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Software License & Service Agreement

Z21 LABS, INC., DBA OBSERVE.AI
SOFTWARE LICENSE AND SERVICES AGREEMENT
THIS Z21 LABS, INC. DBA OBSERVE.AI SOFTWARE LICENSE AND SERVICES AGREEMENT (“AGREEMENT”) GOVERNS YOUR RIGHTS OF ACCESS AND USE OF THE SOFTWARE SERVICES AND ANY SERVICES MADE AVAILABLE TO YOU BY Z21 LABS, INC. DBA OBSERVE.AI A DELAWARE CORPORATION WITH A PRINCIPAL PLACE OF BUSINESS AT 595 MARKET STREET SUITE, 1130 SAN FRANCISCO, CA 94105 (“OBSERVE.AI”).  

THIS AGREEMENT IS ENTERED INTO BETWEEN OBSERVE.AI AND THE CUSTOMER (DEFINED BELOW) AND IS EFFECTIVE ON THE DATE YOU ASSENT TO THESE TERMS BY EXECUTING AN ORDER REFERENCING THESE TERMS (“EFFECTIVE DATE”). THE CUSTOMER (“CUSTOMER”) SHALL MEAN THE PERSON OR ENTITY LISTED ON ORDER FORM REFERENCING THIS AGREEMENT.  OBSERVE.AI AND CUSTOMER MAY BE REFERRED TO HEREIN AS A “PARTY” AND COLLECTIVELY AS THE “PARTIES”.

IF YOU ARE AN EMPLOYEE OF OR CONSULTANT OR CONTRACTOR OF AN ENTITY NAMED ON THE ORDER FORM, YOUR AGREEMENT TO THESE TERMS WILL BE DEEMED TO BE THE AGREEMENT OF THAT ENTITY. YOU AND THE ENTITY NAMED ON THE ORDER FORM, REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY OR HAVE BEEN PROVIDED THE AUTHORITY TO BIND TO THE TERMS AND CONDITIONS OF THIS AGREEMENT.

OBSERVE.AI IS ONLY WILLING TO LICENSE THE SOFTWARE SERVICES AND DELIVER ANY SERVICES ORDERED UPON THE CONDITION THAT CUSTOMER ACCEPTS ALL THE TERMS CONTAINED HEREIN.  BY USING, DOWNLOADING, AND/OR ACCESS THE SOFTWARE OR SERVICES, THE CUSTOMER INDICATES THAT IT HAS READ AND UNDERSTANDS THIS AGREEMENT AND ACCEPTS ALL OF ITS TERMS.  

IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, THE CUSTOMER WILL NOT BE AUTHORIZED TO USE OR ALLOW ANY USER TO ACCESS OR USE ANY PART OF THE SOFTWARE SERVICES OR SCHEDULE OR ACCEPT ANY SERVICES.  OBSERVE.AI’S LICENSES GRANTED HEREIN AND OBLIGATIONS TO DELIVER ANY SERVICES IS EXPRESSLY CONDITIONAL ON ASSENT TO THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS; IF THESE TERMS ARE CONSIDERED AN OFFER BY THE CUSTOMER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS.  

Definitions

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

Aggregated Anonymous Data” means Customer Content submitted to, collected by, or generated by Observe.ai in connection with Customer’s use of the Software Services, but only in aggregate, anonymized form which can in no way be linked specifically to Customer. 

Affiliates” 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.

“Authorized Reseller” means any authorized reseller of Software Services who validly sells Customer a license to the Software Services subject to the terms and conditions of this Agreement.

Confidential Information” shall mean all information that is identified as confidential at the time of disclosure by the Disclosing Party or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. 

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 Customer Data Processing Addendum found at https://observe.ai/dataprotectionaddendum and incorporated herein by this reference.  

“Documentation”
means all written instructions, user and technical manuals, reference guides, training materials, release notes, installation notes, descriptions, specifications, and any other materials, in paper, 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.

Order Form” means the Observe.ai ordering document (and/or a SOW, if applicable) attached hereto as Exhibit A which specifies the services being provided by Observe.ai and that is governed by this Agreement.  Orders may be direct between Observe.ai and Customer or indirect via an Authorized Reseller.

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 an Order Form.

“Parties" means Observe.ai or Customer and any Customer Affiliate that enters into an order, and "Party" means any of them individually.

“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/privacy-policy  

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 Service” means the Observe.ai Platform Base Software, software-as-a-service offering made generally available and ordered by Customer as set forth in an Order Form.

SOW” shall have the meaning set forth in an Order Form.

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. 

Support Policy” means the Observe.ai Support Policy made available at https://www.observe.ai/service-level-agreement

Taxes” means taxes, levies, duties or similar governmental assessments of any nature, including, for example, any sales, use, GST, value-added, withholding, 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 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 Data) relating to the operation, support and/or about Customer’s use of the Software Service.

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

License Rights & Restrictions

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

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 Observe.ai’s Authorized Reseller (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 Customer’s Users will be for the limited purpose of evaluating the relevant Software and establishing Customer’s desire to purchase licenses to Software or providing any feedback desired; (ii) the Software is provided “As Is” without any warranty or liability by Observe.ai of any kind as further detailed in Section 12 of this Agreement; (iii) Customer will not be entitled to any Support and Maintenance 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 and/or the Authorized Reseller may at any time terminate Customer’s license to the Software by written notice to Customer and require Customer to promptly return such pre-release, beta, evaluation or proof of concept copies of the Software and remove all copies of the Software from its systems.

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 otherwise attempt to discover or obtain the source code, object code or underlying structure, ideas or algorithms of the Software Services documentation or data related to the Software and Subscription 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 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 thereof, in whole or in part; or (vi) use the Software Services in any infringing, defamatory, harmful, fraudulent, illegal, deceptive, threatening, harassing, or obscene way. Customer will use the Software Services in compliance with all applicable laws, regulations and rights.  Customer shall have no rights to any source code for the Software Services.

Third Party Software. Access to the Software Services may require the Customer to install certain Third-Party Software Applications (“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 to the extent such availability and operation is dependent upon 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.  

Customer Responsibilities

Assistance.  Customer shall provide commercially reasonable information and assistance to Observe.ai to enable Observe.ai to deliver the Software Services and will cooperate with Observe.ai 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 Observe.ai may reasonably request.  Customer will also cooperate with Observe.ai in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Software Services.

Compliance with Laws. Customer shall comply with all applicable local, state, national and foreign laws in connection with its use of the Software Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data. 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.

Unauthorized Use. Although Observe.ai has no obligation to monitor the Customer Content (“Customer Content”) provided by Customer 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 any time, for any or no reason, including if Observe.ai receives any notice or claim that any such Customer Content or activities hereunder 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 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 the Customer's access to Software Services in case of illegal violation of this Agreement. Access will then be reactivated if the condition in breach of this Agreement has been permanently resolved. Customer further acknowledges, agrees to and is bound by the Privacy Policy on Observe.ai’s website (as it may be updated from time to time), except to the extent expressly and directly in conflict with the terms hereof.  Customer shall: (a) notify Observe.ai immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, and (b) report to Observe.ai immediately and use reasonable efforts to stop any unauthorized use of the Software Services that is known or suspected by Customer.

License from Customer. Subject to the terms and conditions of this Agreement, Customer shall grant to Observe.ai a limited, non-exclusive and non-transferable license, to copy, store, configure, perform, display and transmit Customer Content solely as necessary to provide the Software Services to Customer.  Customer retains ownership and intellectual property rights in and to its Customer Content. 

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 the Users.

Availability & Support

Availability.  Observe.ai will undertake commercially reasonable efforts to make the Software Services available in accordance with the Service Level Agreement (“SLA”).  Notwithstanding the foregoing, Observe.ai reserves the right to suspend Customer’s access to the Software Services: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Observe.ai.

Support. During a Subscription Term (“Subscription Term) and subject to the terms hereof, Observe.ai will provide reasonable support to Customer for the Software Services in accordance with the SLA.

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 SOW referencing this Agreement. Professional Services will be delivered subject to the terms and conditions of this Agreement and the applicable SOW or Order. Customer may use anything delivered as part of the Professional Services in support of its use of the Software Services during a Term.  For the avoidance of doubt, Observe.ai will not under this Agreement provide Customer with any development or customization of the Observe.ai Base Platform or any Software Services therefore, 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.

Confidentiality

Definition.  Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “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 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 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 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 rightfully 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. The parties agree that Aggregated Anonymous Data (as defined below) is not Confidential Information.

Duties. Customer acknowledges that Observe.ai does not wish to receive any Confidential Information from Customer that is not necessary for Observe.ai to perform its obligations under this Agreement, and, unless the parties specifically agree otherwise, Observe.ai may reasonably presume that any unrelated information received from Customer is not confidential or Confidential Information.  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.

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.  

Return of Information.  Upon termination of this Agreement and upon subsequent written request by the Disclosing Party, the Receiving Party of tangible Confidential Information shall immediately return such information or destroy such information and provide written certification of such destruction, provided that the Receiving Party may permit its legal counsel to retain one archival copy of such information in the event of a subsequent dispute between the Parties.

Intellectual Property Rights

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 Services, including Aggregated Anonymous Data, 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, nontransferable, 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. Customer.  Observe.ai will obtain and process certain content/data provided by or on behalf of Customer Content only to perform its obligations under this Agreement. 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, sole ownership of) all Customer Content distributed through the Software Services and the intellectual property rights with respect to that Customer Content.  Notwithstanding 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, and (c) generating Aggregated Anonymous Data, and (d) freely retain, use and make available Aggregated Anonymous Data for Observe.ai’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Observe.ai’s products and services).

Indemnification

By Customer.  Customer will indemnify and hold harmless Observe.ai, its employees, affiliates, contractors agents or other representatives (each, a “Observe.ai Indemnitee”) from and against any damages, losses, liabilities, 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 this Agreement or otherwise from Customer Content or Customer’s use of the Software Services.  

By Observe.ai.
  Observe.ai will indemnify and hold harmless Customer, its employees, affiliates, contractors agents or other representatives (each, a “Customer Indemnitee”) from and against any damages, losses, liabilities, 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 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 by Observe.ai, (ii) resulting in whole or in part in accordance from Customer specifications, (iii) that are modified after delivery by Customer, (iv) combined by Customer 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 is not strictly in accordance with this Agreement and all related 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 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 hereunder): (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).

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 wrongdoing 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.

Payment of Fees

Orders.  Customer may place Orders either with Observe.ai or an Authorized Reseller.  All Software Services acquired by Customer shall be governed exclusively by this Agreement and the applicable Order Form.  Customer will pay Observe.ai the applicable fees as set forth on the Order Form (the “Fees”). 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, or if Customer or Observe.ai learns that Customer’s actual usage (“Actual Usage”) exceeds the relevant License Parameters paid for by Customer (“Purchased Usage”), then Customer will as applicable notify Observe.ai (or the Authorized Reseller) and pay the incremental Fees due, and after the relevant Order Form is placed, the relevant License Parameters will be deemed amended to reflect this purchase.  Within thirty (30) days of Observe.ai’s or its Authorized Reseller’s written request, Customer will provide Observe.ai or its Authorized Reseller (as relevant) a report, which report will identify usage required to show compliance with the License Parameters identified in this Agreement and in the Order Form.  In order to verify compliance with this Agreement or to verify the report provided under this Agreement, within thirty (30) days’ of Observe.ai’s written request to Customer, which request will not be made more than once per calendar quarter, Customer will provide Observe.ai access to the relevant systems, records and/or product usage logs generated by the Software Services in order to show compliance with the License Parameters.  Observe.ai and/or its Authorized Resellers may invoice Customer if it learns that the Actual Usage is above the Purchased Usage.  Unless otherwise mutually agreed in writing, the Fees charged to Customer for the additional usage during the Subscription Term will be based on the then-current pricing charged to the Customer in the relevant Order Form 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.

Invoicing and Payment Terms.  If the Order is placed indirectly through an Authorized Reseller, then the Order entered into with the Authorized Reseller will identify the fees due and payment terms.  If the Order is entered into directly with Observe.ai and not through an Authorized Reseller, then, unless otherwise agreed in the Order Form and to the extent applicable, Customer will pay Observe.ai for additional services, such as integration fees or other Professional Services fees.  All payments will be made in accordance with the invoice schedule set forth in the Order Form.  If not otherwise specified, payments will be due within thirty (30) days of invoice date and are nonrefundable. Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever 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 (excluding US taxes based on Observe.ai's net income) unless Customer has provided Observe.ai with a valid exemption certificate.  In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Observe.ai on account thereof.

Taxes. Customer is responsible for paying all Taxes (“Taxes”) associated with its purchases hereunder including without limitation all use or access of the Software Service by its Users. If Observe.ai has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, Observe.ai will invoice Customer and Customer will pay that amount unless Customer provides Observe.ai with a valid tax exemption certificate authorized by the appropriate taxing authority. Taxes will not be deducted from payments to Observe.ai, 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 receives and retains (free from any liability for Taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. Upon Observe.ai’s request, Customer will provide to Observe.ai its proof of withholding 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, 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. Customer shall not be liable for taxes based on Observe.ai’s or Authorized Reseller’s net income.

Terms & Termination

Term. The Term (“Term”) of this Agreement shall begin on the Effective Date and shall continue until terminated by either Party as outlined in this Section.

Renewal Term.
At the expiration of the initial subscription Term, Customer may continue to receive Software Services in one (1) year increments under Observe.ai’s then current Fees and policies.  If Customer elects not to renew, Customer shall notify Observe.ai of its intent not to renew at least sixty (60) days prior to the end of the applicable Term.

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 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. 

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 a payment, (b) if Observe.ai deems such suspension necessary as a result of Customer’s breach of Sections 1.2 (Rights of Use) or 2.3 (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.

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 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 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 shall immediately repay to Customer all pre-paid amounts for any unperformed Software Services scheduled to be delivered after the termination date.

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. 

Client 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 noncompliance.

Warranties

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, and (ii) this Agreement does not contravene, violate or conflict with any other agreement of the Party with any third party.  

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 Fee paid by Customer for the affected Observe.ai Technology.  

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.  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 nonconforming 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.  

Warranty Limitations. 
The express warranties in this Agreement do not apply if the applicable Software Services: (i) has been altered, except by Observe.ai or its authorized representatives or its contractors; (ii) has not been used, installed, operated, repaired, or maintained in accordance with this Agreement and/or Documentation; or (iii) is 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.

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, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.

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 INABILITY TO USE 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 OBSERVE.AI, 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 PAID TO OBSERVE.AI OR AUTHORIZED RESELLER UNDER THE RELEVANT ORDER IN THE TWELVE-MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED.  THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, BUT WILL NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS OR CONFIDENTIALITY OBLIGATIONS HEREUNDER, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

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.

Licensing Parameter Rights

Observe.ai reserves the right, upon prior notice to Customer, to audit Usage Data of the Software Services to verify Customer’s compliance with the terms of this Agreement. If Observe.ai determines as a result of such audit that any fees are due from Customer to Observe.ai under the terms of this Agreement, Customer shall immediately pay such amounts due along with interest in an amount equal to one and one-half percent (1.5%) of the underpayment, or at the highest interest rate permitted by applicable law, whichever is less, calculated monthly from the date the underpayment was due until the date payment is made; and if such amount exceeds five percent (5%) of the cumulative license fees previously paid under this Agreement, Customer shall reimburse Observe.ai for the reasonable cost of such audit.

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 Services or any software or anything related thereto or any direct product thereof (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 Service is 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.

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 whatsoever.  In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.  All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid.  Observe.ai will not be liable for any loss resulting from a cause over which it does not have direct control. 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.

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