customer further covenants, represents, and warrants that such access, migration, or other use of Customer Data does not and will not violate any third party terms of service, contract, or applicable law. Diagonal will not be responsible for any failure to perform the Services arising out of any failure of any such third party applications or Customer’s inability or failure to provide Access Rights. Diagonal makes no representations or warranties regarding the completeness, accuracy, or integrity of any data following migration, and Customer shall verify the accuracy of all migrated data.
3. Support and Service Updates. Diagonal agrees to provide commercially reasonable support and maintenance in connection with the Services. From time to time, Diagonal may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement. Customer understands that Diagonal may make improvements and modifications to the Services at any time in its sole discretion.
4. Fees; Payment. Customer shall pay Diagonal fees as set forth in each Order Form (“Fees”). Unless otherwise specified in an Order Form, all Fees shall be invoiced monthly in advance and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Customer shall be responsible for all taxes associated with Service (excluding taxes based on Diagonal’s net income). All Fees paid are non-refundable and are not subject to set-off. If Customer exceeds any user or usage limitations set forth on an Order Form, then (i) Diagonal shall invoice Customer for such additional users or usage at the overage rates set forth on the Order Form (or if no overage rates are set forth on the Order Form, at Diagonal’s then-current standard overage rates for such usage), in each case on a pro-rata basis from the first date of such excess usage through the end of the Order Form Initial Term or then-current Order Form Renewal Term (as applicable), and (ii) if such Order Form Term renews (in accordance with the section entitled “Term; Termination”, below), such renewal shall include the additional fees for such excess users and usage. Customer hereby authorizes Diagonal to charge Customer's designated payment method (including credit card, ACH, or other electronic payment method accepted by Diagonal) for all Fees and other amounts owing under this Agreement. Customer shall keep a valid payment method on file with Diagonal at all times during the Term. If any charge to Customer's payment method is rejected, returned, or otherwise fails, Customer shall provide a valid replacement payment method within five (5) business days of notice from Diagonal.
5. Ownership of the Diagonal Platform. As between the parties, Diagonal retains all right, title, and interest in and to the Services, including Diagonal’s proprietary platform, any improvements, enhancements and updates thereto, Platform Data (as defined below), and any combinations of Diagonal’s platform and technology with Customer Data (as defined below) including but not limited to any Outputs. Customer may (but is not obligated to) provide suggestions, comments or other feedback to Diagonal with respect to the Service (“Feedback”) and Customer agrees that Diagonal will have a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.
6. Restrictions. Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service for the benefit of a third party other than businesses or organizations that are members of, or are served by, Customer in the ordinary course of Customer's business; (v) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (vi) use the Service to build an application or product that is competitive with any Diagonal product or service; (vii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; (viii) bypass any measures Diagonal may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service).
7. Customer Data. For purposes of this Agreement, “Customer Data” shall mean any data, information, request, input, prompt or other material provided, uploaded, or submitted by Customer to the Service. Customer owns the Customer Data, including all intellectual property rights therein. Customer represents and warrants that it has all rights necessary to provide the Customer Data to Diagonal as contemplated hereunder, in each case without any infringement, violation or misappropriation of any third party rights (including, without limitation, intellectual property rights and rights of privacy). Customer hereby grants to Diagonal and its affiliates, successors, and assigns a non-exclusive, non-transferable, worldwide right and license to exercise, practice, make, use, reproduce, modify, create derivative works of and otherwise exploit the Customer Data, including all intellectual property rights of any sort related thereto, in connection with (i) providing the Services to Customer, (ii) maintaining and improving the Services, including by designing, developing and producing statistics, metrics and other analyses that are based on or derived from the Service, which are developed in the aggregate with other data or results or in a manner that does not disclose Customer’s identity or Customer Data, and (iii) the development and commercialization of models, algorithms, tools and related artificial intelligence products, which development activities may include, without limitation, training artificial intelligence models.
8. Platform Data. In the course of providing the Service, Diagonal may collect statistical data and performance information, analytics, meta-data or similar information, generated through instrumentation and logging systems, regarding the operation of the Service, including Customer’s use of the Service (the “Platform Data”). Nothing in this Agreement shall restrict Diagonal’s right to collect Platform Data or to use it for any internal business purpose, provided however, that (i) Platform Data will not include any Customer Data, and (ii) Diagonal will not disclose Platform Data to any third party in a manner that allows such third party to identify Customer.
9. Personal Data. If Customer uses the Services to process personal data, Customer agrees to (i) provide legally adequate privacy notices and obtain necessary consents for the processing of personal data by the Services, (ii) process personal data in accordance with applicable law, and (iii) if processing “personal data” or “Personal Information” as defined under applicable data protection laws, execute Diagonal’s Data Processing Addendum.
10. Data Security. Diagonal shall use commercially reasonable efforts to maintain the security and integrity of the Service and the Customer Data. Diagonal is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Service unless such access is due to Diagonal’s gross negligence or willful misconduct.
11. Output. Customer agrees and acknowledges that (i) certain Output may be generated by the Services through the use of artificial intelligence, (ii) artificial intelligence and machine learning are rapidly evolving fields of study, and use of the Service may in some situations result in incorrect or inaccurate Output; (iii) Customer should not rely on Output from the Services as a sole source of truth or factual information, or as a substitute for professional advice, (iv) Customer must verify the accuracy and appropriateness of any Output before relying on any such Output; (v) relying upon any Output without first verifying accuracy with a qualified human could cause harm, including but not limited to legal and financial harm; and (vi) due to the nature of the Services and artificial intelligence generally, the Output may not be unique and Customer has no rights to materials that are generated from the Service for other users, regardless of any level of similarity. Diagonal cannot control and has no duty to take any action regarding how Customer may interpret, rely on or use any Output or what actions Customer may take as a result of having been exposed to Output, and Customer hereby releases Diagonal from all liability for Customer having acquired or not acquired Output through the Service.
12. Confidentiality. “Confidential Information” means all information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that is designated in writing or identified as confidential at the time of disclosure or that should be reasonably known by the Receiving Party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure. The Receiving Party will: (i) not use the Disclosing Party’s Confidential Information for any purpose outside of this Agreement; (ii) not disclose such Confidential Information to any person or entity, other than its employees, consultants, agents and professional advisers (“Representatives”) who have a “need to know” for the Receiving Party to exercise its rights or perform its obligations hereunder, provided that such employees, consultants and agents are bound by agreements or, in the case of professional advisers, ethical duties respecting such Confidential Information in accordance with the terms of this Section 12; and (iii) use reasonable measures to protect the confidentiality of such Confidential Information. If the Receiving Party is required by applicable law or court order to make any disclosure of such Confidential Information, it will first give written notice of such requirement to the Disclosing Party, and, to the extent within its control, permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in its Confidential Information, and provide full cooperation to the Disclosing Party in seeking to obtain such protection. Further, this Section 12 will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it without restriction prior to receipt; (ii) is or has become public knowledge or publicly available through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party without restriction from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. Receiving Party shall be liable for any breach of its obligations by any of its Representatives.
13. Term; Termination. This Agreement shall commence upon the date of the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms. For each Order Form, unless otherwise specified therein, the “Order Form Term” shall begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, (x) shall continue for the initial term specified on such Order Form (the “Order Form Initial Term”), and (y) following the Order Form Initial Term, shall automatically renew for additional successive periods of equal duration to the Order Form Initial Term (each, a “Order Form Renewal Term”) unless either party notifies the other party of such party’s intention not to renew no later than thirty (30) days prior to the expiration of the Order Form Initial Term or then-current Order Form Renewal Term, as applicable. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
14. Indemnification. Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim that (i) the Customer Data, Customer’s failure to obtain Access Rights or provide them to Diagonal, or Customer’s use of any Output (in the case of Customer as Indemnitor), or (ii) the Service (in the case of Diagonal as Indemnitor), infringes, misappropriates or otherwise violates the rights of any third party. Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (x) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (y) the option to assume sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (z) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense). The foregoing obligations of Diagonal do not apply with respect to the Service or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not created or provided by Diagonal (including without limitation any Customer Data), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by Diagonal, (iv) combined with other products, processes or materials not provided by Diagonal (where the alleged Losses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, (vi) Customer’s failure to obtain Access Rights or provide them to Diagonal, or (vii) Customer’s use of the Service is not strictly in accordance herewith.
15. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE (INCLUDING OUTPUT) IS PROVIDED “AS IS” AND “AS AVAILABLE” AND ARE WITHOUT, AND DIAGONAL HEREBY DISCLAIMS, ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING.
16. Limitation of Liability. EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS OR EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO DIAGONAL HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER. IN NO EVENT SHALL DIAGONAL BE LIABLE FOR (I) ANY UNAUTHORIZED ACCESS, DATA LOSS, OR OTHER DAMAGES RESULTING FROM CUSTOMER’S FAILURE TO OBTAIN ACCESS RIGHTS OR PROVIDE THEM TO DIAGONAL OR (II) ANY DATA LOSS, CORRUPTION, OR INACCURACY ARISING FROM OR RELATED TO DIAGONAL’S MIGRATION OF CUSTOMER DATA TO DIAGONAL’S PLATFORM AT CUSTOMER’S DIRECTION.
17. Miscellaneous. This Agreement (including all Order Forms) represents the entire agreement between Customer and Diagonal with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Diagonal with respect thereto. In the event of any conflict between these Terms and an Order Form, the Order Form shall control. The Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in Delaware. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, any provision of this Agreement may be amended or waived only by a writing executed by both parties. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that either party may assign all of its rights and obligations hereunder without such consent to an affiliate or to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which, taken together, shall constitute one and the same instrument. Execution and delivery of this Agreement by electronic signature (including by PDF or any electronic signature platform complying with applicable law) shall be equally valid and effective as execution by original signature.