Terms of 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 of this Agreement (including any limitations and restrictions set forth on the applicable Order Form), Athon grants Customer a nonexclusive, limited, personal, non-sublicensable, nontransferable license to access and use the Athon service(s) specified in such Order Form (collectively, the “Services”) during the term set forth in such Order Form. Customer may only use the Services for its internal business purposes and only in accordance with Athon’s official user documentation (the “Documentation”).

Athon shall make the Services available and provide support, provided the error can be recreated by Athon, in accordance with the support terms set forth in the applicable Order Form or as otherwise communicated to Customer in writing.

Support does not include: (a) development of custom code or computer programs; (b) repairs or service relating to any third-party software; (c) installation; (d) training; (e) designing systems or networks; (f) guidance related to unofficial or “beta” software; or (g) authoring or dictating security practices for a customer. Support does not encompass the remediation of problems or bugs determined by Athon to have been caused by the failure or malfunction of any software, tools, equipment, or facilities not provided by Athon. Support extends only to material non-conformities of which Athon is notified during the Term. Support does not apply or extend to the Services in the event of (i) installation, repair, addition, alteration, modification, or enhancement of the Services performed by parties other than Athon; (ii) use of the Services in conjunction with another vendor’s products resulting in the defect or non-conformance; (iii) failure to follow applicable operation or maintenance requirements; (iv) negligence, abuse, mishandling, misuse, or damage to the Services; or (v) failure to follow the Documentation.

Except as expressly set forth in this Agreement, Customer shall not (and shall not permit any third party to), directly or indirectly: (i) represent that the Output (as defined below) is human-generated; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying models, structure, ideas, or algorithms of the Services (except to the extent applicable laws specifically prohibit such restriction); (iii) modify, translate, or create derivative works based on the Services; (iv) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Services; (v) use the Services for the benefit of a third party; (vi) remove or otherwise alter any proprietary notices or labels from the Services or any portion thereof; (vii) use the Services to build an application or product that is competitive with any Athon product or service or any third-party large language model provider (“Third-Party LLM”); (viii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (ix) bypass any measures Athon may use to prevent or restrict access to the Services (or other accounts, computer systems, or networks connected to the Services); or (x) “crawl, ” “scrape,” or “spider” any page, data, or portion of or relating to the Services, whether through use of manual or automated means. Customer is responsible for all of Customer’s activity in connection with the Services, including uploading Customer Materials onto the Services. Customer shall use the Services in compliance with all applicable local, state, national, and foreign laws, treaties, and regulations (including those related to email marketing, data privacy, international communications, export laws, and the transmission of technical or personal data). Customer shall not use the Services in a manner or for purposes that are harmful, deceptive, threatening, harassing, or obscene, or that violate any third-party intellectual property, contractual, or other proprietary rights. Customer shall indemnify and hold Athon harmless against any damages, losses, liabilities, settlements, and expenses in connection with any claim or action arising from any violation of the foregoing or from Customer’s use of the Services.

Customer acknowledges and agrees that the Services may operate on, integrate with, or use application programming interfaces (APIs) and/or other services provided by third parties (“Third-Party Products”), including Third-Party LLMs and the customer’s own cloud and source systems. Athon is not responsible for the operation of any Third-Party Products nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third-Party Products. Athon does not make any representations or warranties with respect to Third-Party Products or any third-party providers. As between Customer and Athon, Customer is solely and exclusively responsible for obtaining and providing all consents, authorizations, permissions, notices, and access to the Third-Party Products.

Customer acknowledges that certain components of the Services may be covered by open source licenses as promulgated by the Open Source Initiative or as promulgated by the Free Software Foundation (“Open Source Component”). To the extent required by such open source license for the applicable Open Source Component, the terms of such license will apply to such Open Source Component in lieu of the relevant provisions of this Agreement. If such open source license prohibits any of the restrictions in this Agreement, such restrictions will not apply to such Open Source Component. Athon shall provide Customer with a list of Open Source Components upon Customer’s request.

Customer shall pay Athon the applicable fees as set forth in each Order Form (the “Fees”). Unless otherwise specified in an applicable Order Form, payments will be due within thirty (30) days of invoice. Except as otherwise provided in this Agreement or Order Form, all Fees paid are non-refundable, non-cancellable, and not subject to set-off.

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. In the event Customer in good faith disputes any Fees due under any invoice issued by Athon, Customer shall pay the undisputed amount, and the parties shall use diligent efforts to resolve any such dispute. Athon will also be entitled to recover from Customer the costs and expenses incurred in connection with collecting any undisputed Fees (including without limitation costs of investigation, collection agency, court, and attorneys’ fees).

All payments, Fees, and any other charges payable by Customer to Athon under this Agreement are exclusive of all local, state, federal, and foreign taxes, levies, and duties of any nature, including sales, goods and services, value-added, property, excise, withholding, and use taxes (collectively, “Taxes”). Customer shall bear, and is responsible for paying, all Taxes imposed on Customer or Athon arising out of this Agreement, excluding any tax based on Athon’s net income, unless Customer provides Athon with a valid tax exemption certificate authorized by the appropriate taxing authority.

Customer may elect to purchase certain Services through a reseller authorized by Athon to resell the Services (“Reseller”) or to pay through a third party that processes Customer’s payments (each a “Payment Processor”). Customer’s obligation for payment to, and relationship with, such Reseller or Payment Processor is between Customer and such Reseller or Payment Processor and is governed by Customer’s agreement with them. If Customer elects to use a Reseller or Payment Processor, Customer acknowledges and agrees that information about Customer, this Agreement, and any Order Forms may be disclosed to such Reseller or Payment Processor.

Customer shall retain all right, title, and interest in and to the Customer Materials, including all intellectual property rights therein. Customer, not Athon, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Materials. “Customer Materials” includes all data, information, or other material provided, uploaded, or submitted by Customer to the Services, and in customer-hosted deployments includes Customer Data residing within Customer’s own cloud or on-premise environment.

Customer may provide input to be processed by the AI-enabled functionality of the Services (“Input”) and will receive output generated and returned by such AI-enabled functionality (“Output”). Customer represents and warrants that it has obtained all necessary rights, approvals, and consents for its use of Input. For purposes of this Agreement and as between the parties, Input and Output are both deemed Customer Materials, and Customer shall retain all ownership of such Customer Materials, as permitted under applicable law. Customer acknowledges and agrees that (i) the Services may generate the same or similar output for Athon or other third-party end users, and (ii) Customer has no claim of right, title, or interest against Athon or its third-party end users arising from or related to any such output.

As between the parties, Athon retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Athon for the purposes of this Agreement, including any copies and derivative works of the foregoing. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement.

As part of the Services, Athon may provide implementation services and develop and deliver to Customer deliverables or work product (including, without limitation, modifications, implementations, or customizations of the Services) (collectively, “Implementations”). As between the parties, Athon retains all rights, title, and interest (including all intellectual property rights) in and to the Implementations. Customer acknowledges and agrees that the Implementations shall not be deemed a “work-for-hire” and will not be assigned to or owned by Customer. Notwithstanding the foregoing, during the Term and subject to Customer’s full compliance with this Agreement and Athon’s Documentation, Customer may use the Implementations in connection with the Services and for no other purpose.

Customer may (but is not obligated to) provide suggestions, comments, or other feedback to Athon with respect to the Services (“Feedback”). Feedback shall not create any confidentiality obligation for Athon, and Athon may freely use and exploit such Feedback. Customer hereby assigns and agrees to assign to Athon all right, title, and interest in and to such Feedback, including any intellectual property rights therein, and acknowledges and agrees that Athon is free to use such Feedback in any manner, including by implementing such Feedback in the Services without compensation or other obligation to Customer, and without any attribution to Customer. Feedback shall not include any Customer Materials.

Customer acknowledges and agrees that Athon may collect Services usage analytics and performance data on a continual basis for the purposes of providing support and Services improvements, verifying license compliance, ensuring application health, and billing (“Services Usage Data”). Athon may also, in accordance with applicable data privacy laws, monitor Customer’s use of the Services and track and compile data and information related to such use, as long as such data is aggregated and anonymized, including statistical and performance information related to the provision and operation of the Services (“Aggregated Statistics”). As between Athon and Customer, the Aggregated Statistics and Services Usage Data, and all intellectual property rights therein or relating thereto, are and shall remain the exclusive property of Athon. Athon may, without limitation, (a) make such Aggregated Statistics publicly available, (b) use the Aggregated Statistics to the extent and in the manner required by applicable law or regulation, and (c) use the Aggregated Statistics to maintain, optimize, and improve the Services, develop, improve, or offer other Services, or otherwise operate Athon’s business, provided that such Aggregated Statistics do not identify Customer. Athon does not use Inputs, Outputs, or Customer Materials to train, fine-tune, or improve any generalized or foundation AI model, whether Athon’s own or those of any Third-Party LLM. Athon may manually review Outputs against Inputs and the underlying data from which the Output was made for the limited purpose of debugging the Services, only with Customer’s prior consent or as otherwise permitted by the applicable Order Form.

Any exchange of personal data for the purposes of marketing and supporting between Customer and Athon will be governed in accordance with Athon’s current Privacy Policy. Customers operating in healthcare or other regulated industries should review the applicable addendum, including the healthcare privacy addendum.

The terms of this Agreement (but not the existence of this Agreement) shall be regarded as confidential. Such terms shall not be disclosed, except (i) with the prior written consent of the other party; (ii) as may be required under applicable law, regulation, or order of a governmental authority of competent jurisdiction; (iii) during the course of litigation so long as the disclosure of such terms and conditions is subject to the same restrictions as the Confidential Information of the other litigating party; or (iv) in confidence to a party’s board of directors, its senior officers, accountants, tax advisors, auditors, and attorneys for the sole purpose of seeking professional services, and to others with a need to know in order to implement the terms of this Agreement, provided that the recipients are obligated to maintain the confidentiality of the terms of this Agreement. Each party agrees to use the other party’s Confidential Information only as authorized in this Agreement. “Confidential Information” means all non-public, confidential, or proprietary information of a party, including specifications, documents, data, and pricing, disclosed by a party to the other party, whether orally or in written, electronic, or other form, and whether or not marked, designated, or otherwise identified as “confidential.” Each party agrees to hold all of the other party’s Confidential Information in confidence (using at least a commercially reasonable degree of care), to use it only in connection with performance under this Agreement, and to release it only to persons requiring access for such performance, or as may otherwise be required by law. Confidential Information shall not include information that was (a) in the public domain at the time of disclosure; (b) already known to the recipient party at the time of disclosure; or (c) rightfully obtained by a party on a non-confidential basis from a third party.

Athon is responsible for establishing and maintaining a commercially reasonable information security program designed to: (i) ensure the security and confidentiality of Customer Materials that Athon hosts on its own infrastructure; (ii) protect against any anticipated threats or hazards to the security or integrity of such Customer Materials; and (iii) protect against unauthorized access to, or use of, the Services. In customer-hosted deployments, Customer Data remains within the customer’s cloud or on-premise environment, and the customer is responsible for the underlying infrastructure controls; Athon’s control plane does not store, copy, or mirror such Customer Data on Athon-operated infrastructure.

Customer shall use commercially reasonable security and anti-virus measures when accessing and using the Services and shall prevent unauthorized access to or use of the Services, including safeguarding credentials, configuring tenant-level access controls, and operating the customer-hosted environment in accordance with the Documentation.

Unless earlier terminated as provided in this Agreement, this Agreement shall begin on the date of the first Order Form and end as of the expiration of the last active Order Form. For each Order Form, unless otherwise provided therein, the term of such Order Form shall begin as of the date of such Order Form and shall continue until the end of the term set forth in such Order Form, and shall renew for successive one (1) year periods unless either party provides notice of non-renewal at least thirty (30) days prior to the end of the then-current term.

Either party may terminate this Agreement for the other party’s material breach that remains uncured thirty (30) days after the terminating party provides the breaching party notice of such breach. Without limiting the foregoing, Athon may suspend Customer’s access to the Services if Customer’s account is more than sixty (60) days past due.

Upon termination or expiration of this Agreement and any Order Form, all licenses or rights granted to Customer hereunder shall terminate, Customer shall discontinue all use of the Services, and Athon shall have no further obligation to provide the Services or support. All provisions of this Agreement that by their nature should survive termination shall survive, including without limitation accrued payment obligations, ownership provisions, warranty disclaimers, indemnity, and limitations of liability. No later than thirty (30) calendar days after termination or expiration, Athon shall delete Customer’s Services account and any contents stored on Athon-operated infrastructure. In customer-hosted deployments, Customer Data remains within Customer’s environment under Customer’s sole control.

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) in the case of Customer as Indemnitor, the Customer Materials or Customer’s use of the Services infringes, violates, or misappropriates any third-party intellectual property or proprietary right or violates any applicable law; or (ii) in the case of Athon as Indemnitor, the Services infringe, violate, or misappropriate any third-party intellectual property or proprietary right enforceable in a jurisdiction that is signatory to the Berne Convention.

The foregoing obligations of Athon do not apply with respect to the Services or any information, technology, materials, or data (or any portions or components of the foregoing) to the extent (i) not created by Athon (including without limitation any Customer Materials or any output produced by a Third-Party LLM); (ii) made in whole or in part in accordance with Customer specifications; (iii) modified after delivery by Athon; (iv) combined with other products, processes, or materials not provided by Athon (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 use of the Services is not strictly in accordance herewith; or (vii) products for which Athon is not the licensor.

Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (i) 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); (ii) 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 (iii) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense).

This section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for the relevant claims described in this section.

Athon represents and warrants that: (i) it has the authority to enter into this Agreement; (ii) the Services will conform in all material respects to the applicable Documentation during the term of the Order Form, provided the Services are used in accordance with the Documentation and the terms of this Agreement; (iii) the Services shall be provided in a professional and workmanlike manner by qualified personnel; and (iv) it will use commercial industry-standard methods designed to ensure the Services do not include any computer code or other instructions, devices, or techniques, including those known as disabling devices, trojans, or time bombs, that are intentionally designed to disrupt, disable, harm, infect, defraud, damage, or otherwise impede the operation of a network, computer program, or computer system. Notwithstanding any provision of this Agreement to the contrary, Athon shall not have any obligation under clause (ii) of this Section to the extent a nonconformity of the Services is the result of (a) the Services having been modified, repaired, or reworked by any party other than Athon or a third party on behalf of Athon; (b) any use of the Services in conjunction with another product or service not recommended in the Documentation; (c) any damage to the Services beyond Athon’s reasonable control; or (d) any use of or access to the Services not in conformance with the Documentation. The limited warranty set forth in this section does not apply, and is fully excluded, in cases of trial use of the Services.

If the Services do not conform to the warranty as provided above during the applicable warranty period, Athon will, as its sole and exclusive obligation and as Customer’s sole and exclusive remedy for breach of this warranty, at Athon’s election (i) use commercially reasonable efforts to correct such nonconformity, provided the non-conformance can be recreated by Athon; (ii) replace the nonconforming Services; or (iii) if Athon is unable to accomplish either of the foregoing in a commercially reasonable amount of time, Athon may terminate the Order Form for the affected Services and Customer shall be entitled to a pro-rata refund of the Fees paid corresponding to the period of discontinuation of the affected Services. Customer shall notify Athon in writing, specifically describing the non-conformity of the Services within the warranty period, and Athon shall verify the existence of such non-conformity before Athon proceeds as set forth in this Section.

Except as expressly set forth in this section, the Services are provided “as is” and “as available” and are without warranty of any kind, express or implied, including 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, all of which are expressly disclaimed. Further, Athon does not warrant results of use, or that the Services are bug-free or that their use will be uninterrupted.

Customer acknowledges and agrees that AI-enabled features in the Services may generate unreliable, insecure, inaccurate, or offensive output. Customer acknowledges and agrees that: (i) it will evaluate all Output before relying on or otherwise using Output; (ii) it is responsible for ensuring any Output incorporated into Customer intellectual property complies with third-party intellectual property rights; and (iii) such AI-enabled features are not designed for, or intended to be used for, meeting Customer’s compliance with applicable laws or regulatory obligations, including HIPAA and other healthcare-specific frameworks, except where the parties have separately executed an applicable Business Associate Agreement or addendum.

Customer agrees to allow Athon to use and display Customer’s name and logo on Athon’s website and in Athon’s promotional materials to identify Customer as a customer, subject to Customer’s trademark guidelines. Customer may opt out at any time by emailing legal@athonai.com.

Customer may not provide to any person, or export or re-export, or allow the export or re-export of, the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”) in violation of any restrictions, laws, or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing, Customer covenants and warrants that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo, as they may be updated from time to time, or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders.

This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, excluding its conflicts-of-law rules. The United Nations Convention on Contracts for the International Sale of Goods (UNCISG) and the Uniform Computer Information Transactions Act (UCITA) are specifically disclaimed in their entirety.

Any dispute between the parties related to the subject matter of this Agreement will be resolved by binding arbitration in the English language in Wilmington, Delaware under the rules of JAMS, in front of one (1) arbitrator. The decision of the arbitrator will be enforceable in any court. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.

Customer and Athon each agree that any claim related to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights are exceptions to arbitration and will be brought in a judicial proceeding in a court of competent jurisdiction.

Prior to initiating an arbitration, Customer and Athon each agree to notify the other party of the dispute and attempt to negotiate an informal resolution to it first. If after a good-faith effort to negotiate, one party feels the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration.

Customer hereby irrevocably waives all right to trial by jury in any action, suit, proceeding, claim, or counterclaim arising out of or relating to this Agreement. Customer and Athon each agree that any suit, proceeding, or other action arising out of or related to this Agreement will be conducted only on an individual basis and not in a class, consolidated, or representative action.

No action, regardless of form, arising out of this Agreement may be brought by either party more than one year after the cause of action has been or reasonably should have been discovered, except in the case of an action for nonpayment by Customer.

This Agreement represents the entire agreement between Customer and Athon with respect to the subject matter hereof and supersedes all prior or contemporaneous communications and proposals (whether oral, written, or electronic). The terms on any purchase order, confirmation, or similar document submitted by Customer to Athon will have no effect and are hereby rejected. In the event of any conflict or inconsistency between the terms and conditions of this Agreement and the terms of any Order Form, the terms and conditions of the Order Form shall govern.

Except as otherwise provided herein, no modification or amendment of any provision of this Agreement shall be effective unless agreed by both parties in writing, and no waiver of any provision of this Agreement shall be effective unless in writing and signed by the waiving party.

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 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; pandemics; epidemics; and any laws, orders, rules, regulations, acts, or restraints of any government or governmental body or authority, civil or military.

Customer may not assign any of its rights or obligations under this Agreement without Athon’s consent. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective permitted successors and assigns.

If any provision of this Agreement is held to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full effect and enforceable.