DYSCERNAI, INC. MASTER SERVICES AGREEMENT

This DyscernAI Master Services Agreement (the "Agreement") is made and entered into between DyscernAI, Inc., a Delaware corporation with offices located at 766 Partridge Ave, Menlo Park, CA 94025 ("DyscernAI" or "Company"), and the entity agreeing to these terms ("Customer"). The Agreement consists of Part A (General Terms), Part B (Specific Terms for DyscernAI Services), Part C (Definitions), any addenda (if applicable), and each Order Form or Statement of Work (SOW), including any amendments to any of the foregoing. This Agreement is effective as of the date of the last signature appearing on Customer’s initial Order Form or SOW (the "Effective Date").

PART A: GENERAL TERMS

1. Services

1.1 Provision of Services. DyscernAI will provide the Service and any Professional Services specified in an Order Form or SOW in accordance with this Agreement, and Customer and its Authorized Users may use the Service and related deliverables as described in Part B (Specific Terms for DyscernAI Services).

2. Customer Obligations

2.1 Consents. Customer is responsible for obtaining any consents and providing notices required to permit (a) Customer’s use and receipt of the Service and Professional Services, and (b) DyscernAI’s accessing, storing, and processing of data provided by Customer (including Customer Data) under this Agreement.
2.2 Compliance. Customer will (a) ensure that its and its Authorized Users’ use of the Service complies with this Agreement, (b) use commercially reasonable efforts to prevent and terminate unauthorized access or use of the Service, and (c) promptly notify DyscernAI of any unauthorized use or access to the Service of which Customer becomes aware.
2.3 Use Restrictions. In addition to restrictions specified in Part B, Customer will not, and will not allow Authorized Users to: (a) access or use the Service for High Risk Activities (as defined in Part C); (b) use the Service in a manner intended to avoid incurring Fees; (c) use the Service for materials or activities subject to the International Traffic in Arms Regulations (ITAR) or in breach of Export Control Laws; (d) transmit or store health information subject to U.S. HIPAA regulations without an executed Business Associate Agreement (BAA); (e) share log-on credentials with unauthorized parties; or (f) conduct benchmarking tests or comparative analyses of the Service for publication or disclosure to third parties without DyscernAI’s prior written consent.

3. Payment Terms

3.1 Payment. DyscernAI will invoice Customer for Fees as set forth in applicable Order Forms or SOWs. Customer will pay invoiced amounts within thirty (30) days of receipt of invoice (the “Payment Due Date”). Fees are non-refundable unless otherwise provided in this Agreement or required by law. Payments are due in the currency specified in the invoice.
3.2 Usage and Invoicing. DyscernAI’s measurement tools will determine Customer’s usage of the Service. Invoices will include sufficient detail to validate purchased services and Fees. If Customer exceeds authorized usage (e.g., number of Authorized Users or scope), Customer or DyscernAI will notify the other Party promptly, and the Parties will discuss in good faith additional Fees due, to be memorialized in a new Order Form.
3.3 Additional Usage. Customer may purchase additional usage or services during a Subscription Term via an additional Order Form, with pro-rated terms ending on the last day of the applicable Subscription Term. Usage cannot be decreased during a Subscription Term.
3.4 Taxes. Fees are exclusive of taxes. Customer will pay invoiced taxes unless a valid exemption certificate is provided. Customer may withhold taxes if a valid receipt evidencing withholding is provided.
3.5 Invoice Disputes. Customer must submit invoice disputes to billing@dyscernai.com before the Payment Due Date. If Fees were incorrectly invoiced, DyscernAI will issue a credit for the agreed amount.
3.6 Overdue Payments. If payment is overdue, DyscernAI may (a) charge interest at 1.0% per month (or the highest rate permitted by law, if lower) from the Payment Due Date until paid, and (b) suspend the Service if payment is overdue by more than fifteen (15) days after notice. Customer will reimburse DyscernAI for reasonable collection expenses (including attorneys’ fees) except for billing inaccuracies.
3.7 Purchase Orders. If Customer requires a purchase order number on invoices, it must be provided in the Order Form. If not provided, DyscernAI will invoice without it, and Customer will pay accordingly. Purchase order terms are void.

4. Intellectual Property

4.1 Intellectual Property Rights. Except as expressly granted in this Agreement, neither Party receives rights to the other’s content or intellectual property. Customer retains all rights in Customer Data, and DyscernAI retains all rights in DyscernAI IP and Competitive Intelligence Data.
4.2 Feedback. Customer may provide Feedback about the Service. DyscernAI may use Feedback without restriction or obligation to Customer, and Customer irrevocably assigns all rights in Feedback to DyscernAI.

5. Confidentiality

5.1 Use and Disclosure. The receiving Party will use the disclosing Party’s Confidential Information only to exercise rights or fulfill obligations under this Agreement and will use reasonable care to protect against disclosure. Disclosure is permitted to Representatives with a need to know, bound by equivalent confidentiality obligations, or with the disclosing Party’s written consent.
5.2 Legal Process. If the receiving Party receives a legal request (e.g., subpoena) for the disclosing Party’s Confidential Information, it will: (a) promptly notify the disclosing Party unless legally prohibited; (b) attempt to redirect the third party to request it directly from the disclosing Party; (c) comply with reasonable requests to oppose disclosure; and (d) use commercially reasonable efforts to limit or object to overbroad requests. The receiving Party may provide basic contact information to facilitate redirection.
5.3 Survival. Confidentiality obligations survive termination or expiration of this Agreement. Upon termination or request, the receiving Party will return or destroy Confidential Information, except for legally required or backup copies, which remain subject to these obligations.

6. Representations and Warranties

6.1 Mutual Warranties. Each Party represents and warrants it has full power and authority to enter into this Agreement and will comply with applicable laws in its performance or use of the Service.
6.2 Limited Service Warranty. DyscernAI warrants that during the Subscription Term, the Service will conform in all material respects to the specifications in the Documentation or Order Form description. If Customer notifies DyscernAI of a breach, DyscernAI will use reasonable efforts to correct it at no cost. If uncorrected within a reasonable time, Customer may terminate the affected Service and receive a pro rata refund of prepaid, unused Fees. This is Customer’s sole remedy. DyscernAI is not responsible for errors due to misuse or third-party issues.
6.3 Limited Professional Services Warranty. DyscernAI warrants Professional Services will be performed with skill and in a workmanlike manner. As Customer’s sole remedy, DyscernAI will re-perform or refund fees for non-conforming services if notified within ninety (90) days of completion.
6.4 Customer Warranty. Customer warrants it owns or has rights to use Customer Data and that such use under this Agreement will not violate law or third-party agreements.
6.5 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED, DYSCERNAI PROVIDES THE SERVICE, DYSCERNAI IP, AND COMPETITIVE INTELLIGENCE DATA “AS IS” AND DISCLAIMS ALL WARRANTIES, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ERROR-FREE OPERATION.

7. Indemnification

7.1 DyscernAI Obligations. DyscernAI will defend and indemnify Customer and its affiliates against liabilities from third-party claims alleging that DyscernAI IP, used as permitted, infringes intellectual property rights.
7.2 Customer Obligations. Customer will defend and indemnify DyscernAI and its affiliates against liabilities from third-party claims arising from (a) infringement related to Customer Data, or (b) Customer’s or Authorized Users’ negligence, willful misconduct, or use of the Service in breach of this Agreement or law.
7.3 Conditions. Indemnification is conditioned on: (a) prompt written notice of the claim (without prejudice to defense); and (b) tendering sole control of defense to the indemnifying Party, with the indemnified Party able to appoint non-controlling counsel at its expense and requiring consent for settlements involving liability or payment.
7.4 Remedies for IP Claims. If DyscernAI believes the Service infringes third-party rights, it may (a) procure usage rights, (b) modify the Service without material reduction in functionality, or (c) replace it with a non-infringing alternative. If these are not commercially reasonable, DyscernAI may suspend or terminate the Service with a pro rata refund. This is the sole remedy for IP claims.
7.5 Exclusions. Indemnification does not apply if the claim arises from the indemnified Party’s breach or unauthorized combination of materials with non-provided items, unless required by this Agreement.

8. Liability

8.1 Limited Liabilities. Neither Party is liable for indirect, consequential, special, incidental, or punitive damages, or lost profits, revenues, or goodwill, regardless of foreseeability. Each Party’s total liability is limited to Fees paid by Customer in the twelve (12) months preceding the event giving rise to liability.
8.2 Unlimited Liabilities. Limitations do not apply to: (a) death, personal injury, or property damage from negligence; (b) fraud; (c) indemnification obligations; (d) IP breaches; (e) payment obligations; or (f) non-excludable matters under law.

9. Term and Termination

9.1 Agreement Term. This Agreement is effective from the Effective Date until terminated (the “Term”).
9.2 Termination for Convenience. Subject to financial commitments in an Order Form or SOW, Customer may terminate this Agreement or an Order Form for convenience with thirty (30) days’ prior written notice to DyscernAI.
9.3 Termination for Breach. Either Party may terminate an Order Form or this Agreement if the other Party materially breaches and fails to cure within thirty (30) days of notice, ceases operations, or becomes subject to insolvency proceedings not dismissed within ninety (90) days. DyscernAI may also terminate for non-payment (after fifteen (15) days’ notice), security threats, or breaches of key sections (e.g., use restrictions, confidentiality).
9.4 Effects of Termination. Termination of this Agreement terminates all Order Forms and SOWs. Upon termination or expiration of an Order Form or SOW, rights and access cease, and DyscernAI will issue a final invoice for outstanding obligations. Termination of one Order Form does not affect others.
9.5 Survival. Sections covering payment, IP, confidentiality, disclaimers, indemnification, liability, termination effects, and miscellaneous provisions survive termination or expiration.
9.6 Termination of Previous Agreements. If Customer has a prior agreement with DyscernAI for the Service, it terminates on the Effective Date, and this Agreement governs going forward.

10. Miscellaneous

10.1 Notices. Notices to Customer will be sent to the email address in the Order Form; notices to DyscernAI must be sent to legal@dyscernai.com. Notices are deemed received when sent. Customer must keep its notification email current.
10.2 Emails. The Parties may use email to satisfy written approval or consent requirements under this Agreement.
10.3 Assignment. Neither Party may assign this Agreement without written consent, except to an Affiliate if the assignee agrees to be bound, the other Party is notified, and (for Customer) the assignee is in the same country. Unauthorized assignments are void.
10.4 Change of Control. If a Party experiences a Change of Control (other than internal restructuring), it will notify the other Party within thirty (30) days, and the other Party may terminate within thirty (30) days of notice.
10.5 Force Majeure. Neither Party is liable for delays (except payment) caused by circumstances beyond reasonable control (e.g., natural disasters, war), provided mitigation efforts are made.
10.6 Subcontracting. DyscernAI may subcontract obligations but remains liable for performance.
10.7 No Agency. This Agreement does not create agency, partnership, or joint venture relationships.
10.8 No Waiver. Failure to exercise rights does not waive them.
10.9 Severability. Invalid provisions do not affect others; Parties will negotiate replacements reflecting original intent.
10.10 No Third-Party Beneficiaries. This Agreement benefits only the Parties unless expressly stated.
10.11 Equitable Relief. Nothing limits either Party’s right to seek equitable relief.
10.12 Governing Law; Arbitration. This Agreement is governed by California law, excluding conflict rules. Disputes are resolved by binding arbitration via JAMS in San Francisco County under Comprehensive Arbitration Rules, with costs split equally. The arbitrator’s decision is final. Equitable relief may be sought in court. Arbitration is individual, not class-based.
10.13 Amendments. Amendments must be written, state intent to amend, and be signed by both Parties.
10.14 Entire Agreement. This Agreement supersedes prior agreements on the subject matter. Neither Party relies on unstated representations.
10.15 Conflicting Terms. In conflicts, Order Forms prevail, followed by this Agreement, then other referenced documents.
10.16 Publicity. Customer agrees DyscernAI may identify Customer as a client and use its name/logo in marketing, unless Customer objects in writing.
10.17 Export Regulation. Customer will comply with U.S. export laws and not export DyscernAI IP to prohibited entities or countries, representing it is not on prohibited lists.
10.18 U.S. Government Rights. The Service is a “commercial product” under 48 C.F.R. § 2.101, with rights limited per federal regulations.
10.19 Anticorruption Laws. Customer will comply with the U.S. Foreign Corrupt Practices Act, U.K. Bribery Act, and similar laws.
10.20 Counterparts; Electronic Signatures. This Agreement may be executed in counterparts, and electronic signatures are binding.
10.21 Headers. Headings are for reference only and do not affect interpretation.

PART B: SPECIFIC TERMS FOR DYSCERNAI

1. Using the Service

1.1 Use by Customer. Subject to payment of Fees and compliance with this Agreement, DyscernAI grants Customer a non-exclusive, non-transferable (except as per Section 10.3 of Part A), non-sublicensable right for Authorized Users to access and use the Service and Competitive Intelligence Data during the Subscription Term for internal business purposes. DyscernAI will provide necessary access credentials or links.
1.2 Use by Affiliates. Customer Affiliates may access and use the Service as Authorized Users under Customer’s Order Form, provided Customer remains responsible for their compliance with this Agreement. Affiliates may also execute separate Order Forms incorporating this Agreement.
1.3 Customer Responsibilities. Customer is solely responsible for third-party products or services interoperating with the Service, and DyscernAI disclaims responsibility for their acquisition or support.
1.4 Beta Features. DyscernAI may offer Beta Features subject to additional terms or limitations specified in an Order Form or separate agreement. Beta Features are provided “as is” without warranties.
1.5 Data Processing and Security. To the extent Customer provides Customer Data, DyscernAI will only use it to provide the Service and support ordered by Customer and not for other products or advertising. DyscernAI will maintain safeguards to protect Customer Data as described in the Data Processing and Security Terms (incorporated by reference). DyscernAI is not responsible for breaches due to Customer’s security configurations or administration. Upon termination, Customer Data will be available for export for thirty (30) days upon request, after which DyscernAI may delete it unless legally required to retain.

2. Updates to Services and Terms

2.1 Changes to Services. DyscernAI may update the Service, provided updates do not materially reduce functionality, performance, availability, or security.
2.2 Changes to Terms. DyscernAI may update this Agreement or referenced terms (e.g., at https://dyscernai.com/msa), provided updates do not (a) materially reduce security, (b) expand DyscernAI’s processing of Customer Data beyond agreed terms, or (c) materially adversely impact Customer’s rights. DyscernAI will notify Customer of material updates.
2.3 Permitted Changes. Sections 2.1 and 2.2 do not limit changes required for legal compliance, addressing security risks, or applicable to Beta Features or pre-general availability offerings.

3. Temporary Suspension

3.1 Service Suspension. DyscernAI may suspend the Service if (a) necessary to comply with law or protect the Service or infrastructure, or (b) Customer’s use breaches this Agreement (e.g., use restrictions or Acceptable Use Policy) and is not cured after notice.
3.2 Limitations on Suspension. DyscernAI will provide notice of suspension causes without undue delay (if legally permitted) and limit suspension to the minimum extent and duration required to resolve the issue.

4. Support and Professional Services

4.1 Technical Support. DyscernAI will provide standard support during the Subscription Term as described at https://dyscernai.com/msa or in an Order Form. Updates to support will not materially diminish service levels.
4.2 Professional Services. Professional Services will be provided as specified in an Order Form or SOW, commencing upon mutual execution.

PART C: DEFINITIONS

  1. Authorized User means Customer’s employees, consultants, contractors, and agents: (a) authorized by Customer to access and use the Service for Customer’s benefit under this Agreement; and (b) for whom access has been acquired hereunder.

  2. Competitive Intelligence Data means data, information, and content collected by the Service from third-party sources, including public internet websites.

  3. Confidential Information means non-public, proprietary, or sensitive information disclosed by a Party, including business, financial, or technical data, intellectual property, and trade secrets, marked as confidential or reasonably considered so. Customer Data is Customer’s Confidential Information; DyscernAI IP, Competitive Intelligence Data, and Agreement terms are DyscernAI’s. Excludes information that is public, known, rightfully obtained, or independently developed.

  4. Customer Data means electronic data submitted by Customer or Authorized Users to the Service.

  5. Documentation means DyscernAI’s user manuals, handbooks, and guides for the Service, provided electronically or in hard copy, as updated.

  6. DyscernAI IP means the Service, Professional Services, Software, Documentation, Competitive Intelligence Data arrangements, Feedback, and related intellectual property, including Usage Data, excluding Customer Data.

  7. Feedback means suggestions, ideas, or recommendations provided by Customer or Authorized Users about DyscernAI IP.

  8. High Risk Activities means activities where failure of the Service could lead to death, personal injury, or significant property or environmental damage (e.g., operation of nuclear facilities, air traffic control, or life support systems).

  9. Order Form means a mutually executed document incorporating this Agreement, documenting Customer’s subscription or service orders.

  10. Professional Services means consulting, installation, implementation, integration, or configuration services provided by DyscernAI per an Order Form or SOW.

  11. Service means DyscernAI’s competitive intelligence software-as-a-service platform per an Order Form, including updates.

  12. Software means software, connectors, APIs, or code provided by DyscernAI under this Agreement.

  13. SOW means a mutually executed document incorporating this Agreement, describing specific Professional Services.

  14. Subscription Term means the initial and renewal terms for the Service per an Order Form.

  15. Third-Party Products means third-party products offered with or incorporated into the Service.

  16. Usage Data means data derived from Service operation, including usage patterns, volumes, and performance metrics.