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End User Software Services License Agreement


IMPORTANT:   THIS AGREEMENT (“AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN THE PERSON, COMPANY, OR ORGANIZATION (“YOU” OR “CUSTOMER”) THAT HAS LICENSED THE SOFTWARE SERVICES (AS DEFINED BELOW) AND Z21 LABS, INC.,DBA OBSERVE.AI (“OBSERVE.AI”).  PLEASEREAD THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY BEFORE CONTINUING WITH USING THE SOFTWARE SERVICES. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU WILL NOT BE AUTHORIZED TO USE OR ACCESS ANY PART OF THE SOFTWARE SERVICES. OBSERVE.AI’S LICENSES GRANTED HEREIN AND OBLIGATIONS ARE EXPRESSLY CONDITIONAL ON YOUR ASSENT TO THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS.  OBSERVE.AI IS ONLY WILLING TO LICENSE THE SOFTWARE SERVICES UPON THE CONDITION THAT YOU ACCEPT ALL THE TERMS CONTAINED HEREIN. AS USED HEREIN, OBSERVE.AI AND CUSTOMER MAY BE REFERRED TO EACH AS A “PARTY” AND COLLECTIVELY AS THE “PARTIES.”

SCOPE

This Agreement sets forth the specific terms under which Observe.ai will license the Software Services (as defined below), and under which Customer may access such Software Services and, if desired by Customer, purchase Observe.ai Professional Services (as defined below). This Agreement consists of the terms and conditions set forth below and any attachments, addenda or exhibits referenced in the Agreement, and any Order Form(s) (“Order Form(s)”) and Statement of Work (“SOWs”) that reference this Agreement.

1. Definitions

When used through out this Agreement, the following capitalized terms will have the meanings assigned to those terms in this Section.

Aggregated Anonymous Data” means the product of Customer Content submitted to, collected by, accessed and/or generated by Observe.ai in connection with Customer’s use of the Software Services, but only in aggregate, anonymized form which cannot be readily linked to Customer (or any of Customer’s customers) or any specific entity or natural person. For sake of clarity, Aggregated Anonymous Data is not Customer Content.

Affiliate” means any entity controlling or controlled by or under common control with a Party, where “control” is defined as the ownership of more than 50% of the equity or other voting interests of such entity or the power to direct or cause the direction of the management or policies of such entity, whether through ownership, voting securities, contract or otherwise.

Business Associate Agreement” means the Observe.ai Business Associate Agreement found at https://observe.ai/business-associate-agreement.

Confidential Information” means all information that is identified as confidential at the time of disclosure by the Disclosing Party (as defined below) or should be reasonably known by the Receiving Party (as defined below) to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure, including technical information, information about product plans and strategies, promotions, customers and related technical, financial or business information which the disclosing Party.

Customer Content” means any data or data files of any type that are uploaded by or on behalf of Customer to the Software Services or generated by the Software Services.

DPA” means the Data Protection Addendum found at https://observe.ai/dataprotectionaddendum.

Documentation” means all written instructions, user and technical manuals, reference guides, training materials, release notes, installation notes, descriptions, specifications, and any other materials, inpaper, electronic or any other form, that describe the requirements, features, functions, support, maintenance and/or use of the Software Services.

Fees” means the fees payable by Customer for the applicable Software Services or Professional Services, as set forth in an Order Form or Statement of Work.

License Parameter(s)” means any factor that serves as a basis for calculating the amount of fees payable for the license to the Software as identified in the Order Form.

Order Form” means the ordering document (and/or a SOW, if applicable) used by Customer and Observe.ai (or its authorized reseller) specifying the Software Services or Other Services to be provided by Observe.ai.

Other Services” means all technical and non-technical services performed or delivered by Observe.ai under this Agreement, including, without limitation, implementation services training and education services. Other Services will be provided as specified in the corresponding Order Form.

Professional Services” means certain information technology and related services, including, assistance with implementation and training services provided by Observe.ai to Customer.

Privacy Policy” means the Observe.ai Privacy Policy found at https://observe.ai/privacypolicy.

Service Level Agreement” means the Observe.ai Service Level Agreement made available at https://www.observe.ai/service-level-agreement.

Software” means the object code version of any software to which Customer is provided access as part of the Software Services, including any updates or new versions.

Software Services” means the Observe.ai software-as-a-service offering ordered by Customer as set forth in an Order Form.

SOW” shall have the meaning set forth in any Order Form in which the Customer agrees to purchase Professional Services from Observe.ai and Observe.ai agrees to provide such Professional Services to Customer, subject to the terms of such Order Form and this Agreement.

Subscription Term” shall mean that period specified in an Order Form during which Customer will have on-line access and use of the Software Services.

Taxes” means taxes, levies, duties or similar governmental assessments of any nature, including, for example, any sales, use, GST, value-added, with holding, or similar taxes, whether domestic or foreign, or assessed by any jurisdiction, but excluding any taxes based on net income, property, or employees of Observe.ai.

Third-Party Software Applications” means separate services or applications procured by Customer from a party other than Observe.ai that can be used in connection with the Software Services.

Usage Data” means query logs and any data (other than Customer Content) relating to the operation, support and/or Customer’s use of the Software Service. All usage Data is anonymized and in no event will Usage Data identify or be identifiable of any Confidential Information, individual or entity, including Customer as the source of such Data.

User” means the persons designated and granted access to the Software Services by or on behalf of Customer and its Affiliates.

VAT/GST Registration Number” means the value added tax/GST registration number of the business location(s) where Customer is legally registered and the ordered services are used for business use.

2. License Rights & Restrictions

2.1. Rights of Use. Subject to the terms and conditions of this Agreement, the License Parameter(s), and the terms set forth in an Order Form, during the Subscription Term Observe.ai hereby grants to Customer, its Affiliates, and any Users, a limited non-exclusive, worldwide, non-sublicensable, non-transferable license to use the Software Services for Customer’s internal business purposes, solely in accordance with the Documentation. Customer shall be responsible for each User’s compliance with this Agreement. Customer acknowledges that this Agreement is for the Software Services and Observe.ai will not be delivering copies of the Software to Customer as part of the Software Services.

2.2. Evaluation Copies. The following terms will apply to any pre-release versions, or beta, evaluation or proof of concept copies, periods or trials of the Software Services provided to Customer (notwithstanding any contrary term specified in any other sections of this Agreement): (i) the proprietary Software Services will be deemed “Software” under this Agreement and the license to use the Software will terminate at the end of the trial period identified by Observe.ai (or if no period is identified  then in thirty (30) days from delivery of access to the Software) and use of the Software by Customer or Users will be for the limited purpose of evaluating the relevant Software and establishing Customer’s desire to purchase licenses to the Software or providing any feedback desired; (ii) the Software is provided “As Is” without any warranty or liability by Observe.ai of any kind such as those detailed in Section 12 of this Agreement; (iii) Customer will not been titled to any support services or any upgrades with respect to the Software unless a license is later purchased; (iv) Customer will not be entitled to Indemnification protection as further outlined in Section 8.2 of this Agreement; and (iv) Observe.ai may at any time terminate Customer’s license to the Software by written notice to Customer and require Customer to promptly return such copies of the Software and remove all copies of the Software from its systems.

2.3. License Restrictions. Customer will not, and will not permit any third party to: (i) use the Software Services except to the extent permitted herein; (ii) reverse engineer, decompile, disassemble or other wise attempt to discover or obtain the source code, object code or underlying structure, ideas or algorithms of the Software or data related to the Software or Software Services except as permitted by applicable law; (iii) adapt, alter, translate, create derivative works of, copy, or otherwise modify the Software Services; (iv) allow third parties other than Affiliates or Users to access or use the Software Services; (v) use the Software Services for timesharing or service bureau purposes, market, sell, license, sublicense, distribute, publish, disclose, rent, lease, loan, assign or otherwise transfer to a third party the Software Services or any copy there of, in whole or in part; (vi) use the Software Services in any infringing, defamatory, harmful, fraudulent, illegal, deceptive, threatening, harassing, or obscene way; or (vii) use the Software Services other than in compliance with all applicable laws, regulations and rights. Customer shall have no rights to any source code for the Software Services.

2.3. Third-Party Software. Access to the Software Services may require the Customer to install certain Third Party Software Applications. Observe.ai is not responsible for the operation of any Third Party Software Applications nor the availability or operation of the Third Party Software Applications. Observe.ai does not make any representations or warranties with respect to Third Party Software Applications or any third party providers. Any exchange of data or other interaction between Customer and a third party provider is solely between Customer and such third party provider and is governed by such third party’s terms and conditions.

3. Responsibilities of the Parties

3.1. Assistance. Customer shall provide commercially reasonable information and assistance to Observe.ai to enable Observe.ai to deliver the Software Services, and each Party will cooperate with the other in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required and taking such other actions as the other Party may reasonably request. Customer will also cooperate with Observe.ai in establishing passwords and procedures for verifying that only designated Users have access to any administrative functions of the Software Services.

3.2. Compliance with Laws. The Parties expressly agree and acknowledge:
3.2.1. Customer shall comply with all applicable local, state, national and foreign laws inconnection with its use of the Software Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data.
3.2.2. Observe.ai shall comply with all applicable local, state, national and foreign laws inconnection with its provision of the Software Services, including, those laws related to software and service providers, data privacy, international communications, and the transmission of personal data.
3.2.3. Customer acknowledges that Observe.ai exercises no control over the content of the information transmitted by Customer through the Software Services. Customer shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.

3.3. Unauthorized Use. Although Observe.ai has no obligation to monitor Customer Content or Customer’s use of the Software Services, Observe.ai may do so and may remove any such Customer Content from the Software Services or prohibit any use of the Software Services at anytime, for any or no reason, including if Observe.ai receives any notice or claim that any such Customer Content or activities here under with respect to any such Customer Content, may infringe or violate rights of a third party. Customer will be responsible for maintaining the security of Customer’s account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent. Further, Observe.ai shall be entitled to block Customer’s access to the Software Services in the case of a violation of this Agreement. Access will then be reactivated if the condition in breach of this Agreement has been resolved to the reasonable satisfaction of Observe.ai. Customer further acknowledges, agrees to, and is bound by the Privacy Policy, except to the extent expressly and directly in conflict with the terms hereof. Customer shall notify Observe.ai immediately of any unauthorized use of any password or user credentials, or any other known or suspected breach of security of the Software Services, and use reasonable efforts to stop any unauthorized use of the Software Services that is known or suspected by Customer.

3.4. License from Customer. Subject to the terms and conditions of this Agreement, Customer hereby grants to Observe.ai a limited, non-exclusive and non-transferable (except as provided in Section 18 below) license, to copy, store, configure, perform, display and transmit Customer Content solely as necessary to provide the Software Services to Customer and to generate Aggregated Anonymous Data. Customer retains sole and exclusive ownership and intellectual property rights in and to its Customer Content.

3.5. Customer Access. Customer shall be solely responsible for the acts and omissions of its Users. Observe.ai shall not be liable for any loss of data or functionality caused directly or indirectly by Users.

3.6. Covered Entities. If Customer is a “Covered Entity” under 45 CFR 160.103, Observe.ai will comply with the terms and conditions of the Business Associate Agreement, and the term of the Business Associate Agreement shall be coextensive with the Term (as defined below).

4. Availability & Support

4.1. Availability. Observe.ai will make the Software Services available in accordance with and subject to the Service Level Agreement. Notwithstanding the foregoing, Observe.ai reserves the right to suspend Customer’s access to the Software Services for scheduled or emergency maintenance or in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Observe.ai that are not subject to Customer’s good faith dispute.

4.2. Support. During a Subscription Term and subject to the terms hereof, Observe.ai will provide reasonable support to Customer for the Software Services in accordance with the Service Level Agreement.

5. Professional Services

Observe.ai will provide Customer the Professional Services purchased under this Agreement, if any. The scope of Professional Services will be as set forth in a SOW referencing this Agreement. Professional Services will be delivered subject to the terms and conditions of this Agreement and the applicable SOW or Order Form. Customer may use anything delivered as part of the Professional Services in support of its use of the Software Services during a Term, and Observe.ai will retain all right, title and interest in and to any such work product, code and deliverables and any derivative, enhancement or modification thereof created by or on behalf of Observe.ai. For the avoidance of doubt, Observe.ai will not under this Agreement provide Customer with any development or customization of the Software Services.

6. Confidentiality

6.1. Definition. Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”)has disclosed or made available or may disclose or make available Confidential Information of the Disclosing Party). The Receiving Party agrees: (i) not to divulge to any third person any such Confidential Information, (ii) to give access to such Confidential Information solely to those employees, agents, and independent contractors with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Confidential Information that the Party takes with its own confidential information, but in no event will a Party apply less than commercially reasonable precautions to protect such Confidential Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement or fault of, the Receiving Party, or (b) was in its possession or known by it without restriction prior to receipt from the Disclosing Party, or (c) was right fully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Confidential Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. However, in the event that Receiving Party is prohibited from notifying Disclosing Party of receiving such a request, whet herby operation of law, regulation or similar governance, Receiving Party shall not be held liable or responsible here under for with holding said notification. The Parties agree that Aggregated Anonymous Data is not Confidential Information.

6.2. Duties. Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure or is included in a filing required to be made by a Party with a governmental authority (provided such Party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.

6.3. Compelled Disclosure. In the event the Receiving Party is required under applicable law, rule, regulation, court or administrative order to disclose Confidential Information of the Disclosing Party, the Receiving Party shall use commercially reasonable efforts to: (i) promptly give notice, if permitted, to the Disclosing Party in order to enable the Disclosing Party to seek a protective order or other remedy; (ii) consult with the Disclosing Party with respect to the scope of the request or legal process to the extent possible; and (iii) limit any such disclosure to the extent necessary and required.

6.4. Return of Information. Upon expiration or termination of this Agreement and upon subsequent written request by the Disclosing Party, the Receiving Party shall immediately return all Confidential Information of the Disclosing Party or irrevocably destroy such information and provide written certification of such destruction. Not with standing the foregoing, the Receiving Party will be permitted to retain (i) electronic copies created pursuant to standard back-up or archival procedures, and (ii) one (1) copy of such Confidential Information to the extent required by applicable law or regulation; provided, however, that such copies of Confidential Information retained will remain subject to the terms of this Agreement.

7. Intellectual Property Rights

7.1. Observe.ai. Except as expressly set forth herein, Observe.ai alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Software, the Software Services, including Aggregated Anonymous Data, and the Documentation, or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Software Services and/or the Software, which are hereby assigned to Observe.ai. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. Customer is hereby granted a non-exclusive, non transferable, revocable right to use the resulting data for its internal analysis purposes only during the Subscription Term. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Software Services, or any intellectual property rights.

7.2. Customer. Observe.ai will obtain and process the Customer Content provided by or on behalf of Customer only to perform its obligations under this Agreement and will not use such Customer Content, or any other Confidential Information of Customer, for any other purpose. Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest (including, without limitation, ownership to) in and all Customer Content distributed through the Software Services, the intellectual property rights with respect to that Customer Content, and all Customer Confidential Information that may be disclosed by Customer to Observe.ai. Not with standing anything to the contrary, Customer acknowledges and agrees that Observe.ai may (i) use and modify the Customer Content for the purposes of (a) providing the Software Services, (b) testing, improving and operating Observe.ai’s products and services, (c) generating Aggregated Anonymous Data, and (d) freely retain and use Aggregated Anonymous Data for Observe.ai’s business purposes (including without limitation, for purposes of improving, testing, and operating Observe.ai’s products and services).

8. Indemnification

8.1. By Customer. Customer will defend, indemnify and hold harmless Observe.ai, its employees, officers, directors, Affiliates, contractors agents or other representatives (each, an “Observe.ai Indemnitee”) from and against any damages, losses, liabilities, awards, settlements and expenses (including without limitation costs and reasonable attorneys’ fees) payable by any Observe.ai Indemnitee to any unrelated third party in connection with any third party claim or action arising from an alleged violation of the intellectual property rights of any third party or otherwise from Customer Content or Customer’s use of the Software Services in violation of the terms of this Agreement.

8.2. By Observe.ai. Observe.ai will defend, indemnify and hold harmless Customer, its employees, officers, directors, affiliates, contractors agents or other representatives (each, a “Customer Indemnitee”) from and against any damages, losses, liabilities, awards, settlements and expenses (including, without limitation, costs and reasonable attorneys’ fees) payable by any Customer Indemnitee to any unrelated third party in connection with any third party claim or action arising from an alleged infringement by the Software Services (and Professional Services, if applicable) of any patent, copyright, trademark, trade secret or other intellectual property right. The foregoing obligations do not apply with respect to portions or components of the Software Services (i) not created, or incorporated into the Software Services, by Observe.ai, (ii) resulting in whole or in part in accordance from Customer specifications, (iii) that are modified by Customer after delivery by Observe.ai without Observe.ai’s authorization or directive, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Software Services is not in accordance with this Agreement and the Documentation. Customer will indemnify Observe.ai from all damages, costs, settlements, attorneys’ fees and expenses related to any claim of infringement or misappropriation excluded from Observe.ai’s indemnity obligation by the preceding sentence solely to the extent that any such damages, costs, settlements, attorneys’ fees and expenses are attributable to the actions of Customer, its Affiliates, employees, or agents. If any part of the Software Services (and/or Professional Services, if applicable) becomes, or in Observe.ai’s reasonable opinion is likely to become, subject to an infringement threat, claim or action, Observe.ai may, in its sole discretion (at its expense and in addition to its indemnification obligations here under): (i) secure the right for Customer to continue using the alleged infringing item; (ii) replace or modify the alleged infringing item to make such item non-infringing (provided that any such replacement or modification will not materially degrade the performance or quality of the Services in the aggregate), or (iii) terminate this Agreement (in which case Observe.ai will provide Customer with a pro-rated refund for the unused portion of the Fees).

8.3. Procedures. Each Party’s indemnification obligations under this Section are conditioned on the indemnified Party (i) promptly notifying the indemnifying Party of the indemnifiable claim; (ii) permitting the indemnifying Party, at the indemnifying Party’s option, to assume sole control over the defense and trial of any claim and any related settlement thereof, and (iii) at the request and expense of the indemnifying Party, reasonably cooperating with the indemnifying Party in the defense of any such claim. The indemnifying Party shall not agree to any settlement that admits any wrong doing on the part of the indemnified Party, imposes civil or criminal liability on any indemnified Party, or requires any specific performance by any indemnified Party without the indemnifying Party first obtaining the indemnified Party’s written consent, such consent not to be unreasonably withheld.

9. Payment of Fees

9.1. Invoicing and Payment Terms. Customer will pay Observe.ai (or its authorized reseller) the Fees set forth on the applicable Order Form or SOW, and payments will be due in accordance with the invoice schedule set forth in the applicable Order Form or SOW. Unless otherwise set forth in the applicable Order Form or SOW, payments will be due within thirty (30) days of the invoice date and are non refundable (unless Customer terminates this Agreement for breach pursuant to Section 10.3 hereof). Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, which ever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all Taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes unless Customer has provided Observe.ai (or its authorized reseller) with a valid exemption certificate. In the case of any with holding requirements, Customer will pay any required with holding itself and will not reduce the amount paid to Observe.ai (or its authorized reseller) on account thereof.

9.2. Additional Usage. In connection with the use of the Software Services, Customer will not exceed the License Parameters agreed to in the Order Form. At any time during the Subscription Term, if Customer desires to increase the relevant License Parameters, then Customer will notify Observe.ai (or its authorized reseller), execute an applicable Order Form, and pay the incremental Fees due, and henceforth the relevant License Parameters will be deemed amended to reflect such purchase. From time to time, but not more frequently than once per calendar quarter, in order to verify Customer’s compliance with its license usage rights, Observe.ai (or its authorized reseller) may access and review Usage Data. If Observe.ai (or its authorized reseller) learns that Customer’s actual usage (“Actual Usage”) exceeds the relevant License Parameters paid for by Customer (“Purchased Usage”), Observe.ai (or its authorized reseller) may invoice Customer accordingly. Unless otherwise mutually agreed in an express writing signed by duly authorized representatives of both Parties, the Fees charged to Customer for such additional usage will be based on the pricing charged to the Customer in the Order Form containing the most recent License Parameters (as amended from time to time pursuant to this Section 9.2) and, unless otherwise agreed, the Fees will be charged for the balance of the Subscription Term so that the licenses may be coterminous with the existing licenses.

9.3. Taxes. Customer is responsible for paying all Taxes associated with its purchases here under including without limitation all use or access of the Software Services by its Users. If Observe.ai (or its authorized reseller) has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, Observe.ai (or its authorized reseller) will invoice Customer and Customer will pay that amount unless Customer provides Observe.ai (or its authorized reseller) with a valid tax exemption certificate authorized by the appropriate taxing authority. Taxes will not be deducted from payments to Observe.ai (or its authorized reseller), except as required by applicable law, in which case Customer will increase the amount payable as necessary so that, after making all required deductions and withholdings, Observe.ai (or its authorized reseller) receives and retains (free from any liability for Taxes) an amount equal to the amount it would have received had no such deductions or with holdings been made. Upon Observe.ai’s (or its authorized reseller’s) request, Customer will provide to Observe.ai (or its authorized reseller) its proof of with holding tax remittance to the respective tax authority. Where applicable, Customer will provide its VAT/GST Registration Number(s) on the Order Form to confirm the business use of the ordered services. Customer agrees to indemnify, defend, and hold Observe.ai (and its authorized reseller), its officers, directors, consultants, employees, successors and assigns harmless from all claims and liability arising from Customer’s failure to report or pay any such taxes, duties or assessments.

10. Terms & Termination

10.1. Term. The term of this Agreement (the “Term”) shall begin on the Effective Date and shall continue for so long as any Order Form is in effect.

10.2. Termination for Breach. Either Party may terminate this Agreement (including all related Order Forms) if the other Party (a) fails to cure any material breach of this Agreement (including a failure to pay undisputed Fees) within thirty (30) days after written notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against that Party and is not dismissed within sixty (60) days. Except where an exclusive remedy is specified, the exercise of either Party of any remedy under this Agreement, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law or otherwise.

10.3. Suspension. In addition to any of its other rights or remedies (including, without limitation, any termination rights) set forth in this Agreement, Observe.ai reserves the right to suspend provision of Software Services; (a) if Customer is thirty (30) days or more overdue on an undisputed payment, (b) if Observe.ai deems such suspension necessary as a result of Customer’s breach of Sections 2.1 (Rights of Use) or 2.3 (License Restrictions),(c) if Observe.ai reasonably determines suspension is necessary to avoid material harm to Observe.ai or its other customers, or (d) as required by law or at the request of governmental entities.

10.4. Effect of Termination. Upon termination of this Agreement or expiration an Order Form, Observe.ai shall immediately cease providing the Software Services and all usage rights granted by either Party to the other Party under this Agreement shall terminate. If Observe.ai terminates this Agreement due to a breach by Customer, then Customer shall immediately pay to Observe.ai (or its authorized reseller) all amounts then due under this Agreement or Order Form and to become due during the remaining term of this Agreement, but for such termination. If Customer terminates this Agreement due to a breach by Observe.ai, then Observe.ai (or its authorized reseller) shall immediately repay to Customer all pre-paid amounts for any unperformed Software Services scheduled to be delivered after the termination date and such shall be without prejudice to any other remedies available to Customer.

10.5. Survival. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations, intellectual property rights, warranty disclaimers, and limitations of liability.

11. Software Security

Observe.ai represents and warrants that it will not knowingly include, in any Observe.ai software released to the public and provided to Customer hereunder, 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. If, at any time, Observe.ai fails to comply with the warranty in this Section, Customer may promptly notify Observe.ai in writing of any such noncompliance. Observe.ai will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Customer may terminate this Agreement as its sole and exclusive remedy for such non compliance.

12. Warranties

12.1. Mutual Warranties. Each Party represents and warrants to the other that (i)it has the full power to enter into this Agreement and that this Agreement constitutes a legal, valid and binding obligation of the Party, enforceable against it, (ii) this Agreement does not contravene, violate or conflict with any other agreement of the Party with any third party, and (iii) it shall comply with all applicable laws, rules, and regulations.

12.2. Software Services Warranty. For a period of ninety (90) days from the effective date of the relevant Order Form for the Software Services Observe.ai warrants that the Software Services will materially conform to its published specifications described in the relevant Documentation supplied by Observe.ai. Customer’s sole and exclusive remedy and the entire liability of Observe.ai and its suppliers and licensors under this limited warranty will be, at Observe.ai’s option, repair or replacement of the Observe.ai Technology, or if repair or replacement is not possible, to terminate the Agreement and refund the Fees paid by Customer for the affected Observe.ai Technology.

12.3. Professional Services Warranty. For a period of thirty (30) days from the date of delivery of any Professional Services by Observe.ai to Customer, Observe.ai represents and warrants to Customer that the services provided will be professional, workmanlike and performed in a manner conforming to any requirements stated in this Agreement or in the relevant SOW or Order Form. Observe.ai’s entire liability and Customer’s sole and exclusive remedy for any breach of this warranty will be for Observe.ai to re-perform the non conforming Professional Services, or if Observe.ai is unable to deliver conforming Professional Services within a reasonable time, then refund any Fees paid to Observe.ai for the relevant non-conforming Professional Services.

12.4. Warranty Limitations. The express warranties in this Agreement do not apply if the applicable Software Services: (i) have been altered, except by Observe.ai or its authorized representatives or its contractors or by Customer pursuant to Observe.ai’s express instructions; (ii) have not been used, installed, operated, repaired, or maintained in accordance with this Agreement and/or Documentation; or (iii) are for beta, evaluation, or testing purposes. Additionally, the warranties set forth in this Agreement only apply to a warranty claim made within the warranty period specified in this Agreement and do not apply to any bug, defect or error caused by or attributable to software or products or services not supplied by Observe.ai.

12.5. Customer Content Warranty. Customer warrants that Customer Content when used as expressly permitted herein will not infringe, misappropriate, or violate any patent, copyright, trademark, trade secret or other intellectual property or proprietary right of any third party, or be provided uploaded, inputted or otherwise submitted by or on behalf of Customer (but if uploaded or inputted by Observe.ai, only if done so at the express request of Customer) or its Users to the or through the use of Software Services or Professional Services in violation of any third party’s rights or any applicable law.

13. WARRANTY DISCLAIMER

EXCEPT FOR THE WARRANTIES EXPRESSLY PROVIDED HEREIN, THE SOFTWARE SERVICES AND OBSERVE.AI CONFIDENTIAL INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. OBSERVE.AI (AND ITS AGENTS, AFFILIATES, LICENSORS, AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESSOR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

14. LIMITATION OF LIABILITY

IN NO EVENT WILL EITHER PARTY (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SOFTWARE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR IN ABILITY TOUSE THE SOFTWARE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF OBSERVE.AI HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF EITHER PARTY, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) TEN THOUSAND DOLLARS, OR (ii) THE FEES PAIDTO OBSERVE.AI UNDER THE RELEVANT ORDER IN THE TWELVE-MONTH PERIOD ENDING ON THE DATE THAT A CLAIMOR DEMAND IS FIRST ASSERTED. THE FORE GOING LIMITATIONS WILL APPLY NOT WITH STANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, BUT WILL NOT APPLY TO APARTY’S INDEMNIFICATION OBLIGATIONS OR CONFIDENTIALITY OBLIGATIONS HEREUNDER, GROSS NEGLIGENCE OR WILL FUL MISCONDUCT.

15. Data Protection

Observe.ai and Customer agree to comply with respective obligations under the Data Protection Act 1998 (hereafter the “Act”), and any updates to this Act, as applicable to personal data that it controls or processes as part of, or in connection with, its use or provision of the Software Services. Observe.ai does not take responsibility for the protection of personal data held by the Customer under the Observe.ai Software Services. Specifically, but without limitation, the Customer must comply with the Act as it relates to personal data the Customer stores or transfers using the Observe.ai Software Services.

16. U.S Government Matters

Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Software Services or any software or anything related there to or any direct product there of (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”).The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Software Services is a representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Observe.ai are “commercial items” and according to DFAR section 252.2277014 (a) (1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S.Government will be governed solely by the terms of this Service Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

17. NOTICE

All notices provided for by this Agreement shall be in express writings and shall be effective when delivered in person, when sent to the email address for notices specified below, or upon actual receipt via by certified mail (with return receipt requested) or nationally recognized receipted overnight delivery courier, addressed to the other Party at the address indicated herein or as the same may be changed from time to time by notice to the other Party.

To: Observe.ai
Attention: Legal Department
Address:  548 Market Street San Francisco, CA 94104-5401
To: Customer
Attention:
Email:
Address:

18. MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Observe.ai’s prior written consent. Observe.ai may transfer and assign any of its rights and obligations under this Agreement with written notice to Customer. Both Parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Observe.ai in any respect what soever. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees. Observe.ai may include Customer’s name and logo in its customer lists and on its website. Upon signing, Observe.ai may issue a high-level press release announcing the relationship and the manner in which Customer will use the Observe.ai solution. Observe.ai shall coordinate its efforts with appropriate communications personnel in Customer’s organization to secure approval of the press release if necessary. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of law’s provisions. The federal and state courts sitting in San Francisco County, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either Party may seek injunctive relief in any court of competent jurisdiction. Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by Observe.ai. Observe.ai is permitted to disclose that Customer is one of its customers to any third party at its sole discretion.

Last Updated: October 12, 2021
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