Master Services Agreement

This Master Services Agreement ("MSA") is entered into by and between Anysphere, Inc. ("Anysphere") and the customer placing an order for, or otherwise accessing, the Service ("Customer", "you" or "your") (each a "Party" and together the "Parties"). This MSA is effective as of the date that is the earlier of: (a) Customer's initial access to the Service through any online provisioning, registration, or order process, or (b) the effective date of the first Order Form referencing this Agreement ("Effective Date"). If you are entering into this MSA on behalf of an entity, you represent that you have the legal authority to bind that entity.

1. Definitions.

   1. "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with, Customer, where "control" is the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of Customer.

   2. "Anysphere Intellectual Property" means the Service and all components thereof (including interfaces, graphics, design, code, software, and data), along with all related improvements, modifications, intellectual property, platform elements, machine learning models, algorithms, source code, and training datasets, and any derivative works thereof. For the avoidance of doubt, Anysphere Intellectual Property does not include Customer Data.

   3. "Authorized Users" means Customer's and its Affiliates' employees, consultants, contractors, and agents who have been authorized by Customer to access and use the Service under the rights granted to Customer pursuant to this MSA, and for whom access to the Service has been purchased hereunder.

   4. "Beta Services" means a product, service or functionality provided by Anysphere that may be made available to Customer for testing at Customer's option at reduced rates or at no additional charge.

   5. "Customer Data" means any data, text, and any other works of authorship or other works, including source code that Customer or its Authorized Users input, submit, upload, or otherwise post to or transmit to the Service, and any Suggestions that are made available to the Customer through the Service. Customer Data constitutes Customer Confidential Information.

   6. "Documentation" means Anysphere's user manuals, guides, and technical documentation relating to the Service that Anysphere makes available to Customer.

   7. "Order Form" means the Anysphere ordering document governed by this MSA that is entered into by and between Anysphere and Customer and specifies the Service or any components thereof procured by Customer.

   8. "Service" means Anysphere's software, platform, APIs, Documentation, and related tools, including our website at www.cursor.com, and all related software made available by Anysphere to build, deploy, host, and manage software projects.

2. Access and Use.

   1. Provision of Access. Anysphere's Service offers a suite of coding tools driven by machine learning to help developers write code more easily and efficiently and can provide suggested code, outputs or other functions. Subject to Customer's compliance with this MSA, Anysphere grants Customer and its Affiliates a revocable, worldwide, non-exclusive, non-transferable, non-sublicensable license to access and use the Service during the Term solely for Customer's internal business operations by Authorized Users in accordance with the terms herein. Anysphere may in its sole discretion modify, enhance or otherwise change the Service, provided that such changes do not materially limit or adversely affect the Service provided to Customer.

   2. Use Restrictions. Unless expressly permitted elsewhere in this MSA or any applicable Order Form, Customer and its Authorized Users shall not, directly or indirectly: (i) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to or attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Service or any software, Documentation or data related to the Service (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); (ii) copy, modify, translate, or create derivative works of the Service, in whole or in part; (iii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Service; (iv) remove any product identification, proprietary, copyright or other notices from the Service; (v) use the Service or any Suggestions to develop or train a language model or any other machine learning model that is competitive with the Service, or engage in model extraction or theft attacks; (vi) use or permit the use of any tools to probe, scan or attempt to penetrate the Service; (vii) create or provide to any third party the results of any benchmark tests or other evaluation of the Service without Anysphere's prior written consent; (viii) use unauthorized third-party programs to harvest, scrape, or extract data from the Service; (ix) use the Service in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable laws or regulations; (x) send or otherwise provide to Anysphere data or information considered to be sensitive or otherwise subject to specific protections under applicable laws beyond any requirements that apply to "personal information" or "personal data" generally, such as for illustrative purposes, information that is regulated by the Health Information Portability and Accountability Act, the Payment Card Industry Data Security Standard, the Gramm-Leach-Bliley Act, and other U.S. federal, state or foreign laws applying specific security standards; or (xi) knowingly permit any third party to do any of the foregoing. Customer will use reasonable efforts to prevent any unauthorized use of the Service, and will promptly notify Anysphere of any unauthorized use that comes to Customer's attention and provide all reasonable cooperation to prevent and terminate such use.

   3. Beta Services. From time to time, Anysphere may make Beta Services available to Customer at significantly reduced rates or at no charge. Beta Services shall be clearly designated as beta, pilot, limited release, non-production, early access, evaluation or by a similar description. Customer may choose to use or not use such Beta Services in Customer's sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not fully supported and may be subject to additional terms that may be presented to Customer. Beta Services are provided on an "as-is" and "as available" basis without any warranty, support, maintenance, or storage of any kind. Anysphere may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Beta Services may be considered Confidential Information of Anysphere, if so denoted or communicated by Anysphere to Customer.

   4. Add-On Features. Customer may purchase additional products, services or features that are not individually essential for the functioning of the Service, but that Anysphere makes available to Customers for enhanced capabilities on a supplemental basis ("Add-Ons"). Add-Ons may be specified in an initial Order Form, added during the Term via direct Customer implementation through modules or configurations made available through the Service, or added via supplemental Order Form(s). Add-Ons, whether included in the initial Order Form or added later, are deemed part of the Service and governed by the terms of this Agreement, except as otherwise specified below. Add-On features are priced in accordance with the terms set forth in the Order Form or as indicated in the Service.

3. Intellectual Property Rights and Data.

   1. Ownership. Anysphere retains all right, title, and interest in the Service and Anysphere Intellectual Property, all improvements, enhancements or modifications thereto, and all intellectual property rights associated with the foregoing. Except for the license granted herein, Customer may not use the Anysphere Intellectual Property without Anysphere's express authorization. No implied licenses are granted under this MSA, and each Party reserves all rights not expressly granted to the other Party in this MSA.

   2. Suggestions. Customer may use the Service to generate code, outputs, or other functions based on the input provided by Customer (collectively, "Suggestions"). Suggestions are considered Customer Data and Anysphere hereby assigns to Customer all of our right, title, and interest in and to any Suggestions. Notwithstanding the foregoing, Customer acknowledges that Suggestions are generated automatically by machine learning technology and may be similar to or the same as Suggestions provided to other customers, and no rights to any Suggestions generated, provided, or returned by the Service for or to other customers are granted to Customer under this MSA. Further, Customer acknowledges that there are numerous limitations that apply with respect to Suggestions provided by large language and other AI models (each an "AI Model") due to the fact that it is automatically generated, including that: (i) Suggestions may contain errors or misleading information; (ii) AI Models are based on predefined rules and algorithms that lack the ability to think creatively and come up with new ideas and can result in repetitive or formulaic content; (iii) AI Models can struggle with understanding the nuances of language, including slang, idioms, and cultural references, which can result in output that is out of context or does not make sense; (iv) AI Models can perpetuate biases that are present in the data used to train them, which can result in output that is discriminatory or offensive; (v) AI Models can struggle with complex tasks that require reasoning, judgment and decision-making; and (vi) AI Models require large amounts of data to train and generate content, and the data used to train AI Models may be of poor quality or biased, which will negatively impact the accuracy and quality of the generated output. Customer agrees that it is responsible for evaluating and bearing all risks associated with the use of any content, including any reliance on the accuracy, completeness, or usefulness of Suggestions. ANY SUGGESTIONS ARE PROVIDED "AS IS" WITHOUT ANY WARRANTIES OF ANY KIND.

   3. Usage Data. Anysphere may collect, generate, and derive performance, analytical, or usage data relating to Customer's access to or use of the Service ("Usage Data"). Usage Data will not include any Customer Data. Anysphere will only use Usage Data to provide the Service to you, to monitor the performance and stability of the Service, and to prevent or address technical issues with the Service. Anysphere may also use anonymized and aggregated Usage Data, that cannot be tied back to Customer or its Authorized Users by Anysphere or any third party, to improve its products and services. For the avoidance of doubt, anonymized and aggregated Usage Data excludes Customer code when Privacy Mode is enabled.

   4. Customer Data. Customer retains all right, title and interest it has in and to Customer Data, all improvements, enhancements or modifications thereto, and all intellectual property rights associated with the foregoing. By submitting Customer Data to the Service, Customer grants Anysphere a nonexclusive, worldwide, royalty-free, sublicensable license to use, copy, reproduce, and distribute Customer Data for the sole purpose of providing the Service to Customer. Customers may opt-in to allow Anysphere to use Customer Data to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and other Anysphere offerings. However, by entering into this MSA, Customer will enable "Privacy Mode" by default, which is described in greater detail on our Security Page. In Privacy Mode: (i) Customer Data is transmitted only to generate Suggestions in real-time and is deleted once Suggestions are generated; code data is not stored in plaintext at our servers or by our subprocessors; and (ii) Customer Data is not used for any other purpose, including the training of language or other AI models. CUSTOMER'S PRIVACY MODE SETTING CANNOT BE DISABLED BY AUTHORIZED USERS.

4. Customer Responsibilities.

   1. General. Customer is responsible and liable for all uses of the Service and Suggestions, including all acts and omissions of Authorized Users, including without limitation ensuring an Authorized User's login is not shared by multiple people, maintaining the security of account login credentials, and notifying Anysphere immediately upon becoming aware of any unauthorized use of, or access to, the Services. Anysphere will not be liable for any loss or damage from Customer's failure to comply with these terms. Customer shall make all Authorized Users aware of this MSA's provisions as applicable to such Authorized Users' use of the Service, and shall cause Authorized Users to comply with such provisions.

   2. Customer Data. Customer is solely responsible for the accuracy, completeness, quality and legality of the Customer Data (including complying with all applicable laws, rules or regulations). By submitting Customer Data to the Service, Customer represents and warrants that: (i) Customer has all necessary rights to the Customer Data for use with the Service; and (ii) that submitting Customer Data to the Service does not violate any rights (including privacy rights, publicity rights, copyrights, contract rights, or other intellectual property rights) of any third party. Anysphere is not responsible for verifying the accuracy or completeness of any Customer Data and is also not responsible for any inaccuracies or other errors in Suggestions resulting from any errors in the Customer Data. Additionally, Customer acknowledges and agrees that due to the nature of generative AI models, Suggestions may not be unique, and Suggestions that the Service generates based on materials submitted by third parties ("Third-Party Suggestions") may be similar or identical to Suggestions that the Service generates based on your Customer Data. Customer acknowledges and agrees that Third-Party Suggestionsare not your Customer Data and that you have no right, title, or interest in or to any Third-Party Suggestions.

   3. Third Party Services. Customer acknowledges and agrees that the Service operates on or with or using application programming interfaces ("APIs") and/or other services operated or provided by third parties ("Third Party Services"), including without limitation extensions and plug-in applications which Authorized Users may install themselves. Anysphere will clearly indicate such content or features as Third Party Services via prominent notices or descriptions in the Service. If you elect, in your sole discretion, to access or use a Third Party Service, your access and use of the Third Party Service is subject to the terms and conditions provided by that service. Anysphere does not make any representations or warranties with respect to Third Party Services or any third party providers.

   4. Auto-Code Execution. THE SERVICE MAY INCLUDE A FEATURE THAT AUTOMATICALLY EXECUTES CODE SUGGESTIONS WITHOUT MANUAL REVIEW OR CONFIRMATION, AND WILL BE CLEARLY LABELED ACCORDINGLY. BY ENABLING THIS FEATURE, YOU EXPRESSLY ACKNOWLEDGE THAT YOU ARE ACCEPTING ALL RISKS ASSOCIATED WITH AUTOMATIC EXECUTION OF CODE SUGGESTIONS, INCLUDING BUT NOT LIMITED TO: EXECUTING BUGGY, UNTESTED, OR INCOMPLETE CODE; CAUSING SYSTEM OUTAGES; INTRODUCING SECURITY VULNERABILITIES; LOSING DATA; OR COMPLETELY DISRUPTING YOUR SERVICES OR BUSINESS OPERATIONS. YOU UNDERSTAND AND AGREE THAT CODE SUGGESTIONS PROVIDED BY ANYSPHERE ARE NOT GUARANTEED TO BE ERROR-FREE OR SUITABLE FOR YOUR SPECIFIC USE CASE. AUTOMATIC CODE EXECUTION IS PROVIDED "AS IS," WITHOUT ANY WARRANTIES WHATSOEVER. ANYSPHERE DISCLAIMS ALL LIABILITY FOR ANY DAMAGE, LOSS, OR CONSEQUENCES RESULTING FROM YOUR USE OF THIS FEATURE. IF YOU CHOOSE TO USE THIS FEATURE, YOU ARE SOLELY RESPONSIBLE FOR THE RESULTS, INCLUDING ENSURING THAT APPROPRIATE TESTING, MONITORING, AND SAFEGUARDS ARE IN PLACE.

5. Fees and Payment.

   1. Fees. Customer shall pay Anysphere the fees ("Fees") as set forth at Anysphere's Pricing Page, unless otherwise agreed in an Order Form, without offset or deduction. Customer shall make all payments hereunder in US dollars, Net 30 following the receipt of an applicable invoice from Anysphere, unless otherwise indicated in the Order Form. If Customer fails to make any payment when due, without limiting Anysphere's other rights and remedies: (i) Anysphere may charge interest on any amount that is more than thirty (30) days past due at the rate of 1.5% per month or, if lower, the highest rate permitted under applicable law; and (ii) if such failure continues for sixty (60) days or more, Anysphere may suspend Customer's and its Authorized Users' access to any portion or all of the Service until such amounts are paid in full.

   2. Taxes. All Fees and other amounts payable by Customer under this MSA are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Anysphere's income.

6. Confidential Information; Feedback.

   1. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive information that is designated or otherwise identified as "confidential" or a similar marking, or that a reasonable person would understand to be confidential based upon the circumstances of disclosure (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (i) in the public domain without breach of confidentiality by the receiving Party; (ii) known to the receiving Party at the time of disclosure; (iii) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (iv) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees or consultants who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder and who are bound by confidentiality obligations no less restrictive than those contained herein. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order, unless such notice is prohibited by law. On the expiration or termination of the MSA, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed.

   2. Feedback. If you choose to provide input and suggestions regarding existing functionalities, problems with or proposed modifications or improvements to the Service ("Feedback"), you grant Anysphere an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right and license to use the Feedback in any manner and for any lawful purpose, including to improve the Service and create other products and services, provided that the Feedback does not include Customer Confidential Information. We will have no obligation to provide you with attribution for any Feedback you provide to us.

7. Warranties and Disclaimers.

   1. Mutual. Each Party represents and warrants that: (i) it is duly organized, validly existing, and in good standing under the laws of the state of its organization; (ii) it has full power and authority to enter into this MSA, to carry out its obligations under this MSA, and to grant the rights granted to the other Party herein; (iii) the execution of this MSA by such party, and the performance by such party of its obligations and duties hereunder do not and will not violate any other agreement to which such party is a party or by which it is otherwise bound; and (iv) it and its performance hereunder will comply with all applicable laws and regulations.

   2. Anysphere. Anysphere warrants that: (i) it will not knowingly include in the Service any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data; (ii) the Service does not infringe or misappropriate the intellectual property rights of any third party; (iii) the Service does not incorporate any software licensed under a copyleft or viral open-source license, including but not limited to the GNU Affero General Public License, GNU General Public License, or similar licenses, in a manner that would impose obligations on Customer to disclose, distribute, or license any of Customer's software or intellectual property; and (iv) the Service will materially perform in accordance with the Documentation.

   3. Disclaimers. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7(B), THE SERVICE AND ANYSPHERE INTELLECTUAL PROPERTY IS PROVIDED "AS IS" AND ANYSPHERE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. ANYSPHERE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN THIS SECTION 7, ANYSPHERE MAKES NO WARRANTY OF ANY KIND THAT THE ANYSPHERE SERVICE OR INTELLECTUAL PROPERTY, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ADDITIONALLY, ANYSPHERE MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE ACCURACY OF ANY SUGGESTIONS. YOU SHOULD NOT RELY ON ANY SUGGESTIONS WITHOUT INDEPENDENTLY CONFIRMING THEIR ACCURACY. SUGGESTIONS MAY CONTAIN MATERIAL INACCURACIES EVEN IF THEY APPEAR ACCURATE BECAUSE OF THEIR LEVEL OF DETAIL OR SPECIFICITY. YOU ACKNOWLEDGE THAT THE SERVICE AND ANY SUGGESTIONS MAY NOT REFLECT CORRECT, CURRENT, OR COMPLETE INFORMATION.

8. Indemnification.

   1. Anysphere Indemnification. Anysphere shall indemnify, defend, and hold harmless Customer, its Affiliates, and each of their officers, directors, employees, and agents from and against any and all claims, lawsuits, losses, damages, liabilities, and costs (including reasonable attorneys' fees) ("Losses") arising out of any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Service or any Suggestion (subject to the limitations set forth in Section 8(b)) infringes or misappropriates such third party's intellectual property. If a claim is made or appears possible that the Service infringes or misappropriates a third party's intellectual property, Customer agrees to permit Anysphere, at Anysphere's sole discretion, to: (i) modify or replace the Service, or component or part thereof, to make it non-infringing; or (ii) obtain the right for Customer to continue use. If either Party determines that neither alternative is reasonably available, either Party may terminate this MSA, in its entirety or with respect to the affected component or part, effective immediately on written notice, in which case Anysphere shall provide Customer with a pro rated refund of any prepaid fees for the remaining unused portion of the terminated Service. This Section 8(a) will not apply with respect to portions or components of the Service: (A) not created by Anysphere, including but not limited to Customer Data or Third-Party Services; (B) that are modified by anyone other than Anysphere where the alleged infringement relates to such modification; (C) combined with other products, processes or materials not approved in writing by Anysphere where the alleged infringement relates to such combination; (D) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; or (E) where Customer's use thereof is not in accordance with this MSA and Documentation.

   2. Limitation on Indemnity for Suggestions. Anysphere shall have no indemnification obligations under Section 8(a) with respect to Suggestions unless all of the following conditions are met: (i) Customer has not disabled, evaded, disrupted, or interfered with any content filters, restrictions, or other safety systems that are part of the Service; and (ii) Customer has not modified, used, or distributed the Suggestion in a manner that it knows, or should know, is likely to infringe or misappropriate any proprietary right of a third party; and (iii) Customer has lawful rights over all Customer Data used to generate the Suggestion that is the subject of the claim.

   3. Customer Indemnification. Customer shall indemnify, defend, and hold harmless Anysphere and its officers, directors, employees, and agents from and against any Losses arising out of any Third-Party Claim that Customer Data infringes or misappropriates such third party's intellectual property or other proprietary rights, or use of the Service in a manner not authorized by this MSA.

   4. Indemnification Procedures. The indemnified Party will: (i) provide the indemnifying Party with prompt written notice of any Third-Party Claim that would give rise to liability under this Agreement, provided that failure to give timely notice will not relieve the indemnifying Party of its obligations except to the extent the delay materially prejudices the indemnifying Party's ability to defend the claim; (ii) make no admission of liability, agreement, or compromise in relation to the relevant Third-Party Claim without the prior written consent of the indemnifying Party (such consent, with respect to making an agreement or compromise only, not to be unreasonably conditioned, withheld, or delayed); (iii) use reasonable efforts to mitigate its loss. The indemnified Party will give control of the defense to the indemnifying Party. However, the indemnified Party will have the right to approve controlling counsel, appoint its own non-controlling counsel at its own expense, provide reasonable assistance at the indemnifying Party's expense, and give prior written consent to any settlement, whether or not such settlement requires the indemnified Party to admit liability, pay money, or take (or refrain from taking) any action. Neither Party will disclose terms of any settlement unless required to do so by judicial or other government order, and will not publicize, or permit any third party to publicize, any settlement, without the other Party's prior written consent.

   5. Sole Remedy. THIS SECTION 8 SETS FORTH THE PARTIES' SOLE REMEDIES, LIABILITY, AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICE OR CUSTOMER DATA INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

9. Limitations of Liability.

   1. Indirect Liabilities. IN NO EVENT WILL A PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS MSA UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (I) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (II) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (III) LOSS OF GOODWILL OR REPUTATION; (IV) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (v) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.

   2. Direct Liability. IN NO EVENT WILL A PARTY'S LIABILITY ARISING OUT OF OR RELATED TO THIS MSA UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO ANYSPHERE UNDER THIS MSA IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR ONE HUNDRED THOUSAND U.S. DOLLARS ($100,000), WHICHEVER IS LESS.

   3. Exclusions. THE FOREGOING LIMITATIONS IN THIS SECTION 9 SHALL NOT LIMIT A PARTY'S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8, BREACH OF CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 6, OR DAMAGES ARISING FROM A DATA BREACH CAUSED BY ANYSPHERE'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. HOWEVER, THE TOTAL LIABILITY OF EITHER PARTY UNDER THIS SUBSECTION (C) SHALL NOT EXCEED ONE MILLION U.S. DOLLARS (US $1,000,000) IN THE AGGREGATE, EXCEPT WHERE SUCH LIMITATION IS PROHIBITED BY LAW.

10. Term and Termination.

    1. Term. The Term of this MSA will commence on the Effective Date, and will remain in effect as set forth in the Order Form unless earlier terminated in accordance with this MSA.

    2. Termination. In addition to any other express termination right set forth in this MSA or an Order Form: (i) either Party may terminate this MSA, effective on written notice to the other Party, if the other Party materially breaches this MSA, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or (ii) either Party may terminate this MSA, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. If Customer terminates this MSA pursuant to this Section 10(b), Anysphere will provide Customer with a refund of any prepaid fees for the remaining unused portion of the terminated Service.

    3. Effect of Expiration or Termination. Upon expiration or earlier termination of this MSA, Customer shall immediately discontinue use of the Service. Customer acknowledges and agrees that Anysphere shall make available Customer Data that is reasonably accessible to Anysphere for a period of thirty (30) days following termination for download, and Customer Data shall be deleted thirty-one (31) days following termination, provided that Anysphere may retain information solely as necessary to comply with its legal obligations. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund except as otherwise noted in this MSA.

    4. Survival. This Section 10(d) and Sections 2(b), 3, 6-9, 10(c), 11, and 13-14 survive any termination or expiration of this MSA.

11. Data Privacy and Security. Please read the Anysphere Privacy Policy (the "Privacy Policy"), carefully for information relating to our collection, use, storage, and disclosure of your personal information. The Anysphere Privacy Policy is incorporated by this reference into, and made a part of, this MSA. If Customer submits personal data or personally identifiable information to the Service, the Anysphere Data Processing Addendum ("DPA") applies and is incorporated into this MSA by reference. Additionally, Anysphere will use commercially reasonable efforts to maintain appropriate safeguards for the protection of Customer Data, and to help ensure the availability of Customer Data following any significant interruption to the Service. Anysphere's Security practices are described at https://www.cursor.com/security. However, you acknowledge and agree that despite the use of commercially reasonable efforts to safeguard Customer Data, transmissions made on or through the internet may not always be secure, and unauthorized third parties may breach the security of Anysphere's or its agents' information systems where Customer Data is stored. Accordingly, you will be responsible for routinely backing up Customer Data, and Anysphere has no obligation or liability for any loss, alteration, destruction, damage, corruption, or recovery of Customer Data.

12. Trademark License. If expressly approved by Customer in the Order Form, Customer agrees to allow Anysphere to refer to Customer as a customer of Anysphere and/or user of the Service and Anysphere may use Customer's name, trademark and logo ("Customer Marks") on sales and marketing collateral in any form or media including on its website and social media channels. Anysphere shall not acquire any rights, title, or interests in or to the Customer Marks and all use of the Customer Marks by Anysphere will be for the benefit of Customer.

13. Dispute Resolution.

    1. Disputes. In the event of a dispute, claim or controversy relating to this MSA ("Dispute"), the Parties will first attempt in good faith to informally resolve the matter. The Party raising the Dispute must notify the other party ("Dispute Notice"), who will have thirty (30) days from the date of delivery of the Dispute Notice to propose a time for the Parties to meet with appropriately leveled executives to attempt to resolve the Dispute. If the Parties have not resolved the dispute within forty-five (45) days of delivery of the Dispute Notice, either Party may seek to resolve the dispute through arbitration as stated in Section 13(b).

    2. Arbitration. Any Dispute will be determined by final, binding arbitration. Judgment on any award issued through the applicable arbitration process in this Section 13(b) may be entered in any court having jurisdiction. EACH PARTY AGREES THEY ARE WAIVING THE RIGHT TO A TRIAL BY JURY, AND THE RIGHT TO JOIN AND PARTICIPATE IN A CLASS ACTION, TO THE FULLEST EXTENT PERMITTED UNDER THE LAW IN CONNECTION WITH THESE TERMS. Disputes will be determined by a sole arbitrator in San Francisco, California, pursuant to the Comprehensive Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc.

    3. Equitable Relief. This Section 13 does not limit either party from seeking equitable relief.

14. Miscellaneous.

    1. Entire Agreement. This MSA, together with the Order Form and any incorporated exhibits or documents, constitutes the entire agreement between the Parties and supersedes all prior agreements, understandings, and representations, whether written or oral. In the event of any conflict, the order of precedence is: (i) Order Form; (ii) DPA; (iii) MSA; (iv) any other incorporated documents.

    2. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the physical and/or email addresses set forth on the first page of the Order Form (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), email, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this MSA, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.

    3. Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this MSA, for any failure or delay in performing its obligations under this MSA (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party's reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

    4. Amendments and Modifications. Anysphere may update this MSA at any time by providing you with reasonable notice, including by posting to our website. If, in our sole judgment, an update materially impacts your rights or obligations, we will provide at least thirty (30) days' notice before the update goes into effect, unless the update is necessary for us to comply with applicable law, in which case we will provide you with as much notice as reasonably possible. Any other updates will be effective on the date we post the updated MSA terms. Except for an update to comply with applicable law, updates to this MSA will not apply to Disputes between you and Anysphere arising prior to the update. No other amendment to or modification of this MSA is effective unless it is in writing and signed by both Parties. Your continued use of, or access to, the Service after an update goes into effect will constitute acceptance of the update. If you do not agree with an update, you may stop using the Service or terminate this MSA.

    5. Severability. If any provision of this MSA is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this MSA or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this MSA so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

    6. Governing Law; Submission to Jurisdiction. This MSA is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this MSA or the licenses granted hereunder that is not required to be resolved via arbitration pursuant to Section 13 (Dispute Resolution) will be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the City and County of San Francisco, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

    7. Assignment. Neither Party may assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed, except that either Party may assign this MSA without consent of the other Party to its successor in interest pursuant to a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which this MSA relate, provided that such successor in interest is not a direct competitor of the non-assigning Party. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This MSA is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

    8. Export Regulation. The Service utilizes software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Neither Party shall directly or indirectly, export, re-export, or release the Service or the underlying software or technology to, or make the Service or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Each Party shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Service or the underlying software or technology available outside the US.

    9. US Government Rights. Each of the Documentation and the software components that constitute the Service is a "commercial item" as that term is defined at 48 C.F.R. § 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the US Government or any contractor thereof, Customer only receives those rights with respect to the Service and Documentation as are granted to all other end users, in accordance with (i) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (ii) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.

    10. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Customer, Section 2(b), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

    11. Waiver. Failure to exercise or delay in exercising any rights or remedies arising from this MSA does not and will not be construed as a waiver; and no single or partial exercise of any right or remedy will preclude future exercise of such right or remedy.