These Terms of Service (the “Agreement”) is between Something Great Inc. (“Photon”) and the entity or individual that accepts this Agreement or accesses or uses the Services (“You” or “Customer”). 

BY CLICKING “I ACCEPT,” CREATING AN ACCOUNT, PLACING AN ORDER FOR THE SERVICES, OR OTHERWISE ACCESSING OR USING THE SERVICES, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICES, AGREE TO BE BOUND BY, THIS AGREEMENT, INCLUDING PHOTON’S PRIVACY POLICY. THE INDIVIDUAL ACCEPTING THIS AGREEMENT REPRESENTS THAT THEY ARE AUTHORIZED TO BIND CUSTOMER. IF YOU DO NOT AGREE, YOU DO NOT HAVE PERMISSION TO USE THE SERVICES.

ARBITRATION NOTICE. EXCEPT FOR CERTAIN DISPUTES DESCRIBED IN SECTION 21 (DISPUTE RESOLUTION AND ARBITRATION), YOU AGREE THAT DISPUTES ARISING UNDER THIS AGREEMENT WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND BY ACCEPTING THIS AGREEMENT, YOU AND PHOTON ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING.

MESSAGING COMPLIANCE NOTICE. The Services transmit communications that Customer and its AI Agents originate. Customer is solely responsible for the content of those communications and for compliance with applicable messaging, telemarketing, privacy, and AI-disclosure Laws, including the Telephone Consumer Protection Act (TCPA) and CAN-SPAM, as further described in Section 3.6 (Messaging, Telecommunications, and AI Compliance).

1. Definitions. Certain capitalized terms used in this Agreement have the meanings given below; others are defined contextually in this Agreement.

“Aggregated Data” means Customer Data that has been deidentified or aggregated with other data such that the resulting data no longer reasonably identifies Customer or a specific individual. 

“AI Agent” means the automated, artificial-intelligence, or software agent, model, workflow, or application that Customer builds, configures, or operates and connects to the Services, and that generates or determines the Message Content.

“API Credentials” means any API keys, tokens, secrets, usernames, passwords, certificates, or other access credentials used to access Photon’s APIs made available as part of the Services.

“Authorized User” means any employee or contractor of Customer that Customer allows to use the Services on Customer’s behalf.

“Carrier Requirements” means requirements imposed by mobile network operators, messaging platforms, aggregators, carriers, and industry bodies, as may be updated from time to time.

“Customer Data” means any data, content, or information that: (a) Customer (including its Authorized Users and AI Agents) submits to the Services, including from Third-Party Platforms; and (b) is Processed by Photon to provide the Services to Customer. Customer Data includes, without limitation (i) Message Content and (ii) End User contact information.

“Customer Systems” means Customer’s hardware, software, other technology, and infrastructure that Customer is required to provide and maintain in order for Customer to access and use the Services.

“Documentation” means the then-current version of Photon’s usage guidelines and standard technical documentation for the Services that Photon makes generally available to its customers that it provides the applicable Services to, the current version of which are at https://photon.codes/docs/spectrum-ts/introduction.

“End User” means any recipient of, or participant in, a communication transmitted through the Services by or on behalf of Customer or its AI Agent.

“High Risk Activities” means activities where use or failure of a Service could lead to death, personal injury, or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles, or air traffic control.

“Laws” means all applicable relevant local, state, federal, and international laws, rules, regulations, conventions, codes, ordinances, and directives, including those related to data privacy and data transfer, international communications, marketing, communications, and export of data, including the Telephone Consumer Protection Act (TCPA), CAN-SPAM, FCC rules and guidance, state consumer protection and privacy laws.  As used in this Agreement, Laws also include Carrier Requirements.

“Message Content” means the content of any message, call, or other communication that Customer or its AI Agent creates, submits, or transmits through the Services.

“Messaging Account” means any messaging, telephony, or communications account, sender identifier, or registration with a Third-Party Platform or carrier that is used to transmit or receive communications through the Services on Customer’s behalf.

“Order” means an order for Services placed by Customer, whether (a) submitted and confirmed by Customer through the online ordering process provided by Photon for the Services (including by selecting a plan, configuring quantities or usage, and clicking to accept and pay) or (b) executed by the parties in writing, and that expressly references this Agreement. 

“Platform Terms” means the terms, policies, and requirements of the Third-Party Providers.

“Policies” means Photon’s policies applicable to the Services that are referenced in this Agreement or otherwise made available by Photon.

“Process” means to collect, access, use, disclose, transfer, transmit, store, host, or otherwise process.

“Prohibited Data” means any: (a) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (b) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”); (c) credit, debit, or other payment card data subject to the Payment Card Industry Data Security Standards (“PCI DSS”); (d) other information subject to regulation or protection under specific Laws such as the Children’s Online Privacy Protection Act or Gramm-Leach-Bliley Act (or related rules or regulations); (e) social security numbers, driver’s license numbers, or other government ID numbers. 

“Service” or “Services” means the then-current version of Photon’s proprietary services that are identified in the relevant Order. Each of the Services includes the Software and Documentation for the Service. 

“Software” means any software, scripts, or other code used by Photon to operate a Service.

“Subscription Term” means the period during which Customer’s subscription to access and use the Services is in effect, as identified in the applicable Order.

“Third-Party Limits” means the message-volume caps, daily-message limits, throughput and rate limits, sender or campaign restrictions, and similar controls imposed by Third-Party Providers, as further described in Section 9 (Third-Party Providers).

“Third-Party Platform” means any third-party platform, add-on, service, or product not provided by Photon that Customer elects to integrate or enable for use with any Service. 

“Third-Party Providers” means, collectively, the Third-Party Platforms and the carriers, operating systems, aggregators, network providers, and other providers involved in the transmission of Message Content in connection with the Services.

“Usage Data” means information generated from the use of the Services, which data does not identify Authorized Users, End Users, any other natural human persons, or Customer, such as technical logs, data, and learnings about Customer’s use of the Services, but excluding any identifiable Customer Data. 

1. Overview. Photon provides a developer platform and dashboard (the “Spectrum Dashboard”) designed to enable users to build, deploy, manage, and monitor AI-powered agents across multiple channels. The Services may include, to the extent est forth on the applicable Order, but are not limited to: (a) the Spectrum Dashboard; (b) APIs for programmatic access to platform functionality; (c) AI Agent deployment and distribution tools; (d) analytics, observability, and monitoring features; and (e) Documentation and developer resources.

2. Services. 

   1. Ordering Process. Services are purchased as stated in an Order in the manner established for each of the Services. Each Order will describe the Services ordered, including, as applicable, the Services, plan, number of units or usage entitlements, pricing, and the applicable Subscription Term. By placing an Order, Customer authorizes the associated Fees. In the event of a conflict, an executed Order controls over an online Order for the same Services and Subscription Term. An Order is binding on Customer when Customer completes the online checkout or otherwise submits the Order through the Services or, for Orders that are executed by the parties, on the effective date set forth in such Order.

   2. Permitted Use. During a Subscription Term, subject to Customer’s compliance with the terms of this Agreement, Customer may access and use the Services only for its internal business purposes in accordance with the Documentation, this Agreement, and any limitations set forth in an Order.

   3. Authorized Users. Only Authorized Users, using the mechanisms designated by Photon (“Log-in Credentials”), may access and use the Services. Each Authorized User must keep its Log-in Credentials confidential and not share them with anyone else. Customer is responsible for its Authorized Users’ compliance with this Agreement and all actions taken through their Log-in Credentials. Customer will ensure that its Authorized Users are bound by written agreements no less protective than the terms of this Agreement.  Customer will promptly notify Photon if it becomes aware of any compromise of any Log-in Credentials. Photon may Process Log-in Credentials in connection with Photon’s provision of the Services or for Photon’s internal business purposes. Customer’s Log-in Credentials include its API Credentials, and Customer will use available security features such as credential rotation, access logging, and multi-factor authentication. Customer will safeguard its Log-in Credentials using reasonable administrative, physical, and technical measures (including least-privilege access and secure storage) and will not sell, share, or transfer them except to Authorized Users. Customer will promptly, and in any event within 24 hours, notify Photon of any suspected or actual compromise of any Log-in Credentials. Upon any suspected or actual compromise, Customer will promptly take corrective action to mitigate it and will cooperate with Photon’s reasonable requests to investigate and remediate.

   4. Restrictions. Customer will not (and will not permit anyone else to) do any of the following: (a) use any of the Services outside the scope of, or other than in strict compliance with, the terms of this Agreement; (b) provide access to, distribute, sell, lease, or sublicense any of the Services to a third party (other than Authorized Users); (c) use any of the Services on behalf of, or to provide any product or service to, third parties; (d) use any of the Services to develop a similar or competing product or service; (e) reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs to any of the Services, except to the extent expressly permitted by Law (and then only with prior notice to Photon); (f) modify or create derivative works of any of the Services or copy any element of any of the Services; (g) remove or obscure any proprietary notices in any of the Services; (h) publish benchmarks or performance information about any of the Services; (i) interfere with the operation of any of the Services, circumvent any access restrictions, or conduct any security or vulnerability test of any of the Services; (j) transmit any viruses or other harmful materials to any of the Services; (k) take any action that risks harm to others or to the security, availability, or integrity of any of the Services; (l) evade or circumvent any safeguard, filter, compliance check, sender-ID vetting, throughput restriction, or rate limit, or attempt to route around any carrier or platform block; or (m) access or use any of the Services in a manner that violates any Law. Additionally, Customer must not use any of the Services with Prohibited Data or for High Risk Activities. Customer acknowledges that the Services are not intended to meet any legal obligations for these uses, including HIPAA requirements, and that Photon is not a Business Associate as defined under HIPAA. Notwithstanding anything else in this Agreement, Photon has no liability for Prohibited Data or use of any of the Services for High Risk Activities.

   5. Messaging Accounts.  For the avoidance of doubt, as between the parties, Customer is responsible for each of its Messaging Accounts and all activity conducted through such Messaging Accounts. Customer represents and warrants that it has authority to authorize Photon to transmit the Message Content on Customer’s behalf in connection with Customer’s Messaging Accounts and that Customer’s use of the Services complies with the applicable Platform Terms. Photon does not control and is not responsible for any Third-Party Provider’s decision to suspend, restrict, rate-limit, deregister, or terminate any Messaging Account, credential, or sender identifier.

   6. Messaging, Telecommunications, and AI Compliance.  Customer acknowledges that it is Customer's sole responsibility to remain informed and compliant with all Laws applicable to communications with End Users, including but not limited to data privacy Laws and regulations concerning AI use. Photon’s provision of services and guidelines is designed to support compliance but does not absolve Customer of its legal responsibilities. Customer is solely responsible for ensuring that its use of the Services, its AI Agents, and all Message Content comply with Laws, Carrier Requirements, and Platform Terms. Customer must obtain and maintain all consents, permissions, and opt-ins required by Laws and Carrier Requirements for each End User before communications are transmitted, and must be able to demonstrate consent and provide opt-in records on request. Customer must provide and honor opt-out and revocation mechanisms as required by Laws and Carrier Requirements and promptly cease communications to any End User who opts out. Customer will not use the Services to send spam, unsolicited messaging, bulk SMS marketing, or other high-volume or abusive outreach, or to create or transmit content that is illegal, fraudulent, deceptive, harmful, harassing, abusive, offensive, intimidating, obscene, hateful, discriminatory, defamatory, or infringing, and will not impersonate any person or entity or misrepresent its affiliation, identity, or sender identity. Customer is responsible for making all disclosures required by Laws, including regarding AI disclosures, and Platform Terms, including any required indication that an End User is interacting with an artificial-intelligence or automated agent, and will not use the Services to deceive or mislead End Users as to the automated nature or source of communications. Photon does not originate, select, review, monitor, or control Message Content and is not responsible for its legality, accuracy, or appropriateness. Photon may, from time to time and in its sole discretion, provide recommendations or operational guidance intended to help Customers improve message deliverability or reduce the likelihood of filtering or latency degradation.  Such guidance is provided for informational purposes only. Customer remains solely responsible for its messaging practices, Message Content, sending volumes, and compliance with applicable Platform Terms. Customer will make, and will permit Photon and its underlying carriers, network providers, and other Third-Party Providers to make, any disclosures to End Users that Laws or Carrier Requirements require regarding the carriers or networks used to transmit communications, and Customer will not represent any underlying carrier or network service as its own.

   7. Cooperation and Audit.  Photon is not obligated to monitor Customer compliance, including with this Agreement, Laws, Carrier Requirements, or Platform Terms, but reserves the right to conduct compliance reviews.  Customer will promptly and reasonably cooperate with Photon, Third-Party Providers, regulators, and law enforcement in connection with investigations of complaints or suspected violations of this Agreement, Laws, Carrier Requirements, or Platform Terms. Upon request, Customer will provide documentation reasonably necessary to demonstrate compliance, and if Photon reasonably believes Customer is in violation (or a carrier, supplier, or regulator so requires) Customer will permit Photon to conduct an audit of Customer’s relevant records and processes (remotely where feasible).

   8. Acceptable Use.  Customer will use the Services, and will ensure that its AI Agents and End Users use the Services, in a responsible, lawful, and ethical manner. Without limiting Section 3.4 (Restrictions) or Section 3.6 (Messaging, Telecommunications, and AI Compliance), Customer will not use the Services to: (a) handle personal data or personally identifiable information (as such terms are defined under applicable data privacy Laws) unethically or unlawfully, including through unauthorized biometric identification, surveillance, or data extraction; (b) deliver or automate critical advice in legal, health, or financial matters without supervision by a qualified professional and clear disclosure of the AI’s involvement and its limitations, or make automated decisions in high-stakes areas (such as criminal justice or critical infrastructure) that affect individuals’ fundamental rights; (c) facilitate activities that could cause financial instability or harm, such as gambling or high-interest lending; (d) engage in political campaigning or efforts to manipulate democratic processes; (e) produce or disseminate disinformation, engage in fake or deceptive digital interactions, or impersonate any person or entity without authorization; (f) transmit content that is inappropriate for its audience, including content harmful to minors, or sexually explicit content except for legitimate educational or scientific purposes; or (g) create multiple accounts or otherwise act to evade the Services’ limits, quotas, filters, or other restrictions. Customer will implement reasonable measures to monitor and regulate its and its Authorized Users’ use of the Services to prevent misuse or harm to individuals, society, or the operational integrity of the Services.

3. Upgrades. Customer’s purchase of access to Services is not contingent on the delivery of any future functionality or features or dependent on any oral or written public or private comments made by Photon regarding future functionality or features of the Services. From time to time, Photon, in its sole discretion, may make available additions, enhancements, upgrades, new services, features, or modules under additional or different terms. 

4. Data. 

   1. Use of Customer Data. Customer grants Photon the non-exclusive, worldwide, sublicensable right to use, copy, store, disclose, transmit, transfer, publicly display, modify, create derivative works from, and otherwise Process Customer Data only as necessary to: (a) provide Services; (b) derive or generate Usage Data; (c) create and compile Aggregated Data; and (d) as otherwise required by Laws or as agreed to in writing between the parties.

   2. Usage Data; Aggregated Data. Photon may Process Usage Data and Aggregated Data for internal business purposes, such as to: (a) track use of Services for billing purposes; (b) provide support for Services; (c) monitor the performance and stability of the Services; (d) prevent or address technical issues with the Services; (e) to improve Services, its other products and services, and to develop new products and services, such as to develop, train, fine-tune, evaluate, and improve Photon’s machine-learning models and algorithms; and (f) for all other lawful business practices, such as analytics, benchmarking, and reports. Customer will not interfere with the collection of Usage Data. 

   3. Communications Privacy.  Customer acknowledges that communications transmitted through Third-Party Providers may not be encrypted end-to-end at every stage, may be accessible to the applicable Third-Party Provider, and that Photon cannot guarantee the privacy or security of communications once they leave the Services or are handled by a Third-Party Provider. Photon disclaims liability for privacy or security limitations of Third-Party Providers.

5. Customer Obligations. Customer is responsible for its Customer Data, including Message Content, and will comply with Laws and Photo’s documentation and policies made available to Customer in writing when using the Services. Customer represents and warrants that it has made all disclosures, provided all notices, and has obtained all rights, consents, and permissions necessary for Photon to Process Customer Data, including to transmit Message Content to End Users, as set forth in this Agreement without violating or infringing Laws, third-party rights, or terms or policies that apply to the Customer Data. Customer is solely responsible for its AI Agents, Message Content, recipient and suppression/opt-out lists, and its messaging practices, and will comply with all Laws, Carrier Requirements, and Platform Terms when using the Services. Customer represents and warrants that it has obtained and will maintain all consents, permissions, and opt-ins required for each End User before communications are transmitted through the Services, and will provide accurate account and registration information and keep it current.

6. Suspension or Termination of Service. Photon may immediately suspend or terminate Customer’s access to any or all of the Services if: (a) Customer breaches any term of this Agreement, including Section 3.4 (Restrictions) or Section 6 (Customer Obligations); (b) Customer’s account is 30 days or more overdue; (c) changes to Laws or new Laws require that Photon suspend any of the Services or otherwise may impose additional liability on the part of Photon; (d) Customer exceeds usage limits for the applicable Service as set forth on the applicable Order, or if no usage limits are set forth on the applicable Order, reasonable and ordinary use of the Service as determined by Photon in its sole discretion; (e) Customer’s messaging or use creates carrier, legal, or regulatory risk to Photon or its suppliers, causes or is likely to cause abuse, fraud, security risk, or material complaint rates, or if a Third-Party Provider requires suspension, termination, blocking, filtering, or takedown, and may condition reinstatement on Customer’s implementation of corrective actions; or (f) Customer’s actions risk harm to any of Photon’s other customers or the security, availability, or integrity of any of the Services or any underlying carrier or network. Where practicable, Photon will use reasonable efforts to provide Customer with prior notice of the suspension (email sufficing). Notwithstanding the foregoing, Photon may suspend or terminate immediately and without prior notice where an underlying carrier, network provider, Third-Party Provider, regulator, or Law requires suspension or termination or where prior notice is not practicable.

7. Customer Systems. Customer will provide and maintain any Customer Systems. 

8. Third-Party Platforms and Third-Party Providers. The messaging functionality of the Services relies on Third-Party Providers that Photon does not control, and transmission, routing, delivery, and timing are subject to their technical, operational, and policy constraints and to Third-Party Limits that the applicable Third-Party Provider establishes and enforces and may change at any time with or without notice. Customer may also configure its own usage or message limits or be subject to limits set in an Order. If communications exceed or approach applicable Third-Party Limits, they may be queued, delayed, deprioritized, throttled, rejected, filtered, blocked, or classified as spam by Third-Party Providers or recipient systems. Photon does not guarantee message delivery, timing, routing, prioritization, or deliverability outcomes, and has no liability for any communication that is delayed, blocked, filtered, misrouted, classified as spam, or not delivered as intended due to any Third-Party Provider or recipient system. Any guidance Photon provides on deliverability is informational only, and Customer remains solely responsible for its messaging practices, Message Content, and sending volumes. Photon may implement reasonable technical safeguards within the Services to protect their integrity, stability, and security, including measures to mitigate abuse, fraud, excessive traffic, and operational risk. Use of Third-Party Provider is subject to Customer’s agreement with the relevant provider and not this Agreement. Photon does not control and has no liability for Third-Party Providers, including their security, functionality, operation, availability, or interoperability with the Services or how the Third-Party Providers or their providers use Customer Data. By enabling a Third-Party Platform to interact with the Services, Customer authorizes Photon to access and exchange Customer Data with such Third-Party Platform on Customer’s behalf.

9. Commercial Terms.

   1. 10.1.Subscription Term. Except as set forth in an Order, each Subscription Term will automatically renew for successive one-month periods unless either party gives the other party notice of non-renewal before the current Subscription Term ends, which Customer may provide by cancelling through the Services. 

   2. 10.2.Fees and Taxes. Fees for the Services are described in each Order (“Fees”). All Fees will be paid in US dollars unless otherwise provided in an Order. Fees are invoiced as described on the schedule in the Order. Unless the Order provides otherwise, all Fees are due within 30 days of the invoice date. Customer must dispute any charge in writing within 60 days of the relevant invoice or charge date, stating the charge date, disputed amount, and basis for the dispute, or the dispute will be deemed waived. Fees for renewal Subscription Terms are at Photon’s then-current rates, regardless of any discounted pricing in a prior Order. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by Law, whichever is less. All Fees are non-refundable.  Customer is responsible for any sales, use, GST, value-added, withholding, or similar taxes or levies that apply to Orders, whether domestic or foreign, other than Photon’s income tax (“Taxes”). Fees are exclusive of all Taxes. Customer authorizes Photon and its payment processor to charge Customer’s designated payment method on a recurring basis for all Fees and applicable Taxes as they become due.

10. Warranty Disclaimers. The Services are provided “AS IS”. Photon, on its own behalf and on behalf of its suppliers and licensors, disclaims all implied warranties, whether statutory or otherwise, including warranties of merchantability, fitness for a particular purpose, title, or noninfringement. Without limitation, Photon does not warrant that the Services will be uninterrupted or error-free, that communications will be delivered, received, read, or timely, or that Customer’s use of the Services will comply with any Laws or Carrier Requirements, and Photon is not responsible for reviewing, storing, or the accuracy, completeness, legality, or reliability of any Customer Data or Message Content, or for any deletion, failure to store, misdelivery, or untimely delivery of any data or communication. Photon does not provide legal advice, and Customer is solely responsible for its compliance. Photon is not liable for problems inherent in the Internet or other systems outside Photon's control. Any statutorily required warranties are limited to the shortest legally permitted period. 

11. Term and Termination.

    1. 12.1.Term. This Agreement remains in effect until (a) all Subscription Terms for applicable Orders have expired or (b) this Agreement is otherwise terminated as set forth in this Section 12 (Term and Termination) (the “Term”).

    2. 12.2.Termination. Unless otherwise set forth in an applicable Order, Customer may terminate this Agreement and all applicable Orders at any time by contacting Photon or using the account deletion functionality in the Spectrum Dashboard. Photon may suspend or terminate Customer’s access to the Services at any time and for any reason, including as described in Section 7 (Suspension of Service), and including if Photon reasonably believes Customer has violated this Agreement. Upon termination, Customer’s right to use the Services ceases immediately.

    3. 12.3.Effect of Termination. Upon expiration or termination of an Order, Customer’s access to and Photon’s obligations to provide the Services (including all APIs) described in the Order and any Software will cease, and Customer shall immediately cease using the Services, including to sending messages via the Services. During a Subscription Term and for the 30 day period immediately following the date of expiration or earlier termination of the applicable Subscription Term, Customer may export data or information that Customer (including its Authorized Users) submits to the Services using the export features described in the applicable Documentation. After that 30 day period, Photon will be under no obligation to store or retain the applicable Customer Data and may delete the applicable Customer Data at any time in its sole discretion.  Customer Data and other Confidential Information, as defined in Section 16.1 (Definition), may be retained in Photon's standard backups notwithstanding any obligation to delete the applicable Confidential Information but will remain subject to this Agreement’s confidentiality restrictions. 

    4. 12.4.Survival. These Sections survive expiration or termination of this Agreement: 1 (Definitions); 3.4 (Restrictions), 3.5 (Messaging Accounts), 3.6 (Messaging, Telecommunications, and AI Compliance), 3.7 (Cooperation and Audit), 3.8 (Acceptable Use), 5.2 (Usage Data; Aggregated Data), 5.3 (Communications Privacy), 6 (Customer Obligations), 9 (Third-Party Providers), 10.2 (Fees and Taxes), 11 (Warranty Disclaimers), 12.3 (Effect of Termination), 12.4 (Survival), 13 (Ownership), 14 (Limitations of Liability), 15 (Indemnification), 16 (Confidentiality), 17 (Required Disclosures), 20 (General Terms), and 21 (Dispute Resolution and Arbitration). Except where an exclusive remedy is provided in this Agreement, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.  

12. Ownership. Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except as expressly provided in this Agreement, as between the parties, Customer retains all intellectual property rights and other rights in Customer Data provided to Photon. Except for Customer’s use rights in this Agreement, Photon and its licensors retain all intellectual property rights and other rights in the Services, Software, Documentation, Usage Data, and Photon technology, templates, formats, and dashboards, including any modifications or improvements to these items made by Photon. If Customer provides Photon with feedback or suggestions regarding the Services or other Photon offerings, Photon may use the feedback or suggestions without restriction or obligation. 

13. Limitations of Liability. Photon (and its suppliers and licensors) will not have any liability arising out of or related to this Agreement for (a) any loss of use, lost data, lost profits, failure of security mechanisms, interruption of business, or any indirect, special, incidental, reliance, or consequential damages of any kind, even if informed of their possibility in advance or (b) any amounts that exceed, in aggregate, the amounts paid or payable by Customer to Photon pursuant to this Agreement during the 12 months prior to the date on which the applicable claim giving rise to the liability arose under this Agreement. The waivers and limitations in this Section 14 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.

14. Indemnification.  Customer will defend, indemnify, and hold Photon harmless from and against any claim, action, investigation, penalty, fines, liability, loss, damage, assessment, penalty, cost, and expense (including reasonable attorneys’ fees) arising out of or relating to (a) Customer’s use of the Services; (b) Customer Data (including Message Content); or (c) Customer’s breach or alleged breach of this Agreement or any Laws, Carrier Requirements, or Platform Terms; (d) any carrier, aggregator, or supplier claim, demand, suspension, chargeback, penalty, or assessment attributable to Customer’s traffic, complaint rates, registration status, or content; (e) any claim by a third party, including any End User, relating to unwanted messaging, privacy, consent, opt-out failures, misrepresentation, harassment, AI disclosure, or content; (f) any claim, demand, fine, penalty, suspension, or assessment made by or arising from any underlying network carrier or telecommunications provider in connection with Customer’s traffic, content, registration status, or use of the Services; (g) any cybersecurity, data-security, or privacy incident to the extent arising from Customer’s use of the Services, Customer Data, or Message Content; (h) Customer’s use of the Services in violation of this Agreement or any Laws, including but not limited to FCC rules, TCPA, CPNI obligations, state telecommunications regulations, and applicable data privacy laws; (i) any regulatory investigation, enforcement action, audit, or proceeding, whether initiated by a governmental authority or private party, arising from Customer’s activities under this Agreement, including any fines, penalties, or remediation costs imposed on Photon as a result of Customer’s conduct; (j) Customer’s failure to obtain required consents, licenses, permits, or approvals; (k) any claim by a third party, including Customer’s end-users, customers, or employees, arising from Customer’s provision of services using the Services; (l) Customer’s breach of any representation, warranty, covenant, or obligation under this Agreement; (m) the negligence, gross negligence, willful misconduct, or fraud of Customer or any of its Authorized Users, employees, contractors, or agents; (n) any unauthorized resale, subletting, or redistribution of the Services; or (o) any claim arising from Customer’s collection, storage, processing, or transmission of personal data, protected health information, or other regulated data through the Services and will indemnify and hold harmless Photon against any damages and costs awarded against Photon or agreed in a settlement by Customer resulting from the claim. In the event of any regulatory inquiry or enforcement action involving Customer’s use of the Services, Customer will promptly notify Photon, cooperate fully with Photon and applicable regulatory authorities, provide all reasonably requested documents and records, and bear all costs and losses associated with such regulatory action to the extent arising from Customer’s conduct.

15. Confidentiality. 

    1. 16.1.Definition. “Confidential Information” means information disclosed to the receiving party (“Recipient”) under this Agreement that is designated by the disclosing party (“Discloser”) as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Photon’s Confidential Information includes the terms and conditions of this Agreement and any technical or performance information about the Services. Customer’s Confidential Information includes Customer Data. 

    2. 16.2.Obligations. As Recipient, each party will: (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement; and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. At Discloser’s request, Recipient will delete all Confidential Information, except, in the case where Photon is the Recipient, Photon may retain the Customer’s Confidential Information to the extent required to continue to provide the Services or as otherwise permitted in this Agreement. Recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know (including, for Photon, the subcontractors referenced in Section 20.9), provided it remains responsible for their compliance with this Section 16 and they are bound to confidentiality obligations no less protective than this Section 16.

    3. 16.3.Exclusions. These confidentiality obligations do not apply to information that Recipient can document: (a) is or becomes public knowledge through no fault of the receiving party; (b) it rightfully knew or possessed prior to receipt under this Agreement; (c) it rightfully received from a third party without breach of confidentiality obligations; or (d) it independently developed without using Confidential Information. 

    4. 16.4.Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 16.

16. Required Disclosures. Nothing in this Agreement prohibits either party from making disclosures, including of Customer Data and other Confidential Information, if required by Law, subpoena, or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment.

17. Trials and Betas. If Customer receives access to Services or features thereof on a free or trial basis or as an alpha, beta, or early access offering (“Trials and Betas”), use is permitted only for Customer’s internal evaluation during the period designated by Photon (or if not designated, 30 days). Trials and Betas are optional and either party may terminate Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete, or include features that Photon may never release, and their features and performance information are Photon’s Confidential Information. Notwithstanding anything else in this Agreement, Photon provides no warranty, indemnity, or support for Trials and Betas, and its liability for Trials and Betas will not exceed US$50.

18. Publicity. Neither party may publicly announce that the parties have entered into this Agreement, except with the other party’s prior consent or as required by Laws. However, Photon may include Customer and its trademarks in Photon’s customer lists and promotional materials but will cease further use at Customer’s written request. 

19. General Terms.

    1. 20.1.Assignment. Neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all its assets or voting securities to the other party involved in such transaction. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.

    2. 20.2.Governing Law, Jurisdiction and Venue. This Agreement is governed by the laws of the State of [California] and the United States without regard to conflicts of laws provisions that would result in the application of the laws of another jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. Subject to Section 21, the jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in [San Francisco, California] and both parties submit to the personal jurisdiction of those courts.

    3. 20.3.Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.

    4. 20.4.Notices. Except as set out in this Agreement, any notice or consent under this Agreement must be in writing to the addresses on the first page and will be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if by certified or registered U.S. mail (return receipt requested); or (c) one day after dispatch if by a commercial overnight delivery service. Notices may not be sent via email unless otherwise expressly permitted elsewhere in this Agreement. Either party may update its address with notice to the other party. Photon may also send notices to Customer by email or through the Services.  

    5. 20.5.Entire Agreement. This Agreement (which includes all Orders, Schedules, and the Policies) is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.

    6. 20.6.Amendments. Photon may modify this Agreement and the Policies from time to time by posting the modified version or notifying Customer (email or through the Services sufficing); changes are effective on the date specified or, if none, upon posting, and Customer’s continued use of the Services after the effective date constitutes acceptance, except where prohibited by law and subject to Section 21.9 (Modifications to this Arbitration Provision).  Customer may not modify this Agreement unless such modification is expressly agreed to by Photon in writing.

    7. 20.7.Waivers and Severability. Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal, or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.

    8. 20.8.Force Majeure. Photon shall not be liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster (“Force Majeure Events”).

    9. 20.9.Subcontractors. Photon may use subcontractors and permit them to exercise Photon’s rights, but Photon remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.

    10. 20.10.Independent Contractors. The parties are independent contractors, not agents, partners, or joint venturers.

    11. 20.11.Export. Customer will comply with all relevant U.S. and foreign export and import Laws in using any Service. Customer: (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country; (b) agrees not to access or use Services in violation of any U.S. export embargo, prohibition, or restriction; and (c) will not submit to the Services any information controlled under the U.S. International Traffic in Arms Regulations.

    12. 20.12.Open Source. The Software may incorporate third-party open source software (“OSS”), as listed in the Documentation or otherwise disclosed by Photon in writing. To the extent required by the OSS license, that license will apply to the OSS on a stand-alone basis instead of this Agreement. 

    13. 20.13.Government End-Users. Elements of the Services are commercial computer software. If the user or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Services were developed fully at private expense. All other use is prohibited.

    14. 20.14.Conflicts in Interpretation. If there are inconsistencies or conflicts between the terms of the body of this Agreement and the terms of any Schedules, exhibits, attachments, addenda, Policies, and other documents attached to or incorporated by reference in this Agreement, the order of precedence is as follows: (a) the terms contained in the body of this Agreement; (b) the terms of the Schedules, exhibits, attachments, addenda, and Policies to this Agreement; and (c) the Documentation. 

20. Dispute Resolution and Arbitration

    1. 21.1.Generally.  Except as described in Sections 21.2 (Exceptions) and 21.3 (Opt-Out), you and Photon agree that every dispute arising in connection with this Agreement, the Services, or communications from us will be resolved through binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury, is less formal than a court proceeding, may allow for more limited discovery than in court, and is subject to very limited review by courts. This agreement to arbitrate includes all claims whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after termination of this Agreement. Any dispute relating to the interpretation, applicability, or enforceability of this arbitration agreement will be resolved by the arbitrator.

YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND PHOTON ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

1. 21.2.Exceptions.  Nothing in this Agreement waives, precludes, or limits the right of either party to: (a) bring an individual action in small-claims court; (b) pursue an enforcement action through an applicable federal, state, or local agency if available; (c) seek injunctive relief in a court in aid of arbitration; or (d) file suit in a court to address an intellectual-property infringement claim.

2. 21.3.Opt-Out.  If you do not wish to resolve disputes by binding arbitration, you may opt out within 30 days after the date you first agree to this Agreement by sending a letter to Something Great Inc., Attention: Legal Department – Arbitration Opt-Out, Company address: 1111B S Governors Ave STE 29373 Dover, DE 19904 US specifying your full legal name, the email address associated with your account, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Photon receives your Opt-Out Notice, this Section 21 will be void and any action will be resolved as set forth in Section 21.2 (Exceptions). The remaining provisions of this Agreement are unaffected.

3. 21.4.Arbitrator.  This arbitration agreement and any arbitration are subject to the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules (the “AAA Rules”) as modified by this Agreement. The AAA Rules and forms are available at www.adr.org, by calling +1-800-778-7879, or by contacting Photon.

4. 21.5.Commencing Arbitration.  Before initiating arbitration, a party must first send a written notice of the dispute to the other by certified U.S. Mail or Federal Express (signature required), or, only if that party has not provided a current physical address, by electronic mail (“Notice of Arbitration”). Photon’s address for Notice is: Something Great Inc. Company address: 1111B S Governors Ave STE 29373 Dover, DE 19904 US. The Notice of Arbitration must: (a) identify the name or account number of the party making the claim; (b) describe the nature and basis of the claim; and (c) set forth the specific relief sought (“Demand”). The parties will make good-faith efforts to resolve the claim directly, but if they do not reach agreement within 30 days after the Notice of Arbitration is received, either party may commence arbitration. If you commence arbitration in accordance with this Agreement, Photon will reimburse your payment of the filing fee, unless your claim is for more than US$10,000 or Photon has received 25 or more similar demands, in which case fee payment will be decided by the AAA Rules. If the arbitrator finds that the substance of the claim or the relief sought is frivolous or brought for an improper purpose (as measured by Federal Rule of Civil Procedure 11(b)), the payment of all fees will be governed by the AAA Rules and the other party may seek reimbursement for fees paid to the AAA.

5. 21.6.Arbitration Proceedings.  Any arbitration hearing will take place in the county and state of your billing address unless the parties agree otherwise or, if the claim is for US$10,000 or less (and does not seek injunctive relief), you may choose whether the arbitration is conducted: (a) solely on documents submitted to the arbitrator; (b) through a telephonic or video hearing; or (c) by an in-person hearing as established by the AAA Rules in the county of your billing address. The amount of any settlement offer must not be disclosed to the arbitrator until after a final decision. The arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions.

6. 21.7.Arbitration Relief.  Except as provided in Section 21.8 (No Class Actions), the arbitrator may award any relief available in a court of competent jurisdiction. If the arbitrator awards you an amount higher than Photon’s last written settlement offer made before the arbitrator was selected, Photon will pay you the higher of the amount awarded and US$10,000. The award is final and binding, except (1) for judicial review expressly permitted by law or (2) if the award includes injunctive relief against a party, in which case that party may seek judicial review of the injunctive relief in a court of competent jurisdiction not bound by the arbitrator’s application or conclusions of law. Judgment on the award may be entered in any court having jurisdiction.

7. 21.8.No Class Actions.  YOU AND PHOTON AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS OR PRESIDE OVER ANY FORM OF REPRESENTATIVE OR CLASS PROCEEDING.

8. 21.9.Modifications to this Arbitration Provision.  If Photon makes any substantive change to this arbitration provision, you may reject the change by sending written notice within 30 days of the change to Photon’s address for Notice of Arbitration, in which case your account will be immediately terminated and this arbitration provision, as in effect immediately before the changes you rejected, will survive.

Enforceability.  If Section 21.8 (No Class Actions) or the entirety of this Section 21 is found unenforceable, or if Photon receives an Opt-Out Notice from you, then the entirety of this Section 21 will be null and void and the exclusive jurisdiction and venue described in Section 21.2 (Exceptions) will govern any action arising out of or related to this Agreement.