1.1 Services.

Subject to the terms of this Agreement, Simbian will use commercially reasonable efforts to provide Customer the Services. As part of the registration process, Customer will identify at least one administrative username and password for Customer's Simbian account.

1.2 Support.

Subject to the terms hereof, Simbian will provide Customer with the Services and reasonable technical support services during Simbian's standard business hours and adhere to the service and support obligations set forth in the Service Level Agreement found at https://simbian.ai/legal/sla which are incorporated into this Agreement by reference.

1.3 License Grant.

To the extent Simbian delivers to Customer any software, documentation or data related to the Services (“Software”), Simbian grants to Customer a nonexclusive, irrevocable, worldwide right and license, during the Term, to access, install, if necessary, use, execute, store, perform and display such Software and its documentation required to permit Customer to make full and proper use of the Services.

1.4 Free Trial.

During any free trial period (as specified on an Order Form), Customer may access and use the Services provided by Simbian solely for Customer's internal evaluation purposes, subject to the terms and conditions set forth herein. The free trial shall commence upon the activation of the Customer's account and shall continue for the duration specified by Simbian (including on the Order Form). Upon expiration of the free trial period, unless otherwise agreed upon by the parties, Customer's access to the Services will be terminated unless Customer and Simbian enter into an Order Form to subscribe to a paid plan. Notwithstanding anything else, Simbian reserves the right to modify or terminate the free trial at any time without prior notice. Simbian's obligations under Section 1.2 will not apply during any free trial period.

2.1 General Restrictions.

Customer shall use commercially reasonable efforts to prevent unauthorized access to or use of the Services and notify Simbian promptly of any such unauthorized access or use. Customer shall not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any Software (except to the extent such restriction is prohibited by applicable law); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Simbian or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels. Customer shall not (a) sell, resell, rent or lease the Services or any Services Data (as defined below), (b) modify, make derivative works of, disassemble, reverse compile, reverse engineer, or subvert the intrinsic security of any part of the Services or Services Data for any purpose including without limitation discovering individual Customer Data or re-identifying anonymous data, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (f) access or use the Services in order to build a similar or competitive product or Services, (g) disclose any review, benchmarking or comparative study of the Services or Services Data to any third party without Simbian's prior written approval, (h) post, transmit, link to, or otherwise distribute any inappropriate, profane, defamatory, obscene, indecent or unlawful material or information, or (i) attempt to gain unauthorized access to the Services or Services Data or their related systems or networks. Except as expressly stated herein, no part of the Services or Services Data may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means to, including but not limited to electronic, mechanical, photocopying, recording, or other means. Customer shall make every reasonable effort to prevent unauthorized third parties from accessing the Services and Services Data and notify Simbian promptly of any such unauthorized access or use. Customer shall not use any information obtained from the Services (“Services Data”), for the purpose of creating, developing, enhancing, or improving any products, services, or offerings of its own or those of any third party without the express written consent of Simbian. As between the parties, Simbian retains all right, title and interest in and to the Services Data, and no right or license to the Services Data is granted to Customer except as expressly provided herein. Any unauthorized use or disclosure of Services Data is strictly prohibited and may result in immediate termination of access to the Services and pursuit of legal remedies by Simbian. All restrictions and obligations of Customer herein relating to the Services shall also apply to the Services Data.

2.2 Use of AI Results.

Customer shall not use the data and content generated by the AI through your use of the Service (“AI Results”) for any purpose that violates applicable laws or regulations, or in any manner that infringes on the rights of any third party. Customer shall not sell, resell, license, sublicense, distribute, or otherwise make the AI Results available to third parties without prior written consent from Simbian.

2.3 Compliance with Applicable Laws.

Customer represents, covenants, and warrants that Customer will use the Services only in compliance with applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Simbian against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys' fees) in connection with any claim or action that arises from an alleged violation of this Section 2 or otherwise from Customer's use of Services. Although Simbian has no obligation to monitor Customer's use of the Services, Simbian may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of this Section 2.

2.4 Third Party Equipment.

Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer's knowledge or consent.

2.5 Suspension.

Simbian may suspend provision of the Services if: (a) the Services are being used in material violation of this Agreement, (b) suspension of the Services is necessary to protect Simbian's network or Simbian's other customers, (c) the use of the Services by Customer may expose Simbian or its affiliates to liability, or (d) suspension is required by law.

3.1 Obligations and Exclusions.

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party's business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Simbian includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of Customer includes non-public data provided by Customer to Simbian to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document: (a) is or becomes generally available to the public, or (b) was in its possession or known by it 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 Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law. If the Receiving Party is compelled by law to disclose Proprietary Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party's Proprietary Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Proprietary Information.

3.2 Proprietary Rights.

Customer shall own all right, title and interest in and to the Customer Data. Simbian shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with any additional services or support, (c) any data that is based on or derived from the Customer Data and provided to Customer as part of the Services, and (d) all intellectual property rights related to any of the foregoing.

3.3 AI-Generated Results.

The AI Results are owned by Simbian. Customer is granted a non-exclusive, non-transferable license to use the AI Results for its internal business purposes. Simbian retains the right to use and commercialize the AI Results in any manner.

3.4 Service Improvements.

Notwithstanding anything to the contrary, Simbian shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Simbian will be free (during and after the term hereof) to: (a) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Simbian offerings, and (b) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein. Simbian shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the operation of the Services.

3.5 Publicity.

Customer agrees that Simbian has the right to reveal the fact that Customer is using the Services, including by displaying Customer's name and logo in Simbian's website and other marketing materials.

4.1 Fees.

Customer will pay Simbian the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). Simbian reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Simbian has billed Customer incorrectly, Customer must contact Simbian no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Simbian's customer support department. All fees under this Agreement are nonrefundable except as otherwise set forth herein.

4.2 Payment Terms.

Simbian may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Simbian thirty (30) days after the mailing date of the invoice (excluding amounts under reasonable and good faith dispute). If any amounts are withheld by Customer, Customer shall, within 15 days of receipt of the applicable invoice (the “Dispute Period”), provide Simbian a reasonably detailed written explanation of the nature of the dispute, which explanation shall set forth the dollar amounts withheld and the reasons for withholding such amounts. If Customer does not dispute the applicable invoice during the Dispute Period, any such dispute shall be deemed waived. For clarity, Customer remains obligated to pay Simbian for all portions of the applicable invoice that are not under reasonable and good faith dispute. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Services. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Simbian's net income.

4.3 Taxes.

The Fees and any other amounts due are exclusive of any export, withholding, federal, state and local taxes, duties or excises. If Simbian pays any such taxes, duties or excises, Customer shall reimburse Simbian for such taxes, duties or excises, other than taxes on Simbian's net income.

5.1 Term.

Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

5.2 Termination for Cause.

In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days' notice (or without notice in the case of nonpayment), as follows:

• (i) if the other party materially breaches any of the terms or conditions of this Agreement; or
• (ii) if the other Party (i) makes a general assignment for the benefit of creditors, (ii) admits in writing its inability to pay debts as they come due, (iii) voluntarily files a petition or similar document initiating any bankruptcy or reorganization proceeding, or (iv) involuntarily becomes the subject of a petition in bankruptcy or reorganization proceeding and such proceeding shall not have been dismissed or stayed within one hundred twenty (120) days after such filing.

Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Simbian will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Simbian may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

6.1 Warranties.

Each party represents and warrants that: (a) it is duly organized, validly existing, and in good standing under the laws of the jurisdiction of its incorporation or organization; (b) it has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder; (c) this Agreement constitutes its valid and binding obligation, enforceable against it in accordance with its terms; (d) the execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby will not conflict with or result in any breach of any license, contract, agreement, or other instrument or obligation to which it is a party or by which it may be bound; and (e) it will comply with all applicable laws, rules, and regulations in the performance of this Agreement, including, without limitation, all applicable privacy and data protection laws.

6.2 Disclaimers.

9.1 Independent Contractors.

The relationship between the parties established under this Agreement is that of independent contractors, and 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 Simbian in any respect whatsoever.

9.2 Severability; Entire Agreement.

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. Notwithstanding any language to the contrary therein, no terms stated in a purchase order or in any other order document (other than an Order Form or other mutually executed order document expressly incorporated herein) shall be incorporated into this Agreement, and all such terms shall be void.

9.3 Modification.

Simbian reserves the right to alter the terms of this Agreement at any time. Customer's sole remedy should Customer not agree with the altered Agreement shall be to cease Customer's use of the Services and to comply with Customer's termination obligations outlined in Section 5 of this Agreement.

9.4 Assignment.

This Agreement is not assignable, transferable, or sublicensable by Customer except with Simbian's prior written consent. Simbian may transfer and assign its rights and obligations under this Agreement without consent. This Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns.

9.5 Attorney's Fees.

In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys' fees.

9.6 Notices.

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; the day after it is sent, if sent for next day delivery by a recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

9.7 Governing Law and Venue.

This Agreement is governed by and will be construed in accordance with the laws of the State of California, without regard to conflict of law principles. The parties acknowledge and agree that this Agreement relates solely to the performance of services (not the sale of goods) and, accordingly, will not be governed by the Uniform Commercial Code. In addition, the provisions of the Uniform Computerized Information Transaction Act and United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement. All Services are provided hereunder are “commercial items” as that term is defined in the Federal Acquisition Regulation (FAR) at 48 C.F.R. 2.101. In addition, any Software covered under this Agreement is also “commercial items” as that term is defined at 48 C.F.R. 2.101; consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Supported Software and any other software and documentation covered under this Agreement with only those rights set forth herein. Any legal action or proceeding arising under this Agreement will be brought exclusively in the state or federal courts located in San Francisco County, California, and the parties expressly consent to personal jurisdiction and venue therein.

9.8 Compliance with Export Laws.

Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof 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.

9.9 Force Majeure.

Except for the obligation to pay sums due hereunder, neither party will be liable to the other for any delay or failure to perform due to causes beyond its reasonable control.

9.10 Disputes.

If a dispute should arise between the parties relating to the Agreement, the parties shall promptly hold a meeting, attended by persons with decision-making authority regarding the dispute, in an attempt in good faith to negotiate a resolution of the dispute; provided, however, that no such meeting shall be deemed to reduce the obligations and liabilities of the parties or be deemed a waiver by either party hereto of any remedies to which such party would otherwise be entitled. If the dispute is not resolved within thirty (30) days after the commencement of negotiations, or if no negotiations are commenced within sixty (60) days after one party notifies the other party of such dispute, then either party may initiate litigation per the terms of this Agreement.

9.11 Anticorruption Laws.

Customer acknowledges that it is familiar with and understands the provisions of the U.S. Foreign Corrupt Practices Act (the “FCPA”) and the U.K. Bribery Act of 2010 (“UKBA”) and agrees to comply with its terms as well as any provisions of local law related thereto. Customer further understands the provisions relating to the FCPA and UKBA's prohibitions regarding the payment or giving of anything of value, including but not limited to payments, gifts, travel, entertainment and meals, either directly or indirectly, to an official of a foreign government or political party for the purpose of influencing an act or decision in his or her official capacity or inducing the official to use his or her party's influence with that government, to obtain or retain business involving the Services. Customer agrees to not violate or knowingly let anyone violate the FCPA or UKBA, and Customer agrees that no payment it makes will constitute a bribe, influence payment, kickback, rebate, or other payment that violates the FCPA, the UKBA, or any other applicable anticorruption or antibribery law.