Services Agreement

Last Modified: 08/06/2026

This Ethena Services Agreement (“Agreement”) is entered into by and between Ethena, Inc., a Delaware corporation (“Ethena”) and the entity accessing any Services, as defined below (“Customer”). The Agreement sets forth the terms and conditions that govern use of the Services under this Agreement.

The “Effective Date” of this Agreement is the earlier of the (a) Customer’s initial access to or use of any Service (as defined below) or (b) the effective date of the first ordering document (e.g., Order Form) that incorporates this Agreement. Capitalized terms used in this Agreement that are not defined inline are defined in the Definitions.

By accepting this Agreement through an Ordering Document that incorporates this Agreement, or by otherwise indicating acceptance of this Agreement, Customer agrees to be bound by all terms, conditions, and notices contained or referenced in this Agreement. If Customer is entering into this Agreement on behalf of a company or other legal entity, Customer represents that it has the authority to bind such entity to the terms and conditions of this Agreement. If Customer does not have such authority, or if Customer does not agree to this Agreement, Customer may not use the Services.

1. Definitions

“Admin User” means an employee, contractor or consultant of Customer or its Affiliate who may access and administer the Services but who is not necessarily an End User.
“Affiliate” means a legal entity that controls, is controlled by, or is under common control with a party, where “control” is defined as owning more than 50% of the voting shares of such entity.
“Agreement” means this Master Services Agreement, the DPA, any Exhibits, and all Order Forms.
“AI Feature” means any feature of the Services that uses artificial intelligence, machine learning, or similar technology and is made available to Customer within the Services.
“Authorized User” means an Admin User, End User, or any other individual authorized by Customer to access, receive, complete, administer, or use the Services.
“Confidential Information” means any business or technical information disclosed by one party to the other party, including Customer Data, provided that it is identified as confidential at the time of disclosure or that under the circumstances, a person exercising reasonable business judgment would understand it to be confidential or proprietary.
“Content” means training, templates, and other materials, in any format, made available by Ethena in connection with the Services, including SCORM packages and LMS-delivered materials, and excluding Customer Data, Inputs, and Customer owned Outputs.
“Customer Data” means data, materials, or information that Customer or its Authorized Users submit to, import into, sync with, or otherwise make available to the Services, including through third-party services, or Customer-provided policies, reports, submissions, attestations, case materials, and Outputs owned by Customer under Section 6(a).
“Documentation” means any documentation provided by Ethena to Customer in connection with the Services.
“End User” means any employee, contractor, consultant, director, officer, agent, or other individual who is authorized by Customer to access, receive, complete, or use the non-administrative portions of the Services.
“Ethena Technology” means the Services, Content, Documentation, software, models, algorithms, prompts, workflows, templates, know-how, analytics, user interfaces, APIs, integrations, configurations, tools, and technology used by Ethena to provide the Services, excluding Customer Data, Inputs, and Outputs to the extent based on Customer Data or Customer’s use of the Services.
“Feedback” means comments, questions, suggestions, evaluations, or any other feedback relating to any Ethena product or service.
“Input” means Customer Data submitted to or otherwise processed by an AI Feature by or on behalf of Customer.
“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction.
“Order Form” means an ordering document, online order, statement of work, or similar document executed by both parties that references or incorporates this Agreement and sets forth the Services purchased by Customer, applicable fees, Subscription Term, and any other applicable commercial terms.
“Output” means materials generated by an AI Feature based on an Input.
“Prohibited Sensitive Information” means payment card data subject to Payment Card Industry Data Security Standards, protected health information subject to Health Insurance Portability and Accountability Act, Social Security numbers, passport numbers, driver’s license numbers, financial account numbers, biometric identifiers, authentication credentials, or other highly sensitive data that is not expressly supported by the applicable Service or authorized in an Order Form or the DPA.
“Reports” means reports, dashboards, analytics, completion records, and other outputs generated by the Services from Customer Data and made available to Customer through the Services.
“Services” means the Ethena products and services, including any AI Features, made available to Customer under this Agreement and as further provided under an Order Form, including, as applicable, support, and related professional services.
“Subscription Term” means the period of time that Customer may use and access the Services as set forth in the applicable Order Form.

2. Services

Services. Subject to the terms of this Agreement, the Documentation and the applicable Order Form (if any), Ethena agrees to provide the Services, including, as applicable, the Content and applicable Documentation, to Customer’s End Users, solely for Customer’s own business purposes. Use of and access to the Services is permitted only by Authorized Users. Customer will upload information regarding End Users, and Customer is responsible for keeping this list up to date. The Services may be accessed, delivered, or completed through the Ethena platform, SCORM packages, third-party systems, integrations, or other delivery methods supported by the Services.
Cooperation and Assistance. Customer will cooperate with Ethena in good faith and provide to Ethena the information and personnel that Ethena reasonably requests and requires to provide the Services. Customer, at its option, may utilize certain third-party software and services with the Services and is responsible for acquiring and maintaining all such third-party software and services required to access, use, or integrate with the Services, including all costs related to the foregoing.
Restrictions. Customer will not allow anyone other than Authorized Users to access or use the Services from Customer’s accounts. Customer will not and will ensure that its Authorized Users do not: (i) attempt to interfere with or disrupt the Services (or any related systems or networks) or use the Services other than directly for Customer’s benefit; (ii) copy, modify or distribute any portion of the Services; (iii) rent, lease, or resell the Services; (iv) transfer any of its rights hereunder; (v) reverse-engineer or access the Services in order to build a competitive product, service, or AI model; or (vi) use the Services or AI Features to generate, promote, disseminate, or facilitate content that violates applicable law, infringes or misappropriates third-party rights, or encourages discrimination, harassment, bullying, retaliation, or other unlawful conduct. The foregoing does not restrict good-faith use of the Services to report, document, investigate, respond to, or train on such conduct.
Compliance with Applicable Laws. Each party will comply with applicable laws in performing its obligations under this Agreement. Customer is responsible for determining whether its use of the Services meets Customer’s legal, compliance, business, and training requirements. Customer is responsible for any changes to the Services, Content, Customer Data, or configurations made at Customer’s request or by Customer through the Services.
API Keys; Passwords. If Customer is given API keys or passwords to access the Services on Ethena’s systems, Customer will require that all Authorized Users keep API keys, user ID and password information strictly confidential and not share such information, including with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. If Customer is accessing the Services using credentials provided by a third party (e.g., Google), then Customer will comply with all applicable terms and conditions of such third party regarding provisioning and use of such credentials. Customer will be responsible for any and all actions taken using Customer’s accounts and passwords. For any Authorized User that is no longer an Admin User or End User of Customer, Customer will promptly delete such user ID and otherwise terminate such Authorized User’s access to the Services.
Configured Content and Customer Configurations. Customer may configure portions of the Services, including Content, assignments, workflows, permissions, integrations, data sources, and AI Features (“Configured Content and Customer Configurations”). Customer is responsible for Customer Data, Inputs, and other materials Customer provides or uses to configure the Services. Ethena may use those materials to provide and support the Services as permitted under this Agreement and the DPA.
AI Features. The Services may include AI Features. Ethena will not, and will not authorize any third-party AI provider to, use Customer Data, including Inputs or Outputs, to train, fine-tune, improve, or develop any AI or machine learning model, except with Customer’s separate written authorization. Ethena may use third-party AI providers and process Customer Data through AI Features to provide support and the Services and as permitted under this Agreement and the Data Privacy Addendum.

3. Data

Customer Data. Customer represents that it has all rights and authority necessary to provide Customer Data to Ethena and to authorize Ethena to access, process, and use Customer Data to provide and support the Services as permitted under this Agreement and the DPA. Ethena will process and maintain Customer Data that constitutes Personal Data consistent with the Data Privacy Addendum located at https://www.goethena.com/legal-privacy/data-privacy-addendum/ on the Effective Date and hereby incorporated by reference or such other Data Privacy Addendum entered into by the parties (the “DPA”).
Aggregated Anonymous Data. Notwithstanding anything to the contrary herein, Customer acknowledges and agrees that Ethena may collect, generate, use, and maintain data about Customer’s use of the Services in an aggregate, anonymized form that can in no way be linked to any specific Customer or Authorized User (“Aggregated Anonymous Data”) for any lawful purpose, including to operate, improve, and support the Services and otherwise for any business purpose during and after the term of this Agreement, including without limitation to generate industry benchmark or best practice guidance, recommendations or similar reports for distribution to and consumption by Customer and other Ethena customers. This Section 3(b) does not give Ethena the right to identify any Customer or Authorized User as the source of any Aggregated Anonymous Data. Ethena will not, directly or through its service providers, attempt to identify or re-identify any individual, Customer, or Authorized User from Aggregated Anonymous Data.
Prohibited Sensitive Information. Customer will not submit Prohibited Sensitive Information to the Services unless expressly authorized in an Order Form (if any) or the DPA. Customer acknowledges that Ethena is not a Business Associate or subcontractor under HIPAA or a payment card processor, and that the Services are not designed for HIPAA-regulated protected health information or PCI DSS-regulated payment card data. Prohibited Sensitive Information does not include workplace compliance data, policy questions, attestations, reports, cases, hotline reports, disclosures, or related information submitted through the Services in accordance with this Agreement and the DPA.
Information Security. Ethena agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of any Services or Customer Data, as further described in the DPA with respect to Personal Data. Subject to the foregoing, Ethena will have no responsibility for errors in transmission, unauthorized third-party access, or other causes beyond Ethena’s reasonable control.
Reports. Customer may access Reports containing Customer Data through the Services. Customer is responsible for configuring access permissions for Reports and other Customer Data available through the Services.
Storage of Customer Data. Ethena will retain Customer Data during the applicable Subscription Term as reasonably necessary to provide the Services, subject to this Agreement, the Documentation, Customer’s configuration of the Services, the DPA, and applicable law. Ethena is not responsible for retaining Customer Data after expiration or termination of the applicable Subscription Term except as expressly set forth in this Agreement or the DPA.

4. Target Availability and Support

Target Availability. Ethena will use commercially reasonable efforts to make each Service available with an uptime of 99.9% of each calendar month (“Target Availability”).
Exclusions. The calculation of uptime will not include unavailability to the extent due to: (a) use of the Service by Customer in a manner not authorized in this Agreement or the applicable Documentation; (b) general Internet problems, force majeure events or other factors outside of Ethena's reasonable control; (c) Customer's equipment, software, network connections or other infrastructure, including Customer’s HRIS, LMS, SSO provider, or SCORM player or environment; (d) third party systems, acts or omissions, including third-party AI providers; or (e) Scheduled Maintenance or reasonable emergency maintenance. “Scheduled Maintenance” means Ethena's scheduled routine maintenance of the Services for which Ethena notifies Customer at least twenty-four (24) hours in advance. Scheduled Maintenance will not exceed eight (8) hours per month. Ethena typically performs Scheduled Maintenance once per month.
Sole Remedy for Failure to Meet Target Availability. If there is a verified failure for the Services to meet Target Availability in two (2) consecutive months, Customer may terminate the affected Subscription Term by written notice within thirty (30) days after the second such month, and Ethena will refund prepaid fees for the terminated portion of the applicable Subscription Term. This termination and refund right is Customer's sole and exclusive remedy, and Ethena's sole and exclusive liability, for Ethena's failure to meet the Target Availability.
Maintenance. Ethena will make available to Customer all generally available updates and bug fixes to the Services and use commercially reasonable efforts to perform Scheduled Maintenance during off-peak hours.
Support. Ethena is available to receive Services support inquiries via email ([email protected]). For technical inquiries on Customer’s use of the Services, Ethena’s support hours are 9:00 a.m. to 5:00 p.m. Eastern Time Monday through Friday (excluding standard U.S. holidays).

5. Fees; Expenses; Taxes

Fees. Customer will pay to Ethena the fees in accordance with the terms set forth in the applicable Order Form(s) and this Section 5.
Invoices; Payment. Except as expressly set forth in this Agreement, all fees are non-refundable. Customer will reimburse Ethena for all reasonable costs and expenses incident to the collection of overdue amounts hereunder, including reasonable attorneys’ fees. If Customer disputes any Fees, it must provide written notice to Ethena of such dispute within ten (10) days after the date of the invoice.
Credit Card Payments. This Section 5(c) applies only if Customer uses a credit card, debit card or other payment card (“Credit Card”) as its payment method.
Payment Via Credit Card. If Customer is eligible to purchase the Services via Credit Card, Customer represents and warrants to Ethena that it is authorized to use the Credit Card. Customer agrees to provide accurate and complete account information, and agrees to promptly update its account information with any changes (for example, a change in billing address or credit card expiration date) that may occur. If any payment due via Credit Card from Customer under this Agreement becomes past due, Ethena may charge Customer a late payment charge equal to the lesser of (a) one and one-half percent (1.5%) per month, compounded monthly, or (b) the maximum rate permitted under applicable law on the past due balance. Customer will reimburse Ethena for all reasonable costs and expenses related to the collection of overdue amounts hereunder, including but not limited to reasonable attorneys’ fees.
Stripe Processing. Payment processing services are provided by Stripe, Inc. and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By providing Credit Card information and agreeing to purchase the Services via Credit Card, Customer agrees to be bound by the Stripe Services Agreement, which may be modified by Stripe from time to time. As a condition of Ethena’s enabling payment processing services through Stripe, Customer agrees to provide Stripe and, if necessary, Ethena, accurate and complete information about Customer and its business, and Customer authorizes Ethena to share it and transaction information relating to Customer’s use of the payment processing services provided by Stripe.
Recurring Billing Authorization. By providing Credit Card information and agreeing to purchase any Services via Credit Card, Customer hereby authorizes Ethena (or its designee) to automatically charge Customer’s Credit Card (i) on the same date as the commencement of the Subscription Term, and on each annual anniversary thereof during the Subscription Term (or the closest prior date, if there are fewer days in the applicable month), for the subscription Fees due for that annual period in accordance with the applicable Order, and (ii) on the same date of each calendar month (or the closest prior date, if there are fewer days in a particular month), for any overage or usage-based Fees accrued during the prior month, if any, in accordance with the applicable Order. Customer acknowledges and agrees that (a) the amount billed and charged on each annual billing date will reflect the subscription Fees set forth in the applicable Order for that period, and (b) the amount billed and charged each month may vary depending on Customer’s use of the Services and may include overage Fees for the prior month.
Invalid Payment. If a payment is not successfully settled due to expiration of a Credit Card, insufficient funds, or otherwise, Customer remains responsible for any amounts not remitted to Ethena and Ethena may, in its sole discretion, either (i) invoice Customer directly for the deficient amount, (ii) continue billing the Credit Card once it has been updated by Customer (if applicable) or (iii) terminate this Agreement.
Termination of Recurring Billing. In addition to any termination rights set forth in this Agreement, Customer may terminate the Subscription Term by sending Ethena notice in accordance with Section 10 (Term and Termination) or, if permitted by Ethena, by terminating via the “Settings” page on the Dashboard, with termination effective at the end of the current Subscription Term.
Payment of Outstanding Fees. Upon any termination or expiration of the Subscription Term, Ethena will charge Customer’s Credit Card (or invoice Customer directly) for any outstanding fees for Customer’s use of the Services during the Subscription Term, after which Ethena will not charge Customer’s Credit Card for any additional fees.
Taxes. Customer agrees to pay all taxes which Ethena is obligated by law to collect from its customers in connection with the Services.

6. Proprietary Rights

Customer owns and retains all Intellectual Property Rights in Customer Data, Inputs, Customer’s name, logo, and trademarks. As between Ethena and Customer, Customer also owns Outputs generated specifically for Customer through the Services to the extent based on Customer Data or Inputs. For clarity, Outputs do not include Ethena Technology, Aggregated Anonymous Data, or other Ethena materials; do not transfer ownership of any third-party materials submitted by Customer; and may not be unique to Customer.
Ethena owns and retains all Intellectual Property Rights to the Services, including AI Features, Content, Configured Content and Customer Configurations, Documentation, Ethena Technology, Aggregated Anonymous Data, and Ethena’s name, logo, and trademarks, including all improvements or modifications therein, excluding Customer Data, Inputs, and Outputs owned by Customer under Section 6(a).
Feedback. Customer may, from time to time, provide Ethena with Feedback. Customer grants Ethena a non-exclusive, perpetual, irrevocable, royalty-free license to use all Feedback for any purpose. Feedback does not include Customer Data or Customer Confidential Information.
Publicity. Customer hereby grants Ethena a limited revocable license to use Customer’s name and logo solely for the purpose of identifying Customer as a user of the Services and attributing any Feedback provided by Customer, in accordance with Customer’s logo and usage guidelines. Customer may revoke this license grant at any time upon written notice to Ethena.

7. Confidentiality

Use and Nondisclosure. A receiving party will not use the disclosing party’s Confidential Information except as necessary under this Agreement and will not disclose Confidential Information to any third party except: (a) to those of its employees, contractors, Affiliates, and service providers who have a business need to know such Confidential Information; provided that each such employee, contractor, Affiliate, and service provider is bound to confidentiality restrictions at least as restrictive as the terms set forth in this Agreement or (b) as further described in the Data Privacy Addendum. Each receiving party will protect the disclosing party’s Confidential Information from unauthorized use and disclosure using efforts equivalent to the efforts that the receiving party uses with respect to its own confidential information and in no event less than a reasonable standard of care. The provisions of this Section 7(a) will remain in effect during the Term and for a period of five (5) years after the expiration or termination thereof, except with regard to trade secrets of the disclosing party, which will be held in confidence for as long as such information remains a trade secret.
Exclusions.The obligations and restrictions set forth in Section 7(a) will not apply to any information that: (i) is or becomes generally known to the public through no fault of or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure; (iii) is independently developed by the receiving party without access to the disclosing party’s Confidential Information; or (iv) the receiving party rightfully obtains from a third party who has the right to disclose such information without breach of any confidentiality obligation to the disclosing party.
Permitted Disclosures. The provisions of this Section 7 will not restrict either party from disclosing the other party’s Confidential Information: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that to the extent legally permitted, the party required to make such a disclosure gives reasonable notice to the other party to enable it to contest such order or requirement or limit the scope of such request; (ii) on a confidential basis to its legal or professional financial advisors; or (iii) as required under applicable securities regulations or other applicable law, regulation, stock exchange rule, subpoena, court order, or governmental request.
Injunctive Relief.The receiving party acknowledges that disclosure of Confidential Information could cause substantial harm for which damages alone may not be a sufficient remedy, and therefore that upon any such disclosure by the receiving party, the disclosing party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law.

8. Warranty

Limited Warranty.Ethena warrants, for Customer’s benefit only, that each Service will operate in substantial conformity with the applicable Documentation. Ethena’s sole liability and Customer’s sole and exclusive remedy for breach of this warranty will be either, at Ethena’s option, use commercially reasonable efforts to correct the non-conformity at no additional charge to Customer, or terminate the applicable Subscription Term and refund prepaid fees for the terminated portion of the applicable Subscription Term. This warranty will not apply unless Customer makes a claim within thirty (30) days after first noticing the non-conformity, or if the error was caused by misuse, unauthorized modifications, third-party hardware, software or services, or to use provided on a no-charge, trial or evaluation basis.
Disclaimer. Except for the limited warranty in Section 8(a), Ethena makes no other representations or warranties of any kind, whether express, implied, (either in fact or by operation of law), or statutory as to any matter whatsoever, including implied warranties of merchantability, title, fitness for a particular purpose, noninfringement, accuracy, completeness, or error-free operation. Customer agrees that Ethena does not provide legal advice, engage in the practice of law, or make decisions on Customer’s behalf. Customer is solely responsible for determining whether its use of the Services meets Customer’s legal, business, and compliance requirements and for reviewing Outputs before relying on them.

9. Term and Termination

Term.This Agreement will commence on the Effective Date and continue for the period specified in the Order Form (if any) (the “Term”), unless terminated earlier as provided in this Agreement. Unless Customer terminates the Agreement for cause as stated in Section 10(b), any prepaid fees paid by Customer will not be refunded, but Customer will receive the Service until the end of the Term that Customer paid for.
Termination for Cause. Either party may terminate this Agreement upon written notice if the other party breaches any material terms of this Agreement and fails to correct the breach within thirty (30) days following written notice from the non-breaching party specifying the breach. If Customer terminates due to Ethena’s uncured material breach, Ethena will refund any prepaid fees for the unused portion of the terminated Services. If Ethena terminates due to Customer’s uncured material breach, Customer will pay any unpaid fees for the remainder of the applicable Subscription Term.
Suspension of Services. In addition to any other rights or remedies, Ethena may suspend access to the applicable Services (and any related services): (i) upon written notice and until such amounts are paid in full, if Customer’s account is thirty (30) days or more overdue; (ii) upon written notice, if Customer materially breaches this Agreement, or (iii) upon reasonable prior written notice (or immediately if Ethena reasonably determines that delay would create imminent risk to the security or integrity of the Services or any third party), if Customer’s or any Authorized User’s use of the Services creates a security risk or violates applicable law. Ethena will use commercially reasonable efforts to limit any suspension to the affected portion of the Services where practicable. Such a suspension of Service will not relieve Customer from its obligations to pay all undisputed amounts due under this Agreement.
Rights and Obligations Upon Expiration or Termination.Upon expiration or termination of this Agreement, Customer’s and Authorized Users’ right to access and use the Services will immediately terminate and Customer will stop using the Services and Content except as expressly permitted in writing. Upon Customer’s written request made before termination or within thirty (30) days after expiration or termination, Ethena will deliver a then-current export of the Customer Data to Customer or make Customer Data available for export in a commercially reasonable format, unless prohibited by law or security requirements and subject to Customer’s payment of all undisputed amounts due. After the export period, Ethena will delete Customer Data within thirty (30) days, subject to the DPA, applicable law, Ethena’s standard backup and archival practices, and legal, accounting, tax, security, and dispute-resolution obligations.
Survival. The rights and obligations of Ethena and Customer contained in Sections 2(c) (Restrictions), 2(d) (Compliance with Applicable Laws), 2(g) (AI Features), 3(b) (Aggregated Anonymous Data), 5 (Fees; Expenses; Taxes), 6 (Proprietary Rights), 7 (Confidentiality), 9(d) (Rights and Obligations Upon Expiration or Termination), 9(e) (Survival), 10 (Indemnification), 11 (Limitation of Liability), and 12 (General), and any provisions that by its nature should survive expiration or termination, will survive any expiration or termination of this Agreement.

10. Indemnification

Indemnification by Ethena. Ethena will defend Customer, its officers, directors and employees, from and against any suit or action brought by a third party against Customer: (i) alleging that the Services, as provided by Ethena and when used by Customer pursuant to this Agreement, infringes any Intellectual Property Right of a third party (the “IP Indemnity”); or (ii) resulting from unauthorized disclosure and misuse of Customer Data directly resulting from Ethena’s breach of its obligations under Section 3(a) (Customer Data) or Section 3(d) (Information Security) (the “Data Indemnity”). Ethena shall indemnify and hold harmless Customer from and against any damages and costs awarded against Customer or agreed in settlement by Ethena (including reasonable attorneys’ fees) resulting from such claim, provided that: (x) Customer provides Ethena with prompt written notice of such claim; (y) Customer provides reasonable cooperation to Ethena, at Ethena’s expense, in the defense and settlement of such claim; and (z) Ethena has sole authority to defend or settle such claim, provided that it may not settle any claim in a manner that imposes any material liability upon Customer or requires Customer to admit wrongdoing.
Injunctions. If Customer’s use of the Services is, or in Ethena’s opinion is likely to be, enjoined due to the type of claim in the IP Indemnity specified in Section 10(a)(i), then Ethena may at its sole option and expense: (i) replace or modify the Services to make them non-infringing and of equivalent functionality; (ii) procure for Customer the right to continue using the Services under the terms of this Agreement; or (iii) if Ethena is unable to accomplish either (i) or (ii) despite using its commercially reasonable efforts, terminate Customer’s rights and Ethena’s obligation under this Agreement with respect to such Services and refund to Customer a pro-rata portion of the fees paid for the remaining portion of the Term during which Customer would have had access to the Services.
Exclusions. Notwithstanding the terms of Section 10(a), Ethena will have no liability for any claim of any kind to the extent that it results from: (i) the combination, operation, or use of the Services with equipment, devices, data, content, instructions, or software not supplied by Ethena, if the claim would not have occurred but for such combination, operation, or use; (ii) Customer Data, Inputs, or other materials provided by or on behalf of Customer; (iii) Customer’s modification, approval, distribution, publication, or use of an Output; or (iv) Customer’s or an Authorized User’s use of the Services other than in accordance with this Agreement.
Sole Remedy. The foregoing states Ethena’s and its licensors’ sole liability and Customer’s sole and exclusive remedy with respect to any alleged or actual infringement or misappropriation of intellectual property rights by the Services.
Indemnification by Customer. Customer will defend, indemnify and hold harmless Ethena, its officers, directors and employees, from and against any action or suit brought against Ethena by a third party based on a claim that (i) Customer Data, Inputs, or other materials provided by or on behalf of Customer infringe or violate the rights of a third party, including Customer's failure to obtain any required rights, consents, or permissions in connection with such materials; (ii) Customer's use of Outputs outside the scope of this Agreement or the applicable Order Form; (iii) Customer's breach of applicable law in connection with Customer's use of the Services; or (iv) claims brought by Customer's Authorized Users arising from Customer's use of the Services. Customer will pay damages and costs awarded against Ethena or agreed in settlement by Customer, including reasonable attorneys' fees, resulting from such claim, provided that (x) Ethena gives prompt written notice of such claim; (y) Ethena provides reasonable cooperation to Customer, at Customer's expense, in the defense and settlement of such claim; and (z) Customer has sole authority to defend or settle such claim, provided that it may not settle any claim in a manner that imposes material liability on Ethena or requires Ethena to admit wrongdoing.

11. Limitation of Liability

Exclusion of Damages. To the fullest extent permitted by law, except for Excluded Claims (as defined below in Section 12(c) and for which there will be no cap on liability), neither Customer nor Ethena, and its Affiliates and suppliers, will be liable under this Agreement for (i) indirect, special, incidental, consequential, exemplary, or punitive damages; or (ii) loss of use, data, business, revenues, or profits (in each case whether direct or indirect), even if the party knew or should have known that such damages were possible, even if a remedy fails of its essential purpose, and regardless of the type of action or theory of liability.
Total Liability. To the fullest extent permitted by law, except for Excluded Claims (for which there shall be no cap on liability) or Special Claims (which are subject to the Enhanced Liability Cap set forth in Section 12(d)), neither party’s aggregate liability under this Agreement will exceed the amount paid or payable by Customer to Ethena during the twelve months prior to the event giving rise to liability.
Excluded Claims.“Excluded Claims” means: (i) any intentional misconduct or gross negligence by either party; (ii) any amounts payable to third parties pursuant to Ethena’s IP Indemnity obligations under Section 10(a)(i); or (iii) any amounts payable to third parties pursuant to Customer’s indemnification obligations under Section 10(e) (Indemnification by Customer).
Special Claims.“Special Claims” means (i) any breach by Ethena of Section 3(a) (Customer Data), Section 3(d) (Information Security), or Section 7 (Confidentiality) resulting in unauthorized disclosure and misuse of Customer Data; or (ii) any amounts payable to third parties pursuant to Ethena’s Data Indemnity obligations under Section 10(a)(ii). For Special Claims, Ethena’s total maximum aggregate liability shall not to exceed three times (3x) the amount paid by Customer to Ethena during the twelve months prior to the event giving rise to liability (the “Enhanced Liability Cap”).

12. General

Informal Dispute Resolution. In the event of any dispute, claim, or disagreement arising from or relating to this Agreement (“Dispute”), the parties will first use good faith efforts to resolve the Dispute within thirty (30) days of written notice. If the parties are unable to reach a resolution within the 30-day period, either party may pursue remedies under Section 12(b) (Governing Law).
Governing Law. This Agreement will be governed by the laws of the State of New York, without regard to its conflict of law provisions. Any legal action or proceeding relating to this Agreement will be brought exclusively in the state or federal courts located in New York, NY. Ethena and Customer hereby agree to submit to the jurisdiction of, and agree that venue is proper in, those courts in any such legal action or proceeding.
Subcontractors. Ethena may use subcontractors to provide the Services, provided that Ethena remains responsible for their performance as required under this Agreement. To the extent a subcontractor Processes Personal Data, the Data Privacy Addendum’s Subprocessor terms apply.
Order of Precedence. In the event of a conflict between the Master Services Agreement and an Order Form (if any), the Order Form will control solely with respect to the Services set forth in that Order Form. In the event of a conflict between the DPA and this Master Services Agreement or an Order Form, the DPA will control with respect to the processing of Personal Data unless the Order Form expressly states that it modifies the DPA.
Waiver. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the party granting the waiver.
Notices. Notices will be sent to the addresses set forth in the Order Form (if any). In the event there is no Order Form, Customer will provide written notice to Ethena at 33 Nassau Ave., Second Floor, Brooklyn, NY 11222 or at Ethena’s email address below, and Ethena will provide written notice to Customer at the mailing address or email address on record in Customer’s account. The notices will be deemed to have been given upon: (i) the date actually delivered in person; (ii) the day after the date sent by overnight courier; (iii) three (3) days following the date such notice was mailed by first class mail; or (iv) the date sent by email to Ethena at [email protected] or Customer at the Customer’s email address on record in Customer’s account or as specified in the Order Form (if any).
Severability. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect.
Force Majeure. Neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money owed) on account of events beyond the reasonable control of such party.
Relationship Between the Parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties.
Assignment. Neither party may assign its rights or obligations under this Agreement without the other party’s prior written consent. Notwithstanding the foregoing, either party may assign its rights and obligations under this Agreement without the other party’s consent to an Affiliate as part of a reorganization, or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or business to which this Agreement relates, provided that (a) the assignee is not primarily engaged in developing, marketing, or selling products or services that directly compete with the other party’s core products or services as of the date of assignment; and (b) the assignee is bound by this Agreement. Other than the foregoing, any attempt by either party to transfer its rights or obligations under this Agreement will be void.
Entire Agreement. This Agreement (including any Exhibits hereto) constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement.
Modifications to this Agreement. Ethena may modify this Agreement at any time by posting a revised version of the Agreement on Ethena’s website at https://www.goethena.com/legal/services-agreement/. The revised Agreement will be effective as of the date it is posted unless otherwise stated, and Customer is responsible for reviewing this Agreement periodically for changes. Customer’s continued use of the Services after a revised version of this Agreement is posted constitutes Customer’s acceptance of the revised Agreement. Except as this Agreement (including this Section 13(l)) otherwise allows, this Agreement may not be modified except in writing signed by a duly authorized representative of each party.
No Third-Party Beneficiaries. This Agreement is intended for the sole and exclusive benefit of the signatories and is not intended to benefit any third party. Only the parties to this Agreement may enforce it.

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