TERMS OF SERVICE

 

1. Provision of SaaS Services

1.1 SaaS Services. Subject to the terms and conditions of this Agreement, Optelos will make available to Customer the SaaS Services on a non-exclusive, limited, revocable, non-transferable and non-sublicenseable basis only: (a) during the relevant Subscription Term, (b) by and for the designated business entity or unit specified in the Order (“Designated Business Unit”) internally for the Designated Business Unit’s own internal purposes and, if expressly set forth in an Order, for the provision of services to the Designated Business Unit’s end clients (“Clients”, and such services, “Client Services”), (c) by the authorized number of Users, (d) subject to any applicable Usage Allowances, and (e) in accordance with the additional SaaS Services rights and limitations specified in the Order.

1.2 Client Services. With respect to Client Services, Customer will not allow or authorize any Clients to exercise any of Customer’s SaaS Services rights hereunder and will not assign any Client as a User. Rather, Customer may provide the results of the SaaS Services to its Clients in the form of “Work Packages” that Clients may access on the Platform in a view-only mode. Customer is responsible for the acts and omissions of its Clients accessing the Platform as if such acts and omissions were those of Customer.

1.3 Restrictions. Customer will not directly or indirectly, nor authorize any of its Representatives or any third party to, do any of the following: (a) copy, modify or create derivative works of the SaaS Services and/or Deliverables, (b) publish, sublicense, sell, market or distribute the SaaS Services and/or Deliverables; (c) reverse engineer, decompile, disassemble or otherwise attempt to gain access to the source code form of the SaaS Services and/or Deliverables; (d) use the SaaS Services, Deliverables and/or associated documentation in violation of any applicable law, including export laws; (e) remove any proprietary notices from the SaaS Services, Deliverables, documentation or any other Optelos materials furnished or made available hereunder; (f) use or access the SaaS Services and/or Deliverables in order to (i) build a competitive product or service, or (ii) copy any features, functions or graphics of the SaaS Services and/or Deliverables; (g) make the SaaS Services available to anyone other than Users (except for the limited right of Clients to view Work Packages); (h) sell, resell, rent or lease the SaaS Services and/or Deliverables, including using on a service bureau or time sharing basis (except for the limited right to use the SaaS Services to perform services for Clients); (i) interfere with or disrupt the integrity or performance of the SaaS Services or any data contained therein; (j) attempt to gain unauthorized access to the Platform or its related data, systems or networks; (k) use the SaaS Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third party privacy rights; (l) publish or disclose to third parties any evaluation of the SaaS Services without Optelos’ prior written consent; (m) publish or disclose to third parties any data or information on Customer’s results from using the SaaS Services (except for the limited right of Clients to view Work Packages), without Optelos’ prior written consent; (n) perform vulnerability, load or any other test of the Platform without Optelos’ prior written consent. Customer is responsible for compliance by each User with the terms of this Agreement.

1.4 Affiliates. Customer may not allow its Affiliates to use the SaaS Services and Professional Services made available to Customer hereunder. Customer Affiliates may order SaaS Services and Professional Services from Optelos under this Agreement (a) pursuant to an Order form executed by Customer and Optelos, in which case Customer will be responsible for the acts and omissions of such Affiliates as if such acts and omissions were those of Customer including such Affiliate’s compliance with the terms and conditions of this Agreement and payment obligations, or (b) pursuant to an Order form executed by such Affiliate and Optelos, in which case such Affiliate will be responsible for its own acts and omissions including such Affiliate’s compliance with the terms and conditions of this Agreement and payment obligations.

2. Professional Services and Deliverables; Support. Optelos will provide the Professional Services set forth in the applicable Statement of Work including setup and implementation of the SaaS Services and developing and delivering the Deliverables pursuant to the specifications set forth in the applicable SOW. Professional Services fees associated with SOWs signed concurrently with a particular Order also may be listed in the Order itself or in the SOW. All SOWs will incorporate and be subject to the terms of this Agreement. Customer acknowledges that the provision of Professional Services by Optelos is dependent on Customer providing reasonable access to relevant resources, data and providing timely decisions and input in connection with those Professional Services. Optelos will provide support and maintenance services for the SaaS Services for the duration of the Subscription Term, at no additional charge.

3. Payment

3.1 Fees and Expenses. The fees for the SaaS Services are set forth in the Order for such SaaS Services, and are due and payable in advance. Optelos will invoice Customer for the SaaS Services on an annual basis or will provide means for Customer to pay quarterly or monthly if the payments are set up as an ongoing ACH transaction, or as otherwise specified in the Order. In any event, payment is due and payable from Customer by the first day of the billing period for use of the SaaS Services. The fees for any Professional Services are set forth in the applicable Statement of Work and/or Order, and are due and payable in advance, except as set forth in the Order and/or SOW. Customer will also reimburse Optelos for any expenses as specified in the Order, SOW or otherwise authorized by Customer in writing (including via email). Except as set forth in this Section 3.1, and unless otherwise specified in the Order and/or SOW, for amounts invoiced by Optelos, all payments by Customer to Optelos under this Agreement are due and payable within 15 calendar days of the invoice date. All money amounts set forth herein are expressed in, and all payments to be made hereunder will be made in, United States dollars, unless otherwise specified by Optelos. All payments are non-refundable and all fees are non-cancellable.

3.2 Additional Orders; Pricing. During a Subscription Term, Customer may upgrade its selected SaaS Services tier and/or add optional capabilities to Customer’s existing SaaS Services tier by the parties’ mutual execution of another Order; the fees for such Order will be prorated for the Subscription Term based on the effective date of the Order and will be paid in accordance with Section 3.1 above. Customer may not downgrade its selected SaaS Services tier or reduce/terminate any optional capabilities previously Ordered until the Renewal Term, if any. Optelos may increase fees on at least 30 days prior written notice, which notice may be posted in Customer’s account, emailed to Customer’s account representative for this Agreement or otherwise notified in writing to Customer; provided, however, any increased fees for SaaS Services will not apply until the next Renewal Term and increased Professional Services fees will not apply to any current SOW, unless such SOW expressly allows for fee increases.

3.3 Past Due Invoices. If any payment is not made when due, interest will begin to accrue and be payable at the lesser of the maximum rate permitted under applicable law or 1.5% per month, accrued from the date due until paid in full. In the event that Customer is delinquent in the payment of any amounts due Optelos, Optelos may suspend access to the SaaS Services until amounts due are paid. Such suspension will not constitute a termination of this Agreement nor will it relieve Customer of any of its obligations or liabilities under this Agreement.

3.4 Taxes. All fees are exclusive of any Taxes. Customer will pay to Optelos an amount equal to any Taxes arising from or relating to this Agreement including sales, service, use or value added taxes, which are paid by or are payable by Optelos. “Taxes” means any form of taxation, levy, duty, charge, contribution or impost of whatever nature and by whatever authority imposed (including any fine, penalty, surcharge or interest), excluding any taxes based solely on the net income of Optelos. If Customer is required under any applicable law or regulation, domestic or foreign, to withhold or deduct any portion of the payments due to Optelos, then the sum payable to Optelos will be increased by the amount necessary so that Optelos receives an amount equal to the sum it would have received had Customer made no withholdings or deductions.

4. Warranties; Disclaimer

4.1 General Warranty. Each party represents and warrants to the other that: (a) such party has the right, power and authority to enter into this Agreement and to fully perform all its obligations hereunder, and (b) the making of this Agreement does not violate any agreement existing between such party and any third party.

4.2 Deliverables and Professional Services. Optelos warrants that the Professional Services will be performed by Optelos in a workmanlike and professional manner by qualified personnel. Professional Services and Deliverables will be deemed accepted if Customer does not report any deficiencies in the Professional Services and Deliverables to Optelos within 10 days of the completion of the Professional Services or delivery of the Deliverables.

4.3 SaaS Services. Optelos warrants that the SaaS Services will at all times during the Subscription function properly without any material malfunction or defect and in conformity with its documentation. In the event of a breach of the warranty set forth in this Section 4.3, Optelos will, as Optelos’ exclusive obligation and Customer’s exclusive remedy, correct the SaaS Services at no additional charge pursuant to Optelos’ support and maintenance services.

4.4 User Responsibility. The SaaS Services or results generated by their use must only be used by professionals trained in the industry in which they are used. Cognitive tools such as the SaaS Services are not substitutes for independent professional judgment and testing of safety, accuracy, completeness and validity of results. Responsibility for accuracy and completeness of the data submitted rests solely with the user. Optelos will not be liable for results or actions suggested by results generated by the SaaS Services or the decisions made by users based on those suggestions. Users of the SaaS Services are responsible for establishing independent test and verification guidelines to test the reliability and accuracy of output of the SaaS Services, including any results and recommended actions.

4.5 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. OPTELOS DOES NOT WARRANT THAT THE SAAS SERVICES WILL MEET CUSTOMER’S NEEDS OR REQUIREMENTS OR THAT THE PROVISION OF THE SAAS SERVICES WILL BE UNINTERRUPTED OR THAT THE SAAS SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR ERROR-FREE.

5. Customer Data

5.1 Customer Data. Customer is solely responsible for collecting and providing Customer Data to Optelos for any SaaS Services and Professional Services, including all costs and liabilities associated with such Customer Data. Customer retains ownership of any Intellectual Property Rights that it holds in the Customer Data. When Customer or a User uploads, submits, stores, or sends Customer Data to Optelos in connection with the SaaS Services or Professional Services, Customer hereby grants Optelos (and those third parties Optelos works with) a worldwide non-exclusive license to use, host, store, reproduce, modify, create derivative works (such as those resulting from adaptations, configurations or other changes Optelos makes so that Customer Data is better utilized), communicate, perform, display and distribute such Customer Data solely for purposes of providing the SaaS Services and Professional Services to Customer including fulfilling any obligations hereunder in connection with developing Deliverables. Optelos does not and is not obligated to verify, authenticate, monitor or edit the Customer Data or any other information or data provided to Optelos for provision of the SaaS Services and Professional Services to Customer (including for use in the development of Deliverables for Customer) for completeness, integrity, quality, accuracy or otherwise. Customer will be responsible and liable for the completeness, integrity, quality and accuracy of Customer Data provided to Optelos (including for use in the development of Deliverables for Customer). Optelos does not guarantee or make any promises regarding the accuracy or completeness of the Customer Data. In addition to the foregoing, Customer hereby grants Optelos (and those third parties Optelos works with) a worldwide, non-exclusive perpetual license to use, reproduce, modify, and create derivative works of, communicate, perform, display and distribute non-identifiable and anonymized images (i.e. the specific location is not identifiable and the image cannot be associated with Customer) from Customer Data solely for Optelos training and demonstration purposes to third parties.

5.2 Anti-Virus. Customer will, and will ensure that its Users will, (a) deploy and maintain current up-to-date commercially available, and consistent with industry standards, anti-virus, anti-spam, anti-malware software on all information system components including personal computers, laptops, and servers, where applicable, used for the purpose of accessing and transmitting Customer Data to Optelos, (b) provide for regular scanning for viral infections and update virus signature files frequently, and (c) immediately inform Optelos if it becomes aware of the possibility of transmission of any such virus, spam or malware. Optelos will have the right at any time to suspend or terminate access to the SaaS Services if reasonably necessary to maintain the security of Optelos Platform and related systems against any program, routine, device or other feature, including a time bomb, virus, software lock, drop dead device, malicious logic, worm, Trojan horse or trap door, which is capable of deleting, disabling, deactivating, interfering with or otherwise harming software, hardware, data or other programs of Optelos or its other customers, or which is capable of providing unauthorized access or producing unauthorized modifications.

6. Intellectual Property

6.1 Customer Ownership. As between the parties and except for the limited express license granted to Optelos under this Agreement, Customer will retain ownership of all right, title and interest, including all related Intellectual Property Rights, in and to all Customer Data.

6.2 Optelos Ownership. As between the parties and except for the limited express license granted to Customer under this Agreement, Optelos will retain ownership of all right, title and interest, including all related Intellectual Property Rights, in and to the SaaS Services and the Professional Services.

6.3 Ownership of Deliverables. As between the parties, Optelos will retain ownership of all right, title and interest, including all related Intellectual Property Rights, in and to all Deliverables developed for Customer hereunder, excluding any Customer Data incorporated or contained therein. Further, Optelos will retain ownership of all right, title and interest, including all related Intellectual Property Rights, in and to all content, software, code, source code, programs, templates, work product, documentation, websites, patents, patent applications, ideas, inventions, copyrights, trademarks, trade secrets, techniques, procedures and Optelos Confidential Information that is pre-existing, acquired, developed or used by Optelos in the performance of an SOW or SaaS Services (“Optelos Materials”). Subject to the terms and conditions of this Agreement, Optelos hereby grants to Customer an exclusive right to use the Deliverables during the applicable Subscription Term pursuant to the same terms, conditions and scope governing the applicable SaaS Services provided to Customer hereunder. For clarity, the exclusive rights granted to Customer for such Deliverables are only applicable to the final instance of such Deliverables and does not preclude or prohibit Optelos from using the Optelos Materials or Classifiers used to create or incorporated in any such Deliverables in any manner or for any purpose it deems necessary including developing substantially similar deliverables for provision to other customers.

6.4 General Skills. Notwithstanding anything to the contrary in this Agreement, Optelos will not be prohibited or enjoined at any time by Customer from utilizing any “skills or knowledge of a general nature” acquired during the course of performing the SaaS Services or Professional Services under this Agreement. For purposes of this Agreement, “skills or knowledge of a general nature” will include, without limitation, information publicly known or that could reasonably have been acquired in similar work performed for another customer, but does not include Customer Confidential Information or Customer Data.

7. Term and Termination

7.1 Term of Agreement. This Agreement will begin on the Effective Date and will remain in force until there are no Orders, Subscription Terms or SOWs in effect for a period of 12 consecutive months, unless terminated earlier in accordance with the terms of this Agreement. If there are no Orders, Subscription Terms or SOWs in effect, then either party may terminate this Agreement upon 30 days prior written notice.

7.2 Subscription Term. The initial term of each Subscription Term (“Initial Subscription Term”) for the SaaS Services granted to Customer hereunder will begin on the effective date of the applicable Order (“Start Date”) and continue for the period of time set forth in the applicable Order, and will remain in force for the Subscription Term, unless terminated earlier in accordance with the terms of this Agreement. Except for the Subscription Term for a trial or proof of concept (together a “POC”), the Subscription Term will automatically renew without notice to Customer for the same period of time as the Initial Subscription Term (each a “Renewal Term”), unless either party gives the other party written notice of its intent not to renew such Subscription Term at least 60 days before the expiration of the then-current term. The Subscription Term for a POC is not renewable or extendable without the prior written express consent of Optelos. Unless otherwise set forth in the applicable Order, each Renewal Term will be subject to Optelos’ then-current policies and pricing.

7.3 Termination. Each party will have the right to terminate this Agreement (including all Orders and SOWs) if the other party breaches any term of this Agreement, an Order or SOW including non-payment, and fails to cure such breach within 30 days (10 days in the case of non-payment) after written notice thereof. Either party may terminate this Agreement (including all Orders and SOWs) immediately upon delivery of written notice if (a) the other party makes an assignment for the benefit of creditors, or (b) the other party becomes the object of the institution of voluntary or involuntary proceedings in bankruptcy or liquidation, or a receiver is appointed with respect to a substantial part of its assets.

7.4 Effect of Termination. The termination or expiration of this Agreement (including an Order or SOW) for any reason will not affect either party’s rights or obligations that expressly or by their nature continue and survive (including the payment terms and the provisions concerning ownership, confidentiality, limitation on liability, indemnity and the warranty disclaimers), and Customer will promptly pay to Optelos any and all unpaid amounts due under this Agreement. Upon the termination or expiration of this Agreement (including an Order or SOW), Customer will (a) within five days return or destroy, at Optelos’ direction, any and all Optelos Materials and Deliverables, and all copies thereof, cease using the SaaS Services and Deliverables, and (b) upon Optelos’ request certify in writing to Optelos that all actions required by the preceding clause (a) has been satisfied. Further, both parties will either return or destroy any and all Confidential Information of the other party, and all copies thereof, at the direction of the owning party and provide written proof of same upon the owning party’s reasonable request. Except as otherwise set forth in this Agreement, termination of this Agreement by either party will be a nonexclusive remedy for breach and will be without prejudice to any other right or remedy of such party at law or in equity.

7.5 Remedies. The parties agree that money damages are not a sufficient remedy for any breach or anticipated breach of Section 1 (Provision of SaaS Services), Section 6 (Intellectual Property) and Section 8 (Confidentiality) or any other provisions of this Agreement which may cause either party irreparable injury or may be inadequately compensable in monetary damages. Accordingly, each party is entitled to specific performance, injunctive or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of proving irreparable harm or posting bond and without waiving any other remedies at law or in equity which may be available in the event of any action to enforce such provisions.

8. Confidentiality

8.1 Confidential Information. During the term of this Agreement, each party will have access to certain Confidential Information of the other party. “Confidential Information” includes, without limitation, the terms and conditions of this Agreement, and any software, data, technical, business, financial, operational, customer, vendor or other information disclosed or provided by one party or any of its Representatives to the other party or any of its Representatives, whether in writing, orally, visually (or other non-tangible format) or any other means. SaaS Services and any documentation, release notes, collateral materials, operating instructions and information related to Platform performance provided by Optelos will be considered Optelos Confidential Information. Customer Data will be considered Customer Confidential Information. Confidential Information will not include information that (a) was or becomes available to the receiving party (“Recipient”) on a nonconfidential basis from a source other than the other party (“Discloser”) or its Representatives; provided that such source is not bound by any confidentiality agreement with, or other contractual, legal or fiduciary obligation of secrecy to Discloser; (b) at the time of disclosure or thereafter is or becomes available to and widely known by the public as to be reasonably regarded as public information, other than as a result of disclosure by Recipient or any of its Representatives in breach of this Agreement; (c) is developed by Recipient independently of any disclosure hereunder or reference to Discloser’s Confidential Information, as evidenced by Recipient’s records, and without violating any of Recipient’s obligations under this Agreement; or (d) is disclosed by Recipient with Discloser’s prior written express approval.

8.2 Restrictions on Use. Recipient will maintain all of Discloser’s Confidential Information in confidence and will protect such information with the same degree of care that Recipient exercises with its own Confidential Information, but in no event less than a reasonable degree of care. Recipient will not use Discloser’s Confidential Information except to carry out its rights and obligations under this Agreement. Recipient will not divulge Discloser’s Confidential Information or any information derived therefrom to any third party except to Representatives of Recipient, and will limit access to and use of any of Discloser’s Confidential Information to those Representatives of Recipient who have a need to use the information to exercise Recipient’s rights under or perform this Agreement, and who are subject to a contractual, professional or other obligation to keep such information confidential, with such obligation no less protective of Discloser than this Section 8. Each party will be responsible for violation of this Section 8 by its Representatives. If Recipient is legally required to disclose Discloser’s Confidential Information, Recipient will, as soon as reasonably practicable, provide Discloser with written notice of the applicable order or subpoena creating the obligation to enable Discloser to seek a protective order or other appropriate remedy, unless such notice is prohibited by applicable law. In addition, Recipient will exercise reasonable efforts, at Discloser’s expense, to obtain assurance that confidential treatment will be accorded to such Confidential Information and will make no disclosure in excess of that which is required. Each party may disclose information concerning this Agreement and the transactions contemplated hereby, including providing a copy of this Agreement, to any or all of the following: (a) potential acquirers, merger partners, investors, lenders, financing sources, and their personnel, attorneys, auditors and investment bankers, solely in connection with the due diligence review of such party by such persons and provided that such disclosures are made in confidence, and (b) the party’s outside accounting firm and outside legal counsel. Each party may also disclose this Agreement in connection with any litigation or legal action concerning this Agreement, to the extent such disclosure is required or recommended upon advice of counsel, and/or (c) pursuant to a registration statement, annual, quarterly or current report, proxy statement, or other filing with, and any exhibits thereto, filed with the Securities and Exchange Commission, securities exchange or quotation service, or any state securities commission, or any other associated documents or materials so filed or furnished. All of Discloser’s Confidential Information disclosed to Recipient, and all copies thereof, are and will remain the property of Discloser.

9. Indemnification

9.1 Optelos Obligations. Optelos will, at its own cost and expense, defend Customer and its Affiliates against any cause of action, suit or proceeding (each a “Claim”) made or brought against Customer or any of its Affiliates by a third party to the extent such Claim alleges that Customer’s permitted use of the SaaS Services and Deliverables infringes or misappropriates any copyright, trade secret or any patent issued in the U.S., Canada or the European Union of a third party and will indemnify Customer for any damages finally awarded against Customer, or agreed upon by Optelos in settlement, and incidental costs reasonably incurred by Customer in connection with the Claim. If a Claim under this Section 9.1 is brought or threatened, or Optelos believes is likely to occur, Optelos may, at its option, (a) procure for Customer the right to use the SaaS Services and Deliverables, or (b) replace the SaaS Services and Deliverables with non-infringing services and products that are functionally equivalent in all material respects, or (c) if options (a) and/or (b) above cannot be accomplished despite Optelos’ commercially reasonable efforts, then Optelos may terminate this Agreement with respect to such SaaS Services and Deliverables, and upon return or cessation of use of the SaaS Services and Deliverables, issue a pro-rata refund or credit to Customer for any prepaid unused fees corresponding to the remaining Subscription Term of the SaaS Services after the date of termination. Optelos will have no liability under this Agreement or otherwise to the extent a Claim is based upon (i) use of the SaaS Services and/or Deliverables in combination with software, hardware or technology that is not reasonably necessary to use the SaaS Services and/or Deliverables and not provided by or specified by Optelos, if infringement would have been avoided in the absence of the combination, (ii) modifications to the Deliverables not made by or for Optelos, if infringement would have been avoided by the absence of the modifications, (iii) Optelos’ use of any Customer Data or any other Customer-provided material in accordance with this Agreement; (iv) Customer’s use of the SaaS Services and/or Deliverables in violation of this Agreement; or (v) Optelos’ compliance with a Customer-provided specification or instruction.

9.2 Customer Obligations. Customer will, at its own cost and expense, defend Optelos and its Affiliates against any Claim made or brought against Optelos or any of its Affiliates by a third party, to the extent arising out of or attributable to (a) the provision of Customer Data to Optelos, (b) the use, storage, processing or display of Customer Data by the SaaS Services as authorized by Customer hereunder, (c) any industrial or compliance decision or action taken by Customer based on the SaaS Services and/or any Deliverables or results generated by their use, (d) infringement of third party Intellectual Property Rights by the Customer Data or any other materials provided by Customer hereunder, and Customer will indemnify Optelos for any damages finally awarded against Optelos, or agreed upon by Customer in settlement, and incidental costs reasonably incurred by Optelos in connection with the Claim.

9.3 Indemnity Process. The party seeking to be indemnified will give prompt written notice to the other party of the claim against which it seeks to be indemnified and will provide the indemnifying party, at the indemnifying party’s expense, with the assistance reasonably necessary for the defense and settlement of the claim. The failure by the indemnified party to timely furnish to the indemnifying party any notice required to be furnished under this Section 9 will not relieve the indemnifying party of its obligations under this Section 9, except to the extent such failure materially and adversely prejudices the ability of the indemnifying party to defend such matter. The indemnifying party will have sole control of the defense and settlement of any such claim. The indemnifying party will not be liable for any settlement of a claim effected without its prior express written consent (which consent will not be unreasonably withheld or delayed). The indemnifying party will not enter into any settlement of any claim that would constitute an admission of guilt or liability on the part of the indemnified party, without the indemnified party’s prior express written consent (which consent will not be unreasonably withheld or delayed. The indemnified party may engage counsel of its choice at its own expense.

10. Limitation of Liability

10.1 Exclusion of Damages. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.

10.2 Total Liability. EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9, TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE AGGREGATE LIABILITY OF OPTELOS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO SUCH LIABILITY OCCURRED. THE FOREGOING APPLIES NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.

11. Miscellaneous

11.1 Governing Law and Dispute Resolution. This Agreement and all disputes arising out of or relating thereto will be governed by the laws of the state of Texas, excluding rules as to choice and conflict of law. All disputes arising out of or in connection with this Agreement will be finally settled under the Commercial Arbitration Rules (“Rules”) of Arbitration of the American Arbitration Association (“AAA”) by one or more arbitrators appointed in accordance with the said Rules. The place of the arbitration will be Austin, Texas. Judgment upon any award(s) rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The parties waive any right to appeal the arbitral award, to the extent a right to appeal may be lawfully waived. Each party retains the right to seek judicial assistance: (a) to compel arbitration; (b) to obtain interim measures of protection before or pending arbitration, (c) to seek injunctive relief in the courts of any jurisdiction as may be necessary and appropriate to protect the unauthorized disclosure of its proprietary or confidential information, and (c) to enforce any decision of the arbitrator(s), including the final award. The arbitrator(s) will award to the prevailing party, if any, as determined by the arbitrator(s) its reasonable attorneys’ fees and costs, including the costs of the arbitration. The parties undertake to keep confidential all awards in their arbitration, together with all materials in the proceedings created for the purpose of the arbitration and all other documents produced by the other party in the proceedings not otherwise in the public domain, save and to the extent that disclosure may be required of a party by legal duty, to protect or pursue a legal right or to enforce or challenge an award in legal proceedings before a court or other judicial authority.

11.2 Assignment. This Agreement may not be assigned by a party without the prior written consent of the other party, provided, however, that either party may assign or transfer its rights and delegate its obligations under this Agreement, without consent, to an Affiliate or pursuant to a corporate reorganization, merger, acquisition or sale of all or substantially all of its assets or stock of that party to which this Agreement relates. Any attempted assignment or delegation in violation of the foregoing is void. This Agreement is binding upon the parties and their successors and permitted assigns.

11.3 Independent Contractor. The parties are independent contractors. Nothing contained herein or done pursuant to this Agreement will constitute a joint venture, partnership or agency for the other for any purpose or in any sense whatsoever and neither party will have the right to make any warranty or representation to such effect.

11.4 Press Release. Upon execution of this Agreement, Optelos may issue a press release announcing the Agreement and that Customer is a customer of Optelos.

11.5 Absence of Third-party Beneficiary Rights. No provision of this Agreement is intended nor will be interpreted to provide or create any third party beneficiary rights or any other rights of any kind in any third party, affiliate or subsidiary, and all provisions hereto will be personal solely between the parties hereto.

11.6 Force Majeure. Both parties will be excused from performance under this Agreement for any period to the extent that a party is prevented from performing any obligation, in whole or in part, as a result of causes beyond its reasonable control including acts of God, natural disasters, war or other hostilities, labor disputes, civil disturbances, governmental acts, orders or regulations, third party nonperformance, or failures or fluctuations in electrical power, heat, light, air conditioning or telecommunications equipment.

11.7 Notices. Unless otherwise provided herein, any notice, request, or other communication will be given in writing under this Agreement and will be deemed to have been given by either party to the other party (a) upon the date of receipt, if hand delivered, (b) two business days (five business days for international addresses) after deposit in the U.S. mail if mailed to the other party by registered or certified mail, properly addressed, postage prepaid, return receipt requested, (c) one business day (two-three business days for international addresses) after deposit with a national express courier for next business day delivery, or (d) upon the date of electronic confirmation of receipt of a facsimile or email transmission. Notices to (i) Optelos will be sent to Optelos’ primary address to the attention of: CEO, and (ii) Customer will be sent to Customer’s primary address and contact provided to Optelos on the Order, or at such other address as will be given by either party to the other in writing.

11.8 Compliance with Law. Customer represents and warrants that, to the best of Customer’s knowledge, the provisions of this Agreement, and the rights and obligations of the parties hereunder, are enforceable under the laws of the countries within which the SaaS Services and Deliverables will be used. Customer and Users will use the SaaS Services and Deliverables in compliance with the requirements of all applicable law. Without limiting the foregoing, Customer acknowledges that the SaaS Services, Deliverables and related technical data received from Optelos may be subject to U.S. export and import controls, and in using the SaaS Services, Deliverables and related technical data Customer will comply with all applicable laws, and agrees to commit no act which, directly or indirectly, would violate any United States law, regulation or order, including tax, export and foreign exchange laws, import controls, and export controls imposed by the U.S. Export Administration Act of 1979 as amended. Additionally, Customer agrees that the SaaS Services, Deliverables and related technical data are not to be used, acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor used for nuclear activities, chemical/biological weapons, or missile projects unless authorized by the U.S. Government.

11.9 Amendments. No addition to or change in the terms of this Agreement will be effective or binding on either of the parties unless reduced to writing and signed by a duly authorized representative of each party.

11.10 Waiver. An individual waiver of a breach of any provision of this Agreement requires the written express consent of the party whose rights are being waived and such waiver will not constitute a subsequent waiver of any other breach of that provision or any other provision, condition or requirement. The failure of either party to enforce at any time any of the provisions of this Agreement, or the failure to require at any time performance by the other party of any of the provisions of this Agreement, will in no way be construed to be a present or future waiver of such provisions, nor in any way affect the validity of either party to enforce each and every such provision thereafter.

11.11 Severability. If, for any reason, a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be invalid or unenforceable, such provision of the Agreement will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect. The parties agree to negotiate in good faith an enforceable substitute provision for any invalid or unenforceable provision that most nearly achieves the intent and economic effect of such provision.

11.12 U.S. Government Users. If Customer is an agency, department, or other entity of the United States Government (“U.S. Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the SaaS Services, Deliverables, manuals, or any technical specifications, or any related documentation of any kind, including technical data (“SaaS Services and documentation”), is restricted in accordance with Federal Acquisition Regulation (“FAR”) 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement (“DFARS”) 227.7202 for military agencies. The SaaS Services and documentation is commercial computer software and commercial computer software documentation. The use of the SaaS Services and documentation is further restricted in accordance with the terms of this Agreement, or any modification thereto.

11.13 English Language. This Agreement is in the English language only, which language will be controlling in all respects. No translation, if any, of this Agreement into any other language for convenience or to meet local requirements will be of any force or effect in the interpretation of this Agreement or in determination of the interests of either party hereto. Furthermore, all correspondence, notices, claims, suits and other communication between the parties hereto will be written or conducted in English. It is the express wish of the parties that this Agreement and/or any related documents have been drawn up in a language other than French. French translation: Il est de la volonté expresse des parties que le présent contrat et/ou tous les documents qui s’y rattachent soient rédigés dans une langue autre que le français.

11.14 Entire Agreement. This Agreement and its Orders, SOWs, and exhibits are incorporated herein and constitute the entire agreement of the parties with respect to the subject matter hereof. This Agreement supersedes all prior or contemporaneous negotiations, representations, promises, and agreements concerning the subject matter herein whether written or oral. The term “including” and/or “includes” and the like means “including without limitation”.

11.15 Headings and Captions; Construction. Section headings are used for convenience only and will in no way affect the construction or interpretation of this Agreement. This Agreement has been negotiated by the respective parties hereto and their attorneys and the language hereof will not be construed for or against either party.

11.16 Counterparts. This Agreement may be executed in counterparts and by facsimile or electronic signature, all of which taken together constitute a single agreement between the parties. Each signed counterpart, including a signed counterpart reproduced by reliable means (such as facsimile and electronic signature), will be considered as legally effective as an original signature.

11.17 Order of Precedence. In the event of conflict, the following order of precedence will apply unless the parties specify in the Order that a particular provision of the Order is expressly intended to supersede a particular provision of this Agreement: (a) the terms and conditions of this Agreement, (b) the Order, and (c) the SOW.

A.I. SUPPLEMENTAL TERMS

The follow AI Feature Terms and Conditions supplement and amend the Optelos Terms of Service or Master SaaS Agreement.

 

1. Customer may not use any Brain and the Output except in connection with Integrated Applications.

2. Customer may publish or disclose any results of benchmark tests run on the AI Feature Service, the Trained Brain, or the Deployed Brain.

3. The AI Feature Service, the Trained Brain, and the Deployed Brain are each a “commercial item” as that term is defined at 48 C.F.R. 2.101.

4. Customer will hold harmless, defend, and indemnify Optelos and its AI Partner, and their affiliates, officers, directors, members, shareholders, employees, agents, and successors (collectively, “Indemnified party”) against any and all losses, damages (including incidental and consequential damages), liabilities, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses (including attorneys’ fees, costs of investigation and defense, and costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers), which Optelos may incur, be exposed to, become responsible for, or pay out, relating to any claim of a third party arising out of or occurring in connection with any use of the AI Feature Service, the Trained Brain, or the Deployed Brain in violation of the Agreement. The AI Partner is a third party beneficiary of the Agreement with respect to the foregoing indemnity.

5. Customer will make available to Optelos all Customer Training Source Data and Object Tags (collectively “Inputs”) required by Optelos for the performance of the AI Feature Service. Customer hereby grants to Optelos (and its AI Partner) a worldwide, non-exclusive, royalty-free license to use the Customer Source Data during the Subscription Term in connection with the AI Feature Service.

6. Once Customer has provided the necessary Inputs, the AI Feature Service and/or Optelos’ personnel may configure and train a Brain template using the Inputs (the “Trained Brain”). Customer acknowledges that Optelos’ and the AI Feature Service’s ability to configure and train the Brain will be dependent on the quality and quantity of the Inputs provided by the Customer. Following development of the Trained Brain, Optelos will make the Trained Brain available for use via an API within the AI Feature Service for use in conjunction with the Integrated Application (the “Deployed Brain”).

7. Definitions:
a. “AI Feature Service” means Optelos’ third party proprietary hosted or on premise software tool that allows customers to: (a) recognize certain Objects within Source Data, (b) train a Brain template using Inputs; (c) access the Deployed Brain via API, including the presentation of images, and (d) export any Outputs as set forth herein.
b. “AI Partner” means the third party supplier of the AI Feature Service.
c. “Authorized User” means each of Customer’s employees and independent contractors who are provided access credentials by Customer or Optelos to access the AI Feature Service. The maximum number of Authorized Users authorized by Optelos to access the AI Feature Service is set forth in the applicable Order.
d. “Brain” means a data file containing a unique set of numerical inputs that drive application programs and that are: (a) identified by Optelos as a Brain and (b) trained to detect Objects using the AI Feature Service and Source Data.
e. “Integrated Application” means the Deployed Brain interacting with Optelos’ proprietary products, services or application as described in more detail in the applicable Order.
f. “Monthly Brain API Calls” means the total number of image presentations made to a Deployed Brain via the API for which a prediction is requested. API calls expire at end of each month and do not accumulate.
g. “Object” means any visible object, item or other physical trait that is the subject of an Object Tag.
h. “Object Tag” means any indicated area of interest on or around a visible object, item, or other physical trait identified by Customer.
i. “Object Tag Data” means any data generated by Object Tags identified by Customer, with the understanding that the Object Tag Data does not include any Customer Source Data.
j. “Outputs” means any reports, scripts, outputs and responses that are generated through Customer’s use of the AI Feature Service including any such outputs following the presentation of an image via Brain API Calls or otherwise.
k. “Permitted Storage” means the maximum amount of memory required to store Source Data, Outputs, and the Deployed Brain within the AI Feature Service, as set forth in the applicable Order.
l. “Prohibited Content” means any images, video or other content that: (a) infringes the intellectual property rights of any third party, (b) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, or profane, and/or (c) contains any viruses, worms, or similar harmful code.
m. “Source Data” means text, graphic, audio, visual, audio-visual data or other content. There are two types of Source Data: (a) “Training Source Data” which Source Data that is to be tagged using the AI Feature Service and is used to train a Brain to be developed into a Deployed Brain and (b) “Production Source Data” aka “Images” which are analyzed by a Deployed Brain to create Outputs. Training Source Data may be provided by Customer (“Customer Training Source Data”), AI Partner (“AI Partner Training Source Data”) or both as set forth in the applicable Order.
n. “Video Annotation Hours” means the maximum actual elapsed video playback time that may be automatically annotated using the AI Feature Service’s AI-assisted video annotation capability as set forth in the applicable Order.

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