1. PROVISION OF SERVICES

1.1 Access.
Subject to this Agreement, Service Provider will provide the services set forth in an Order Form (and any written amendments or supplements signed by both Parties) (the “Services”). Service Provider will provide Customer with the passwords, access codes, technical specifications, connectivity standards, or other procedures necessary to allow Customer to access the Service Provider Solution in connection with the Services (“Access Protocols”). Customer will prevent unauthorized access to or use of the Service Provider Solution and will notify Service Provider promptly of any unauthorized use known to Customer. Customer is responsible for managing its employees’ and agents’ access to the Service Provider Solution, including by promptly revoking access when individuals no longer require it.

1.2 Customer Obligations; Use Restrictions.
The Service Provider Solution, together with any related software, technology, algorithms, processes, designs, user interfaces, documentation and any intellectual property rights related thereto or embodied therein, as well as any improvements or modifications to the foregoing, are the exclusive property and Confidential Information of Service Provider. Customer will not, and will not permit any other party to: (a) allow any third party to access the Service Provider Solution, except as expressly allowed in an Order Form; (b) modify, adapt, alter or translate the Service Provider Solution; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow use of the Service Provider Solution for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code (or underlying ideas, algorithms, structure or organization) of the Service Provider Solution, except as permitted by law; (e) interfere in any manner with the operation of the Service Provider Solution or the hardware and network used to operate it; (f) copy or make derivative works based on any part of the Service Provider Solution or documentation; (g) access or use the Service Provider Solution to build, improve or enhance a similar or competitive product or service; (h) attempt to access the Service Provider Solution through any unapproved interface; or (i) otherwise use the Service Provider Solution or Services in any manner inconsistent with applicable law. Customer is responsible for obtaining any telecommunications or computer hardware or software required to access the Service Provider Solution and for complying with all applicable laws, rules and regulations in connection with its use of the Services and Customer Information.

1.3 AI Services.
(a) AI Features. Certain features of the Service Provider Solution may use generative artificial intelligence or similar technologies (“AI Services”). Customer or its users may provide text, images, audio, video, files or other data to the AI Services (“Prompts”). The AI Services may generate text, images, audio, video, files, other content or actions in response (“Output”).

(b) AI Restrictions. Customer will not, and will not permit any third party to: (i) provide Prompts that infringe, misappropriate or violate any third-party rights or any applicable law, or that are intended, or would reasonably be expected, to generate infringing, unlawful or harmful Output; (ii) use Output in violation of any applicable law or third-party rights; (iii) attempt to discover or extract any underlying components (including models, algorithms or weights) of any AI models used by or for the AI Services; (iv) misrepresent that Output is solely human-generated or expressly approved by Service Provider; or (v) use Output to develop, train or improve models that compete with the Services or Service Provider Solution.

(c) AI Output; Responsibility. Customer acknowledges that Output may be inaccurate, incomplete, or not reflect current information. Customer is responsible for using its own operational, technical and business judgment in connection with any use of Output and will not solely rely on Output for decisions or actions. Customer is solely responsible for determining whether and how to use any Output and for any consequences of such use.

2. CUSTOMER INFORMATION

2.1 Customer Responsibility.
“Customer Information” means any data and information provided or submitted by, or on behalf of, Customer or its employees for use in connection with the Services, including any personally identifiable information. Customer Information is the exclusive property of Customer. Customer is solely responsible for the accuracy, quality and legality of Customer Information. Customer will obtain all consents and permissions needed for Service Provider to use the Customer Information to provide the Services. Customer will have access to Customer Information and will be responsible for all changes to or deletions of Customer Information and the security of all passwords and other Access Protocols used to access the Service Provider Solution. Customer is responsible for employing appropriate security measures to protect Customer Information and for compliance with applicable laws in connection with its use of the Services and Customer Information. To the extent that Customer Information is integrated with third-party software offerings, the security of those systems is the responsibility of Customer or such third-party vendor. Customer is solely responsible for its own business and legal decisions with respect to its use of the Services.

2.2 Service Provider Responsibility.
Service Provider will comply with applicable laws in connection with the provision of the Services, including as relates to the processing of any Customer Information. Service Provider will maintain reasonable physical, administrative and technical security measures designed to support the availability, integrity and confidentiality of Customer Information.

2.3 Feedback and Aggregate Data.
Service Provider may use any suggestions, enhancement requests, recommendations or other feedback obtained in the course of providing the Services or otherwise provided by Customer (“Feedback”). Service Provider may also collect, use and analyze data generated through use of the Services in order to improve and enhance the Service Provider Solution and Services and for development, diagnostic and corrective purposes, solely to the extent such data is aggregated or de-identified in a manner that does not identify Customer or any individual. For clarity, Service Provider may use such aggregated or de-identified data, including information derived from Customer Information, Prompts and Output, to develop and train models and algorithms used in the Services and other offerings of Service Provider.

3. PAYMENTS

3.1 Fees.
In consideration for the access rights granted to Customer and the Services performed by Service Provider under this Agreement, Service Provider will be paid the fees set forth in an Order Form (“Fees”). Except as otherwise provided in an Order Form or expressly in this Agreement, payment obligations are non-cancelable and all amounts paid are nonrefundable.

3.2 Payments.
Except as otherwise provided in an Order Form, all Fees are billed at the beginning of the term set forth in the Order Form and are due and payable within thirty (30) days of the date of the invoice. Service Provider reserves the right (in addition to any other rights or remedies it may have) to suspend or discontinue the Service Provider Solution and suspend Customer’s access to the Services if any Fees are more than thirty (30) days overdue, until such amounts are paid in full. Any amounts not paid when due will bear interest at the rate of one and one-half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid.

3.3 Taxes.
Fees are exclusive of all applicable sales, use, value-added and other taxes and all duties, tariffs, assessments, export and import fees or other similar charges. Customer is responsible for payment of all such taxes, fees, duties and charges (other than taxes based on Service Provider’s income) arising from the payment of Fees, provision of the Services or license of the Service Provider Solution. Customer will make all payments of Fees to Service Provider free and clear of any withholding taxes; any such taxes imposed on payments of Fees are Customer’s responsibility.

4. TERM AND TERMINATION

4.1 Term.
This Agreement begins on the effective date of the first Order Form between the Parties and continues in full force and effect for as long as any Order Form remains in effect, unless earlier terminated in accordance with this Agreement (the “Term”).

4.2 Order Form Term and Renewal.
Each Order Form will specify an initial term (“Initial Term”). Thereafter, the Order Form will automatically renew for additional one (1) year terms (“Renewal Terms”) unless either Party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current term. Any discounts specified on an Order Form apply only to the Initial Term unless explicitly stated otherwise.

4.3 Termination for Breach.
Either Party may terminate this Agreement or any Order Form immediately upon notice to the other Party if the other Party materially breaches this Agreement and such breach remains uncured more than thirty (30) days after receipt of written notice describing the breach.

4.4 Termination by Service Provider.
Service Provider may terminate this Agreement or any Order Form upon notice to Customer if: (a) Service Provider is required to do so by law (for example, where provision of the Service to Customer is, or becomes, unlawful); (b) provision of the Service to Customer is, in Service Provider’s opinion, no longer commercially viable; or (c) Service Provider elects to discontinue the Service (or a material part thereof). If the Service Provider terminates under this Section 4.4 for reasons other than the Customer’s breach, the Service Provider will refund any unused, prepaid Fees for the affected Service for the remaining portion of the then-current term.

4.5 Effect of Termination.
Upon termination or expiration of this Agreement for any reason, Customer’s right to use the Services and Service Provider Solution will cease, and any amounts owed to Service Provider under this Agreement will become immediately due and payable. Sections 2.3, 3, 4.5, 5, 6, 7, 8, and 9 will survive expiration or termination of this Agreement.

5. CONFIDENTIALITY

5.1 Confidential Information.
“Confidential Information” means any nonpublic information of a Party (“Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of disclosure or that the receiving Party (“Receiving Party”) knows or should know is confidential or proprietary. Customer Information is Confidential Information of Customer.

5.2 Protection.
The Receiving Party will not use or disclose any Confidential Information of the Disclosing Party except as expressly permitted under this Agreement. The Receiving Party will limit access to Confidential Information to its employees and contractors who have a reasonable need to know and are bound by obligations no less restrictive than those set forth herein. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access or disclosure in the same manner it protects its own confidential information of similar nature, but in no event with less than reasonable care.

5.3 Exceptions.
The obligations in Section 5.2 do not apply to information that: (a) is or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of confidentiality obligations; (c) was already known to the Receiving Party free of confidentiality obligations at the time of disclosure; or (d) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. The Receiving Party may disclose Confidential Information to the extent required by law or court order, provided that (to the extent legally permitted) it promptly notifies the Disclosing Party and cooperates in seeking protective relief.

6. WARRANTIES AND DISCLAIMERS

6.1 Mutual Warranties.
Each Party represents and warrants that: (i) it is duly incorporated, validly existing and in good standing under the laws of its jurisdiction of organization; (ii) it has the full power and authority to enter into and perform this Agreement; and (iii) this Agreement has been duly executed and constitutes its legal, valid and binding obligation, enforceable in accordance with its terms.

6.2 Service Provider Warranties.
Service Provider represents and warrants that it will provide the Services in a professional and workmanlike manner, substantially consistent with general industry standards and in compliance with applicable laws.

6.3 Disclaimer.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES AND SERVICE PROVIDER SOLUTION (INCLUDING ANY AI SERVICES AND ANY OUTPUT) ARE PROVIDED “AS IS,” AND SERVICE PROVIDER MAKES NO OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. SERVICE PROVIDER DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE SERVICES, OUTPUT OR RESULTS WILL MEET CUSTOMER’S REQUIREMENTS OR BE ACCURATE OR COMPLETE. CUSTOMER IS RESPONSIBLE FOR USING ITS OWN OPERATIONAL, TECHNICAL AND BUSINESS JUDGMENT IN CONNECTION WITH ANY PROCESSES OR DECISIONS THAT USE THE SERVICES OR ANY OUTPUT AND WILL NOT SOLELY RELY ON THE SERVICES OR ANY OUTPUT. SERVICE PROVIDER IS NOT RESPONSIBLE FOR ANY ACT OR OMISSION OF ANY THIRD PARTY OR THIRD-PARTY PRODUCTS OR SERVICES.

7. LIMITATION OF LIABILITY

7.1 Types of Damages.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, COSTS OF DELAY, LOSS OF DATA OR BUSINESS INTERRUPTION, ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7.2 Cap.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID BY CUSTOMER TO SERVICE PROVIDER FOR THE SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY, OR ONE HUNDRED U.S. DOLLARS (US$100), WHICHEVER IS GREATER.

8. INDEMNIFICATION

8.1 By Service Provider.
Service Provider will defend, at its expense, any claim, action or suit brought against Customer alleging that the Service Provider Solution infringes a third party’s U.S. patents, copyrights or trade secret rights, and will pay any settlement Service Provider approves or any damages finally awarded in such suit. Service Provider will have no obligation under this Section 8.1 with respect to any claim to the extent based on: (i) use of the Services not in accordance with this Agreement or documentation; (ii) use of the Services in combination with products, services, software or data not supplied by Service Provider; or (iii) Customer Information or other materials provided by or on behalf of Customer.

8.2 By Customer.
Customer will defend, at its expense, any claim, action or suit brought against Service Provider arising out of or relating to Customer Information, Prompts or Output, or Customer’s improper or unauthorized use of the Services, and will pay any settlement Customer approves or any damages finally awarded in such suit.

8.3 Procedure.
The indemnified Party will promptly notify the indemnifying Party in writing of any claim, action or suit for which it seeks indemnity (provided that failure to do so will not relieve the indemnifying Party of its obligations except to the extent materially prejudiced). The indemnifying Party will have sole control of the defense and settlement of any such claim, action or suit, and the indemnified Party will cooperate as reasonably requested at the indemnifying Party’s expense.

9. MISCELLANEOUS

9.1 Governing Law and Venue.
This Agreement and any action related thereto will be governed by and interpreted under the laws of the State of New York, without regard to its conflicts of laws principles. The Parties consent to the exclusive personal jurisdiction and venue in the state and federal courts located in New York, New York for any lawsuit arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

9.2 Export & Foreign Use.
Customer will not export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Service Provider, or any products utilizing such data, in violation of U.S. export laws or regulations. Service Provider makes no representation that the Services are appropriate or available for use outside the United States. If Customer uses the Services from outside the United States, Customer is responsible for compliance with all applicable laws, including export and import regulations.

9.3 Severability.
If any provision of this Agreement is held invalid or unenforceable, the remaining provisions will remain in full force and effect, and the invalid or unenforceable provision will be modified so that it is valid and enforceable to the maximum extent permitted by law.

9.4 Waiver.
Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

9.5 Assignment.
Neither Party may assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights or obligations, without the prior written consent of the other Party, except that either Party may assign this Agreement without consent in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets. Any prohibited assignment is void. This Agreement is binding upon and inures to the benefit of the Parties and their respective successors and permitted assigns.

9.6 Force Majeure.
Any delay in the performance of any obligations of either Party (other than payment obligations) will not be considered a breach if caused by events beyond its reasonable control, including labor disputes, shortages, telecommunication or internet failures, fire, earthquake, flood, pandemic, war or governmental actions, provided such Party uses reasonable efforts to resume performance as soon as practicable.

9.7 Independent Contractors.
The Parties are independent contractors. This Agreement does not create any agency, partnership, joint venture, or employment relationship. Neither Party has authority to bind the other.

9.8 Notices.
All notices required or permitted under this Agreement must be in writing and delivered by email to the contact email listed on the Order Form, with a copy (for legal notices) sent by courier, certified or registered mail (postage prepaid and return receipt requested), or a nationally-recognized express mail service to the address listed on the Order Form. Either Party may change its contact information by giving notice to the other Party.

9.9 Counterparts; Entire Agreement.
This Agreement may be executed in counterparts, each of which will be deemed an original, and all of which together will be deemed one agreement. Execution and delivery by electronic signature or via a mutually agreed electronic acceptance mechanism will be deemed valid and binding. This Agreement, together with all Order Forms that reference it, constitutes the final, complete and exclusive agreement between the Parties with respect to its subject matter and supersedes all prior discussions or agreements relating to such subject matter.