Endgame Master SaaS Service Agreement

Endgame Services

1. Endgame Services License. Endgame hereby grants Customer a limited, non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicensable license to access and use the Services, solely for Customer’s internal business purposes during the Term and in accordance with the product and user documentation, training materials, specifications, and other similar materials made available to Customer relating to the Services (collectively, the “Documentation”). All rights not expressly granted to Customer are reserved by Endgame. 
2. Documentation License. Endgame hereby grants Customer a non-exclusive, non-sublicensable, non-transferable license to use and make reasonable numbers of copies of the Documentation during the Term solely for Customer’s internal business purposes in connection with Customer’s use of the Services.
3. License Restrictions. The Services are provided solely for Customer’s internal business purposes. Except as expressly permitted in the Agreement, Customer will not, and will not permit any third party to: (i) modify, copy, or create derivative works of the Services; (ii) sublicense, rent, lease, transfer, permit use of, license, resell, or otherwise distribute the Services or make the Services available to any third party; (iii) decompile, disassemble, decode, translate, or reverse engineer the Services or otherwise attempt to learn the source code, structure, algorithms, or internal ideas underlying the Services; (iv) access the Services in order to build a competitive product or service; (v) disclose to any third party any performance information or analysis relating to the Services; or (vi) use the Services in a way that violates any applicable laws, rules, or regulations.

Use of the Services

1. Accounts. Endgame may require that Customer create an account in order to use the Services. In registering an account, Customer agrees to (i) provide true, accurate, current and complete information as prompted by the registration form (the “Registration Data”); and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. Except as otherwise expressly permitted in the Agreement, Customer may not share or permit others to use its login credentials. Customer is responsible for maintaining the security of its login credentials and promptly notify Endgame if Customer discovers or suspects that someone has accessed its account without permission. 
2. Authorized Users. Subject to the terms and conditions of the Agreement, Customer may permit its employees, representatives, and third-party contractors (collectively, “Authorized Users”) to access or use the Services using Customer’s account, provided that Customer will remain responsible for each Authorized User’s compliance with the Agreement. Customer is liable for the acts and omissions of Authorized Users in connection with their access to and use of the Services using Customer’s account credentials. 
3. Suspension of Services. Endgame may suspend Customer’s or any Authorized User’s right to access or use any portion or all of the Services immediately upon notice to Customer if Customer’s or an Authorized User’s use of the Services: (i) poses a security risk to the Services or any third party; (ii) violates the Acceptable Use Policy; or (iii) could adversely impact Endgame’s systems, the Services or the systems of any other Endgame customers. Customer remains responsible for all fees incurred during or prior to the period of suspension and will not be entitled to any refund or credit for any period of suspension. 

GenAI Features.

Data

1. Definitions.
   1. “Customer Data” means all information, data, and other content that is submitted, posted, or otherwise transmitted by or on behalf of Customer or any Authorized User through the Services, including Inputs and Outputs. For the avoidance of doubt, Customer Data excludes Endgame Technology.
   2. “Usage Data” means data and information related to Customer’s and its Authorized Users’ use of the Services and the performance, availability, integrity, and security of the Services, including traffic, volumetrics, clickthrough or clickstream data, feature usage, and errors.
   3. “Personal Information” means information that constitutes “personal information,” “personal data” or similar term as defined by applicable laws.
2. Ownership of Customer Data. Except for Endgame Technology (as defined below), as between Endgame and Customer, Customer retains all right, title and interest in and to all Customer Data, including all Intellectual Property Rights embodied therein. By submitting or otherwise making available Customer Data to Endgame, Customer represents and warrants that it has all necessary licenses, rights, consents, and permissions to use, and to authorize Endgame to process, analyze, and use the Customer Data as contemplated by this Agreement, including Personal Information. 
3. License to Customer Data. Customer hereby grants to Endgame during the Term a non-exclusive, worldwide, royalty-free, sublicensable (through multiple tiers), irrevocable right and license to access, use, store, reproduce, display, modify, adapt, publish, translate, create derivative works of, distribute, publicly perform, publicly display, edit, create derivative works from, and otherwise process the Customer Data to the extent necessary for hosting, operating, improving, creating, testing, and otherwise providing the Services to Customer.
4. Data from Third-Party Services. By connecting Customer’s account on the Services to one or more accounts on third-party services (each, a “Third-Party Service Account”), Customer hereby agrees that Endgame may access Customer’s Third-Party Service Account, as is permitted under the applicable terms and conditions that govern such Third-Party Service Account. By granting Endgame access to any Third-Party Service Accounts, Customer agrees that Endgame may access, make available and store (if applicable) any information, data, text, software, music, sound, photographs, graphics, video, messages, tags and other materials accessible through the Services that Customer has provided to and stored in Customer’s Third-Party Service Account (collectively, “Third-Party Service Content”) so that it is available on and through the Services via Customer’s account. Unless otherwise specified in the Agreement, all Third-Party Service Content shall be considered to be Customer Data. Depending on the Third-Party Service Accounts Customer chooses and subject to the privacy settings that Customer have set in such Third-Party Service Accounts, Personal Information that Customer posts to Third-Party Service Accounts may be available on and through Customer’s account on the Services. If a Third-Party Service Account or associated service becomes unavailable, or if Endgame’s access to such Third-Party Service Account is terminated by the applicable third-party service provider, then Third-Party Service Content will no longer be available on and through the Services. 
5. Usage Data. Customer agrees that Endgame may collect Usage Data pertaining to the performance of the Services and measures of the operation of the Services. As between Endgame and Customer, Endgame owns all right, title, and interest, including all associated Intellectual Property Rights, in and to the Usage Data. Endgame may use Usage Data as necessary to provide, maintain, develop, and improve the Services and other Endgame technology. Without limiting the foregoing, Endgame may monitor and inspect the traffic on the Services, including any related logs, to provide and maintain the Services. For clarity, nothing in this Section 4.5 limits Endgame’s confidentiality obligations set forth in Section 11, and Endgame’s use of Usage Data shall not identify Customer or disclose any Customer Data

   
   

Intellectual Property

1. Definition. “Intellectual Property Rights” means, collectively, all patents, copyrights, moral rights, trademarks, trade names, service marks, trade dress, trade secrets, and any other form of intellectual property rights now or hereafter recognized in any jurisdiction, whether or not registered, and includes applications and registrations for any of the foregoing.
2. Ownership. Except with respect to Customer Data, Endgame and its licensors retain and exclusively own all rights, title and interest in and to the Usage Data, the Services, and all content incorporated therein (including Usage Data, data, databases, libraries, development tools, designs, software, artwork, photos, videos, music, sounds, text, logos, trademarks, information and other materials posted, provided or otherwise made available through the Services), including all Intellectual Property Rights embodied therein, and any authorized or unauthorized enhancements, updates, upgrades, improvements, translations, adaptations, or other modifications to or reproductions or derivative works thereof (collectively, the “Endgame Technology”).
3. Feedback. Customer may voluntarily post, submit, or otherwise communicate to Endgame any questions, comments, suggestions, ideas, original or creative materials, or other information about Endgame or the Services (collectively, “Feedback”). Endgame may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to Customer, including to copy or publish the Feedback. Endgame will exclusively own all improvements to existing Services or new Endgame products or services based on any Feedback. Endgame may treat Feedback as nonconfidential. 

   
   

Subscription Services; Payment

1. Service Subscription Fees. Customer will be responsible for payment of the applicable fee for any Services set forth in an Order Form (each, a “Service Subscription Fee”) as of the start date set forth in such Order Form (each, a “Service Commencement Date”). Except as set forth in this Agreement, all fees for the Services are non-refundable. All Service Subscription Fees are due and payable within thirty (30) days of Customer’s receipt of an invoice therefor. Customer is responsible for maintaining complete and accurate billing and contact information within the Services.
2. Taxes. Service Subscription Fees do not include any taxes that may be due in connection with the Services. If Endgame determines it has a legal obligation to collect taxes from Customer in connection with the Agreement, Endgame may collect such taxes in addition to the Service Subscription Fee. If any Services, or payments for any Services, under the Agreement are subject to any tax in any jurisdiction and Customer has not remitted the applicable tax to Endgame, Customer will be responsible for the payment of such tax and any related penalties or interest to the relevant tax authority. 

   
   

Third-Party Services.

Indemnification.

1. Indemnification by Endgame. Endgame will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Service infringes such third party’s copyright or patent right or misappropriates such third party’s trade secret right (a “Claim Against Customer”), and will indemnify and hold Customer harmless from any damages, attorney fees and costs finally awarded against the third party claimant as a result of a Claim Against Customer or for any settlement of a Claim Against Customer that is approved in writing signed by an authorized officer of Endgame. If Endgame receives information about an infringement or misappropriation claim related to a Service, Endgame will in its discretion and at no cost to Customer (a) modify the Services so that they are no longer claimed to infringe or misappropriate, (b) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or, if Endgame, in its sole discretion, determines that options (a) and (b) are not commercially reasonable (c) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent that a Claim Against Customer arises from (i) the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by Endgame or reasonably contemplated by the Documentation, if the Services or use thereof would not infringe without such combination, (ii) modifications to the Services not made by Endgame or (iii) Customer’s breach of this Agreement, the Documentation, or applicable Order Forms.
2. Indemnification by Customer. Customer will defend Endgame against any claim, demand, suit or proceeding made or brought against Endgame by a third party alleging or arising from (i) Customer’s use of the Services in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form or (ii) any Customer Data or Customer’s use of Customer Data with the Services, and will indemnify and hold Endgame harmless from any damages, attorney fees and costs finally awarded against the third party claimant as a result of a Claim Against Endgame or for any settlement of a Claim Against Endgame that is approved in writing signed by an authorized officer of Customer. The above defense and indemnification obligations do not apply if a Claim Against Endgame arises from Endgame’s breach of this Agreement, the Documentation, or applicable Order Forms.
3. Procedures.  Each party’s obligations under Sections 8.1 (Indemnification by Endgame) and 8.2 (Indemnification by Customer) are conditioned on the indemnified party (i) providing the indemnifying party with prompt written notice of any claim (provided that the indemnified party’s failure to provide prompt written notice will only relieve the indemnifying party of its indemnification obligations hereunder to the extent such failure materially limits or prejudices the indemnifying party’s ability to defend or settle such claim), (ii) granting the indemnifying party the sole control of the defense and settlement of the claim and (iii) providing reasonable information and assistance to the indemnifying party in the defense or settlement of the claim at the indemnifying party’s expense. The indemnified party may participate in a claim with its own counsel at its own expense. 

   
   

Warranties; Disclaimers

1. Endgame Warranties. Endgame warrants that during an applicable subscription term (i) Endgame will not materially decrease the overall security of the Services and (ii) the Services will substantially perform in all material respects in accordance with the applicable Documentation. Endgame will use reasonable efforts to correct a verified breach of these warranties reported by Customer. If Endgame fails to correct a verified breach of warranty within 30 days after Customer's report, then either party may terminate the Order as relates to the non-conforming Service or Professional Services, in which case Endgame will refund to Customer any pre-paid, unused fees for the terminated portion of the applicable Services subscription term. To receive these remedies, Customer must report a breach of warranty in reasonable detail within 30 days after discovering the issue in the Services. The foregoing remedies are Customer’s exclusive remedies and Endgame’s sole liability for breach of this Section 9.1.
2. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.

   
   

Limitation of Liability

1. Limitation of Liability. EXCEPT FOR (I) A PARTY’S OBLIGATIONS UNDER SECTION 9 (INDEMNIFICATION), (II) EITHER PARTY’S BREACH OF SECTION 11 (CONFIDENTIALITY) OR (III) EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EACH PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID OR DUE BY CUSTOMER HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION, OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

   
   

Confidentiality.

Term; Termination

1. The “Term” of this Agreement commences upon the Effective Date and continues until terminated in accordance with this Section 12.  The term of each subscription will be for the initial term specified in the Order Form and, unless either party gives the other written notice (email acceptable) of non-renewal at least 30 days before the end of the relevant subscription term, will continue for consecutive one-year renewal terms.
2. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period or (ii) if the other party seeks protection under insolvency, bankruptcy, receivership, trust deed, liquidation or assignment for the benefit of creditors, or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 120 days.
3. Upon expiration, termination, or cancellation of the Agreement for any reason, (i) Customer must cease all use of the Services and uninstall and delete all copies of all apps or software included with the Services in its possession; (ii) all rights and obligations of both parties to these Terms, including all licenses granted under these Terms, will immediately terminate except for rights granted to Endgame under Section 5; and, (iii) the receiving Party will return to the disclosing Party or destroy, at the disclosing Party’s election, all Confidential Information in the receiving Party’s possession or control (provided, that the receiving Party may retain electronically-archived copies of Confidential Information, subject to the terms and conditions of the Agreement). The provisions of the Agreement that are by their nature intended to survive termination or expiration of the Agreement will so survive. Following termination, Customer will have no further access to any Customer Data via the Services.

   
   

Export Control.

Miscellaneous.

1. These Terms are subject to change by Endgame in its sole discretion at any time. When changes are made, Endgame will make a copy of the updated Agreement available at https://www.endgame.io/terms and update the “Last Updated” date at the top of these Terms. If Endgame makes material changes to the terms, Endgame will notify Customer. If Customer does not agree to the updated Terms, Customer must stop using all Services. Otherwise, continued use of any of the Services constitutes acceptance of the updated Terms. 
2. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California, except to the extent preempted by U.S. Federal Law, without regard to conflict of law rules or principles (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. The state and federal courts located in the Central District of the State of California will have exclusive jurisdiction over all disputes arising under this Agreement, and Customer and Endgame waive any objection to venue in any such courts. 
3. The following terms apply in relation to Customer’s access to and use of the Services (the “Supplemental Terms”): (i) Acceptable Use Policy; and (ii) Data Processing Addendum
4. Neither Party may assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations hereunder, without obtaining the prior written consent of the other Party; provided, however, either Party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. time. This Agreement will be binding upon the parties and their respective successors and permitted assigns.
5. The Parties are independent contractors, and no employment, agency, or joint venture is created hereunder.
6. Customer may not use, copy, imitate, or otherwise use, in whole or in part, Endgame’s name, trademarks, or logos, unless agreed to in writing by Endgame.
7. Neither Party’s failure to exercise or enforce any right or provision of these Terms will operate as a waiver of such right or provision. This Agreement reflects the entire agreement between the parties relating to the subject matter hereof and supersedes all prior agreements, representations, statements, and understandings of the Parties. Except as otherwise provided herein, these Terms are intended solely for the benefit of the Parties and are not intended to confer third-party beneficiary rights upon any other person or entity. Communications and transactions between the Parties may be conducted electronically.
8. The section titles in these Terms are for convenience only and have no legal or contractual effect. Lists of examples following “including” or “e.g.” or similar words are not exhaustive (that is, they are interpreted to include “without limitation”). All monetary amounts are expressed in U.S. dollars. URLs are understood to also refer to successor URLs, URLs for localized content, and information or resources linked from within the websites at the specified URLs. The word “or” will be deemed an inclusive “or.”
9. All notices and demands pursuant to the Agreement must be in writing.  Notices to Customer shall be effective upon receipt thereof and may be delivered via the Service to the Customer’s designated administrative account, or any email or mailing address specified on an Order Form.  Notice to Endgame shall be provided by a reputable overnight courier with required signed receipt, or via certified mail, and shall be deemed effective solely upon receipt if delivered to: Endgame Labs, Inc., 548 Market Street PMB 29172, San Francisco, CA 94104.
10. If any portion of these Terms is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (i) the unenforceable or unlawful provision(s) will be severed from these Terms; (ii) severance of the unenforceable or unlawful provision(s) will have no impact whatsoever on the remainder of these Terms; and (iii) the unenforceable or unlawful provision(s) may be revised to the extent required to render the Terms enforceable or valid, and the rights and responsibilities of the Parties will be interpreted and enforced accordingly, so as to preserve the Terms and the intent of the Terms to the fullest possible extent.