Overview

THIS IS A LEGAL AGREEMENT BETWEEN OCTONIUS CORPORATION AND CUSTOMER (EACH, AS DEFINED BELOW). OCTONIUS AND CUSTOMER MAY EACH BE REFERRED TO AS A “PARTY” AND, COLLECTIVELY, AS THE “PARTIES”. BY ACCESSING OR USING, OR BOTH, THE SERVICES, CUSTOMER AGREES, ON BEHALF OF ITSELF OR ANY LEGAL ENTITY IT REPRESENTS, TO BE BOUND BY THE TERMS OF THIS AGREEMENT.

1. DEFINITIONS

As used in this Agreement, the following defined terms shall apply:

1.1. “Affiliate” means, with respect to a Party, any entity or individual that directly or indirectly controls, is controlled by, or is under common control with such Party, where “control” means the power, directly or indirectly, to direct, or to cause the direction of, the management and policies of such Party, whether through the ownership of voting securities, by contract, or otherwise.

1.2. “Agreement” means this Agreement and any other documents incorporated herein by reference.

1.3. “Customer” means the legal entity or individual that has ordered, accessed, or used, or any combination thereof, any Services from Octonius.

1.4. “Customer Account” means an account for Customer that is required to access and use the Services.

1.5. “Customer Data” means all data or information submitted by or on behalf of Customer to the Services, including Octonius AI Output, but does not include Aggregated Anonymous Data (as defined below).

1.6. “Fees” means all Octonius fees and charges applicable to the Services.

1.7. “Octonius” means Octonius Corporation, a Delaware corporation.

1.8. “Octonius AI” means any feature(s) or functionality made available by Octonius that utilize artificial intelligence trained by machine learning using Octonius or third-party data models, or both, which may be labeled as Octonius AI.

1.9. “Octonius AI Output” means output generated by Octonius AI and presented back to the Customer as a result of using the Services based on Customer Data provided as input to Octonius AI.

1.10. “Octonius Marks” means any name, logo, or mark belonging to Octonius or its Affiliates.

1.11. “Octonius Materials” means any material(s) that Octonius provides to Customer as part of, or in the course of providing, the Services or the consulting services, provided that Customer Data presented back to the Customer as a result of using the Services (which shall remain Customer Data) and Octonius AI Output are not Octonius Materials.

1.12. “Open-Source Software” means third-party software distributed by Octonius under an open-source licensing model (e.g., the GNU General Public License, BSD, or a license similar to those approved by the Open Source Initiative).

1.13. “Order” means any initial or subsequent ordering document, auto-renewal (if applicable and Customer has not provided timely notice of non-renewal), online request by Customer for access to the Services, or any of the foregoing, submitted to Octonius, directly or indirectly.

1.14. “PHI” means personal health information covered by US HIPAA regulations. Customer may not upload PHI as Customer Data without the express, separate written consent of Octonius.

1.15. “Services” means the Software-as-a-Service (“SaaS”) offerings inclusive of any services delivered by Octonius through any unified, hosted, Octonius service-delivery platform, including any on-premises components (e.g., client software, tools), and Updates, all as further described in the Services Descriptions, as well as technical-support services. Octonius may update the Services with Updates at any time in its sole discretion. Services are of an electronic nature delivered remotely via a technology infrastructure and with minimal or no human intervention.

1.16. “Services Descriptions” means the overview of and other terms applicable to the Services, as amended from time to time, as found in the Services documentation.

1.17. “Subscription” means Customer’s paid subscription to the Services pursuant to the applicable Order or Order Form (as defined below).

1.18. “Subscription Term” means the then-current initial term or renewal term of the applicable Subscription during which Customer’s Users are authorized to use or access the Services pursuant to the terms set forth in this Agreement, unless earlier terminated as set forth in Section 4 below.

1.19. “Taxes” means all applicable taxes on Services (including but not limited to withholding tax, sales tax, services tax, value-added tax (VAT), goods and services tax (GST), tariffs, or duties) imposed by any government entity or collecting agency based on the Services.

1.20. “Updates” means any corrections, bug fixes, features, or functions added to or removed from the Services but shall not include any new Service(s) not generally included with the Services purchased by Customer.

1.21. “User” means an individual that is authorized by Customer to access the Services through Customer’s assignment of a single user ID. Users may include Customer’s or Customer’s Affiliates’ employees, representatives, and agents.

2. RIGHTS AND LIMITATIONS ON USE

2.1. Right to Use Services for Business. Subject to these terms, Octonius, with the assistance of Octonius third-party service providers including its subcontractors and Affiliates, will provide Services set forth in any Order Form or Order that Octonius has accepted in accordance with this Agreement. Octonius hereby grants Customer a limited, personal, non-exclusive, non-sublicensable, non-transferable worldwide license to use the Services up to the number of Users purchased for the applicable Subscription or as otherwise authorized to use or access the Services pursuant to the terms set forth in this Agreement. Technical support for the Services is provided as set forth at https://octonius.com/faqs-1, as may be amended from time to time without notice. Updates to the Services are managed by Octonius and included in the Fees. Customer shall use the then-current version of the Services, including any Updates, as made available by Octonius. To the extent that Customer’s Affiliates use the Services, Customer warrants that it has the authority to bind those Affiliates and that Customer will be liable to Octonius in the event any Customer Affiliate fails to comply with this Agreement. Customer may purchase Octonius consulting services in support of its Subscription. With respect to Octonius consulting services, all intellectual property rights in all deliverables, pre-existing works, and derivative works of such pre-existing works, as well as developments made, conceived, created, discovered, invented, or reduced to practice in the performance of the consulting services are and shall remain the sole and absolute property of Octonius, subject to a worldwide, non-exclusive license to Customer for internal use during the Subscription Term. At its sole discretion, Octonius may modify or discontinue any part of the Services (including without limitation, the availability of any feature) at any time.

2.2. Limitations on Use. Except to the extent permitted by applicable law, Customer and its Users shall not (a) modify, copy, display, republish, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, decompile, or attempt to decipher any code relating to the Services or Octonius technology, or both; (b) modify, copy, or create derivative works of any Octonius Materials; (c) knowingly or negligently access or use the Services in a manner that abuses or disrupts the Octonius networks, security systems, customer accounts, or Services of Octonius or any third party, or attempt to gain unauthorized access to any of the above through unauthorized means; (d) transmit through or post on the Services any material that is deemed abusive, harassing, obscene, slanderous, fraudulent, libelous, or otherwise unlawful or tortious, including material harmful to children or violative of third-party privacy rights; (e) market, offer to sell, or resell the Services, or any combination of the foregoing, without Octonius’ prior written authorization (but the Services may be used by Customer in support of Customer’s proprietary service offering(s)); (f) if Customer is an Octonius competitor for the relevant Services, use the Services directly or indirectly for competitive benchmarking or other competitive analysis; (g) allow User licenses to be shared or used for any purpose by more than one individual (except that User licenses may be reassigned to new Users replacing individuals who no longer use or access the Services through a Customer Account); (h) probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measure; (i) access or search the Services by any means other than Octonius’ publicly supported interfaces (e.g., “scraping”); (j) impersonate another person or entity, or misrepresent an affiliation with a person or entity (e.g., “spoofing” or “phishing”); (k) send unsolicited communications, promotions, advertisements, or spam by using or in connection with the Services; (l) upload any PHI to portions of the Services not designated by Octonius as suitable for PHI; (m) provide Customer Data or attempt to generate Octonius AI Output through Octonius AI that consists of any sensitive or regulated information, including PHI, health, genetic, biometric record or data in general, government-issued identification numbers of any kind, or personal financial or bank account information; (n) use Octonius AI to develop foundation models or other large-scale models that compete with Octonius or Octonius AI; (o) mislead any person that Octonius AI Output was solely human-generated; (p) use Octonius AI to generate spam or content for dissemination in electoral campaigns; or (q) use Octonius AI in a manner that violates any technical documentation, usage guidelines, or parameters.

2.3. Inappropriate Content. Neither Customer nor its Users may post any Customer Data on the Services or otherwise make use of the Services in a manner that: (a) violates any applicable law (including export control laws and regulations), Octonius’ or any third party’s intellectual property rights, or anyone’s right of privacy or publicity; (b) is deceptive, fraudulent, illegal, obscene, defamatory, disparaging, libelous, threatening, or pornographic; (c) constitutes hate speech, harassment, or stalking; (d) criticizes, berates, or attacks others based on their race, ethnicity, national origin, religion, sex, gender, sexual orientation, disability, or medical condition; (e) contains any personal information of minors under the age of 16; (f) sends or stores information deemed “sensitive” or “special” under applicable law, including but not limited to financial account information, social security numbers, government-issued identification numbers, health information, biometric or genetic information, personal information collected from children under the age of 16, geo-location information of individuals, or information about an individual’s racial or ethnic origin, trade union membership, sex life or sexual orientation, political opinions, or religious or philosophical beliefs; (g) contains viruses, bots, worms, or similar harmful materials; or (h) contains any information that Customer does not have a right to make available under law or any contractual or fiduciary duty, or could otherwise cause damage to Octonius or any third party.

2.4. Violations of Limitations on Use. If Customer becomes aware or receives notice from Octonius or a third party that any Customer Data or any User’s access to or use of Customer Data violates Section 2.2 or Section 2.3, Customer must take immediate action to remove the applicable part of the Customer Data or suspend the User’s access to the Services, or both, as applicable. Octonius may ask Customer to remediate such violation and, if Customer fails to comply with such request, Octonius may suspend or terminate the User’s access to the Services or suspend Customer’s access to the Services, or both, pursuant to Section 8.8.

2.5. Proprietary Rights. Except for the limited use rights expressly granted herein, Customer has no right, title, or interest in or to the Services, Octonius Materials, Octonius AI, or any other Octonius technology, including Octonius Marks or any intellectual property rights related thereto.

2.6. Open-Source Software. Notwithstanding anything to the contrary in this Agreement, Customer’s and its Users’ rights with respect to their use of Open-Source Software are governed exclusively by the applicable open-source license(s), not this Agreement.

3. FREE TRIALS, ORDERS, FEES, PAYMENT, AND FREE CUSTOMER ACCOUNTS

3.1. Free Trials. New Octonius customers are eligible to participate in a free trial. The free trial starts when a Customer creates a Customer Account and ends upon the later of (a) fourteen (14) days from the free trial start date, and (b) a date agreed upon by Octonius in its sole discretion. During the free trial, certain Services and features may not be available. At any time during the free trial, a Customer may convert its free trial Customer Account into a paid Subscription by clicking the “Subscription” button within the Octonius console. Customer’s continued use of the Services after upgrading to a paid Subscription is subject to its ongoing compliance with this Agreement, and any free trial terms and conditions shall no longer apply. Customer can view the specific details of its Services plan by referencing the “Billing” option in the app, available after logging into the Services. Customer might not receive notice or confirmation from Octonius that the free trial has ended or that the paid Subscription has begun.

3.2. General Terms and Billing. Octonius will bill and Customer agrees to pay Fees at the beginning and upon renewal of its Subscription, plus any applicable Taxes, unless and until Customer timely cancels its Subscription or Octonius terminates it. The Subscription will automatically renew for successive Subscription Terms unless either Party provides written notice of its intent not to renew prior to the expiration of the then-current Subscription Term. Octonius may increase the Fees due under the applicable Order or Order Form for the applicable renewal term (if any) by providing notice to Customer of such increase at least sixty (60) days before the commencement of the upcoming renewal term. Customer must cancel its Subscription before the Subscription renews to avoid incurring the next Subscription Term’s Fees. Fees may include Services level changes as requested by Customer. Octonius will automatically bill Customer for each renewal period on the calendar day corresponding to the commencement of its Subscription. If Customer elects to upgrade its Services level or otherwise add any paid component or feature, Octonius will prorate the amount due based on the number of days remaining in Customer’s billing cycle; provided, however, that any such proration shall be based on Customer’s Services level or paid components or features in existence immediately prior to Customer’s election to upgrade or add paid components or features. If Customer downgrades its Services level, Customer may cause the loss of Customer Data or features for its Customer Account; Customer agrees Octonius shall not be liable for any such losses. Except to the extent required by applicable law, all purchases are final and OCTONIUS DOES NOT PROVIDE REFUNDS OR CREDITS FOR ANY PARTIAL OR UNUSED SUBSCRIPTION PERIODS, OR WHERE CUSTOMER HAS ELECTED TO DOWNGRADE SERVICES LEVELS OR OTHERWISE REMOVED ANY PAID COMPONENT OR FEATURE, OR FOR ANY FEATURE OR COMPONENT THAT CUSTOMER HAS PAID FOR BUT NOT USED.

3.3. Fee Increase Grace Period. Octonius may, in its sole discretion, offer a grace period during which Customer’s Fees will not increase for a certain period of time. If Customer does not accept the increase or addition to the existing Fees, Customer may elect to terminate its Subscription during the then-current billing period and Customer shall not be liable for such Fee increase after the applicable billing period; however, any later renewal of the Subscription will be subject to the increased Fees. If Customer’s credit or debit card used to pay the Fees reaches its expiration date, Customer’s continued use of the Services constitutes its authorization for Octonius to continue billing Customer, and Customer remains responsible for any uncollected amounts.

3.4. Free Customer Accounts. Customer may cancel its Subscription at any time and cancellation will be effective immediately. Customer agrees that, after termination or expiration of its Subscription, its Customer Account will be converted to a free Customer Account (if available for the particular terminated or expired Subscription).

3.5. Taxes. In connection with the purchase or use, or both, of the Services, Customer may be subject to Taxes, by any authority which has jurisdiction to impose such Taxes. Customer agrees that Customer is solely responsible for its obligation and payment of any such Taxes, and Customer agrees, unless otherwise required by applicable law, to indemnify Octonius to the extent that Octonius incurs any obligations or other liabilities in connection with such Taxes. Octonius’ failure to charge appropriate Taxes due to incomplete or incorrect information provided by Customer will not relieve Customer of its obligations under this Section 3.5.

3.6. Fees Payment. If Customer makes any payment via credit card, foreign currency, or wire transfer, all associated credit-card fees, currency-exchange fees, and outgoing and incoming bank fees, including, without limitation, Customer’s bank fees and Octonius’ bank fees, (collectively with credit-card fees and currency-exchange fees, “Payment Fees”) shall be Customer’s responsibility and shall be recoverable by Octonius from Customer. Customer may include such Payment Fees at the time of the payment to Octonius. However, if such Payment Fees are not included by Customer at the time of payment to Octonius, then Octonius shall be entitled to full reimbursement of such Payment Fees from Customer within sixty (60) days of any applicable payment initiated by Customer.

4. TERM AND TERMINATION

Octonius may, with or without prior notice, immediately terminate the Customer’s Account, Subscription, Subscription Term, or access to the Services, or any combination of the foregoing. Such termination may be made in Octonius’ sole and absolute discretion, with or without cause. Customer agrees that Octonius shall not be liable to Customer or any third party for any termination of its Customer Account, Subscription, Subscription Term, or access to the Services, or any combination of the foregoing.

5. CUSTOMER DATA AND ACCOUNT

5.1. Customer Data. Customer retains all rights to any and all of its Customer Data, subject to a non-exclusive, transferable, sublicensable, worldwide, royalty-free license to Octonius as necessary to provide the Services hereunder. Each Party shall apply reasonable technical, organizational, and administrative security measures, as appropriate relative to the Services, to keep Customer Data protected in accordance with industry standards, including those identified in Section 8.7 for Octonius. If Octonius reasonably believes a problem with the Services may be attributable to Customer Data or Customer’s use of the Services, Customer shall fully cooperate with Octonius to identify the source of and resolve the problem. Customer shall comply with all intellectual property laws and obligations related to the Customer Data, as well as all legal duties applicable to Customer by virtue of using the Services, including providing all required information and notices and obtaining all required consents. This Agreement states Octonius’ exclusive obligations with respect to care of Customer Data. Octonius will automatically delete any remaining Customer Data and Customer Account after such free account has been inactive for one-hundred-eighty (180) days. Customer must download Customer Data, if desired, prior to deletion by Octonius as stated herein.

When Customer uses Octonius AI, Octonius Output shall be Customer Data for purposes of this Agreement. Customer acknowledges that, due to the nature of machine learning and the technology powering Octonius AI features, Octonius AI Output may not be unique and Octonius AI may generate the same or similar output to Octonius or a third party. Customer will not provide input or attempt to generate Octonius AI Output through Octonius AI that consists of any sensitive or regulated information, including (a) PHI or health, genetic, biometric record, or data in general; (b) government-issued identification numbers of any kind; or (c) personal financial or bank account information. Notwithstanding anything to the contrary in this Agreement, Customer agrees that, as between Customer and Octonius, Octonius retains ownership of all legal rights, title, and interest in and to Octonius AI, including all intellectual property rights, and except for the license provided herein, no other rights or permissions to Octonius AI is granted.

5.2. Customer Account. Customer is solely responsible for (a) the configuration of its Customer Account; (b) the operation, performance, and security of Customer’s equipment, networks, and other computing resources used to connect to the Services; (c) ensuring all Users exit or log off from the Services at the end of each session in accordance with Customer’s session policy; (d) maintaining the confidentiality of a Customer Account, User IDs, conference codes, passwords or personal identification numbers, or any combination of the foregoing, used in conjunction with the Services, including not sharing login information among Users; and (e) all uses of the Services that occur using Customer’s password or Account. Customer will notify Octonius immediately of any unauthorized use of its Customer Account or any other breach of security relating to Customer’s use of the Services. Customer will be liable for losses, damages, liability, expenses, and attorneys’ fees incurred by Octonius or a third party due to someone other than a User using a Customer Account. Ownership of a Customer Account is directly linked to the individual or entity that completes the registration process for such Customer Account. Customer acknowledges that Octonius will rely on the information provided by Customer to resolve issues arising with the Customer Account.

5.3. Customer Account Access/Instructions. The Customer Account owner and any authorized Users will have access to information in the Customer Account, subject to the account’s sharing settings in the “Administration” menu in the app. Octonius will not provide access to any other person or entity at any time, except with the Customer Account owner’s prior consent. Customer agrees that Octonius may rely on instructions given by the Customer Account owner either through the Account dashboard or via email from the address on file with Octonius for the Customer Account owner. Customer agrees not to request access to or information about an account that is not owned by the Customer. In the event of a dispute regarding Customer Account data, Octonius will only release information to persons other than the Customer Account owner pursuant to a court order or other notarized waiver and release as determined by Octonius. Customer is solely liable and responsible for understanding the settings, privileges, and controls for the Services and for controlling whom Customer permits to become a User and the settings and privileges for such User, including, without limitation, the right for a User to invite other Users (either paid or unpaid) to use Customer’s Services, the right to incur charges on the Customer Account, and the right to access, modify, or share tasks or projects, etc. Customer is responsible for the activities of all of its Users, including orders they may place and how Users use the Customer Data, even if those Users are not from Customer’s organization or domain.

6. WARRANTIES, WARRANTY DISCLAIMER, AND INDEMNIFICATION

6.1. OCTONIUS WARRANTS THAT THE SERVICES WILL MATERIALLY CONFORM TO THE SERVICES DESCRIPTIONS. OCTONIUS’ ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY UNDER THIS WARRANTY WILL BE, IN OCTONIUS’ SOLE DISCRETION AND SUBJECT TO APPLICABLE LAW, FOR OCTONIUS TO PROVIDE CONFORMING SERVICES OR TO TERMINATE THE NON-CONFORMING SERVICES, PROVIDE A PRORATED REFUND OF ANY UNUSED PREPAID FEES FROM THE PERIOD OF NON-CONFORMANCE, AND PROVIDE RELIEF FROM ANY SUBSEQUENT PAYMENTS DUE WITH RESPECT TO SUCH NON-CONFORMING SERVICES. OCTONIUS SHALL PROVIDE CONSULTING SERVICES, IF PURCHASED, IN A PROFESSIONAL AND WORKMANLIKE MANNER. OCTONIUS’ ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDY UNDER THIS WARRANTY REGARDING CONSULTING SERVICES IS OCTONIUS’ RE-PERFORMANCE OF THE CONSULTING SERVICES OR, IF RE-PERFORMANCE IS NOT POSSIBLE OR CONFORMING, THEN OCTONIUS SHALL REFUND THE AMOUNT PAID FOR THE NON-CONFORMING CONSULTING SERVICES.

6.2. THE FOREGOING LIMITED WARRANTY DOES NOT COVER PROBLEMS ARISING BY ACCIDENT OR ABUSE OR USE OF THE SERVICES IN A MANNER INCONSISTENT WITH THIS AGREEMENT OR RESULTING FROM EVENTS BEYOND OCTONIUS’ REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, UNAVAILABILITY OF THE SERVICES OR USE OF THE SERVICES IN COMBINATION WITH A THIRD-PARTY NETWORK OR SYSTEM, HARDWARE, SOFTWARE, SERVICE, OR DATA. TO THE EXTENT PERMITTED BY APPLICABLE LAW, OCTONIUS AND ITS AFFILIATES, LICENSORS, AND SERVICE PROVIDERS DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES, AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, AND ANY CONDITIONS OF QUALITY, AVAILABILITY, RELIABILITY, SECURITY, OR LACK OF VIRUSES, BUGS, OR ERRORS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, THEREFORE SOME OF THE FOREGOING EXCLUSIONS IN THIS SECTION 6.2 MAY NOT APPLY IF CUSTOMER IS LOCATED IN SUCH A JURISDICTION.

OCTONIUS DOES NOT MAKE ANY WARRANTY AS TO OCTONIUS AI OUTPUT OR THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF OCTONIUS AI OR THE ACCURACY OF ANY OTHER INFORMATION OBTAINED THROUGH OCTONIUS AI. CUSTOMER UNDERSTANDS AND AGREES THAT OCTONIUS DOES NOT ATTEMPT TO VERIFY THE ACCURACY OR COMPLIANCE WITH LAWS OF ANY OCTONIUS AI OUTPUT, MATERIAL, OR OTHER DATA, OR ANY COMBINATION OF THE FOREGOING, OBTAINED THROUGH THE USE OF ANY OCTONIUS AI FEATURE, AND CUSTOMER ASSUMES THE SOLE RISK FOR USE OF SUCH OCTONIUS AI OUTPUT, MATERIAL, OR DATA, OR ANY COMBINATION OF THE FOREGOING. CUSTOMER SHOULD NOT RELY ON ANY FACTUAL ASSERTION IN OCTONIUS AI OUTPUT WITHOUT INDEPENDENTLY FACT CHECKING ITS ACCURACY. OCTONIUS AI OUTPUT THAT APPEAR(S) ACCURATE BECAUSE OF ITS DETAIL OR SPECIFICITY MAY STILL CONTAIN MATERIAL INACCURACIES. OCTONIUS AI MAY NOT BE CAPABLE OF DYNAMICALLY RETRIEVING INFORMATION, AND OCTONIUS AI OUTPUT MAY NOT ACCOUNT FOR EVENTS OR CHANGES TO UNDERLYING FACTS OCCURRING AFTER OCTONIUS AI WAS TRAINED. NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER FROM OCTONIUS OR THROUGH OCTONIUS AI SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

6.3. Customer represents and warrants that it is entitled to transfer the Customer Data to Octonius so that Octonius and its sub-processors and Affiliates may lawfully use, process, and transfer the Customer Data in accordance with this Agreement on Customer’s behalf.

6.4. Indemnification by Customer. CUSTOMER AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS OCTONIUS, ITS AFFILIATES, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, INVESTORS, CONTRACTORS, OR REPRESENTATIVES FROM AND AGAINST ANY CLAIM OR DEMAND, INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES, MADE IN CONNECTION WITH OR ARISING OUT OF CUSTOMER’S OR ITS USERS’ USE OF THE SERVICES, CONNECTION TO THE SERVICES, VIOLATION OF THIS AGREEMENT, VIOLATION OF AN APPLICABLE LAW, SUBMISSION, POSTING, OR TRANSMISSION OF CUSTOMER CONTENT TO THE SERVICES, OR VIOLATION OF ANY RIGHTS OF ANOTHER INDIVIDUAL OR ENTITY, OR ANY COMBINATION OF THE FOREGOING. OCTONIUS RESERVES THE RIGHT TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF SUCH DISPUTES, AND, IN ANY EVENT, CUSTOMER WILL COOPERATE WITH OCTONIUS IN ASSERTING ANY AVAILABLE DEFENSES.

7. LIMITATION OF LIABILITY

TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR CUSTOMER’S INDEMNIFICATION OBLIGATIONS AND A BREACH BY CUSTOMER OF SECTION 2, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL LOSSES, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO THOSE ARISING OUT OF OR RELATING TO: (A) LOSS OF DATA; (B) LOSS OF INCOME; (C) LOSS OF OPPORTUNITY; (D) LOST PROFITS; AND (E) UNAVAILABILITY OR NON-PERFORMANCE OF ANY OR ALL OF THE SERVICES, IN EACH CASE, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS IN THIS SECTION 7 MAY NOT APPLY IF CUSTOMER IS LOCATED IN SUCH A JURISDICTION.

TO THE EXTENT PERMITTED BY LAW, EXCEPT FOR CUSTOMER’S INDEMNIFICATION OBLIGATIONS AND A BREACH BY CUSTOMER OF SECTION 2, THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY AND THEIR RESPECTIVE AFFILIATES, LICENSORS, AND SERVICE PROVIDERS ARISING OUT OF THIS AGREEMENT OR THE TERMINATION THEREOF, OR BOTH, SHALL BE LIMITED TO THE SUM OF THE AMOUNTS ACTUALLY PAID TO OCTONIUS BY CUSTOMER FOR THE APPLICABLE SERVICES DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY, OR, IN THE CASE OF OCTONIUS CONSULTING SERVICES, THE AMOUNTS ACTUALLY PAID FOR THE APPLICABLE CONSULTING SERVICES. THE FOREGOING SHALL NOT LIMIT CUSTOMER’S OBLIGATIONS TO PAY ANY FEES OR OTHER SUMS DUE TO OCTONIUS. THE SERVICES DESCRIPTIONS MAY CONTAIN ADDITIONAL LIMITATIONS OF LIABILITY RELATED TO INDIVIDUAL SERVICES.

8. ADDITIONAL TERMS

8.1. U.S. Government End-Users. If Customer is a U.S. Government agency, Customer hereby acknowledges and agrees that the software being accessed through Services, as well as any software that is downloaded by any User in connection with the Services, constitutes “Commercial Computer Software” as defined in Section 2.101 of the Federal Acquisition Regulation (“FAR”), 48 CFR 2.101. Therefore, in accordance with Section 12.212 of the FAR (48 CFR 12.212), and Sections 227.7202-1 and 227.7202-3 of the Defense Federal Acquisition Regulation Supplement (“DFARS”) (48 CFR 227.7202-1 and 227.7202-3), the use, duplication, and disclosure of the software and related Documentation by the U.S. Government or any of its agencies is governed by, and is subject to, all of the terms, conditions, restrictions and limitations set forth in this Agreement. If, for any reason, FAR 12.212 or DFARS 227.7202-1 or 227.7202-3 or these license terms are deemed not applicable, Customer hereby acknowledges that the Government’s right to use, duplicate or disclose the software and related Documentation are “Restricted Rights” as defined in 48 CFR Section 52.227-14(a) (May 2014) or DFARS 252.227-7014(a)(15) (Feb 2014), as applicable. Manufacturer is Octonius Corporation, 8 The Green, STE 14427, Dover, DE 19901, United States.

8.2. Free Trials and Free Customer Accounts. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, OCTONIUS PROVIDES FREE TRIALS AND FREE CUSTOMER ACCOUNTS “AS IS” AND WITHOUT WARRANTY.

8.3. “Beta” or “Tech Preview” Services. The Services do not include “beta” or “tech preview” services. Customer acknowledges that, notwithstanding anything to the contrary in this Agreement, ANY “BETA” OR “TECH PREVIEW” Services are offered “AS-IS” FOR INTERNAL DEMONSTRATION, TEST, OR EVALUATION PURPOSES ONLY AND WITHOUT WARRANTY. Such services may contain bugs, errors, and other defects. Octonius does not make any representations, promises, or guarantees that such services will be publicly announced or made generally available. Octonius has no obligation to provide technical support or continued availability, and such services may be suspended or terminated at any time by Octonius in its sole discretion with or without notice to Customer.

8.4. Third-Party Products, Services, or Content. Services may contain features or functions that enable interoperation with third-party products, services, or content. Octonius may also provide access to third-party products, services, or content directly within the Services. Third-party products, services or content, and customer content in third-party services, are not part of the Services and are not warranted or supported by Octonius. Customer’s or its Users’ use of such third-party products, services or content is subject to the terms of the third-party provider. To the extent Customer or its Users authorize access or transmission of Customer Data through a third-party service, in no event will Octonius be responsible for any use, disclosure, modification or deletion of such Customer Data or for any act or omission on the part of such third-party provider or its services.

8.5. Copyright. Octonius reserves the right to delete or disable any Customer Data, including Octonius AI Output, allegedly infringing copyright(s); to require that Customer terminate the accounts of Users who are repeat copyright infringers; and to forward the information in any copyright-infringement notice to the User who allegedly provided the infringing content.

8.6. Aggregated Anonymous Data. Octonius may aggregate the metadata and usage data of Customer or its Users, or both, collected or otherwise made available through the Services so that the results are non-personally identifiable with respect to Customer or its Users, or both (“Aggregated Anonymous Data”). The Aggregated Anonymous Data will be deemed Octonius’ proprietary technology, and Customer acknowledges that Octonius may perpetually use the Aggregated Anonymous Data (a) for its own internal, statistical analysis, (b) to develop and improve the Services, and (c) to create and distribute reports and other materials regarding use of the Services. For clarity, nothing in this Section 8.6 gives Octonius the right (or ability) to publicly identify Customer or its Users, or both, as the source of any Aggregated Anonymous Data.

8.7. Security and Privacy. When providing SaaS Services, Octonius will implement and maintain administrative, organizational, and technical security controls and process personal data on Customer’s behalf in accordance with industry standards. Customer instructs Octonius to process Customer Data for the additional purpose of providing the Octonius AI functionality and Octonius AI Output.

8.8. Suspension of Services. Octonius reserves the right to suspend Customer’s access to all or any portion of the Services if it determines, in its sole discretion, that (a) payment for the Services is not received within fourteen (14) days from the date on which payment is due; (b) Customer’s or its Users’ use of the Services are in breach of this Agreement; (c) Customer fails to timely address Octonius’ request to take action pursuant to Section 2.4; (d) Customer’s use of the Services poses a security or other risk to the Services or to other users of the Services; or (d) suspension is required pursuant to a subpoena, court order, or other legal process. Octonius agrees to notify Customer of any such suspension. Customer will remain responsible for all Fees incurred before or during any suspension. Octonius reserves the right, in its sole discretion, to impose reasonable Fees to, upon Customer request, restore archived data from delinquent accounts.

8.9. Voice and Data Charges; Customer Connectivity. Customer is responsible for all fees and charges imposed by Customer’s telephone carriers, wireless providers, and other voice or data, or both, transmission providers arising out of access to and use of the Services. If Customer’s broadband connection or telephone service, or both, fails, or Customer experiences a power or other failure or interruption, the Services may also cease to function for reasons outside of Octonius’ control.

8.10 Improving Octonius AI. Octonius does not use Customer Data or permit others to use Customer Data to train the machine learning methods and data models used to provide Octonius AI features and functionality. Customer’s use of Octonius AI does not grant Octonius any right or license to use Customer Data in a manner that is inconsistent with this Agreement or to train Octonius’ machine learning methods or data models unless otherwise agreed to by Customer.

Octonius AI and its machine learning methods and data models may develop over time to better address specific use cases. Octonius may use data collected from Customer’s use of Octonius AI, including Customer Data, to improve Octonius’ models when Customer: (a) voluntarily provides Feedback to Wrike, such as by labeling Octonius AI Output with a “thumbs up” or “thumbs down”; or (b) gives Octonius its permission.

8.11 Octonius AI Fair Usage. Additionally, Customer’s use of Octonius AI is subject to fair usage restrictions that Octonius may determine in its sole discretion. Customer acknowledges and agrees that if Customer exceeds what Octonius, in its sole discretion, determines to be fair usage, Octonius may disable or degrade the performance of Octonius AI.

8.12. Confidential Information. Customer agrees that Octonius Materials and Octonius technology are Octonius’ confidential information. Further, Customer agrees that it shall not disclose or use any of Octonius’ confidential information for any purpose outside the scope of this Agreement, except with Octonius’ prior written permission. Customer shall use Octonius’ confidential information, including the Octonius Materials and Octonius technology, only as expressly permitted in this Agreement.

8.13. Force Majeure. Notwithstanding anything to the contrary in this Agreement, neither Party will be responsible or have any liability for any delay or failure to perform its non-monetary obligations hereunder to the extent due to unforeseen circumstances or causes beyond its reasonable control, including but not limited to acts of God, earthquake, fire, flood, sanctions, embargoes, strikes, lockouts or other labor disturbances, civil unrest, failure, unavailability or delay of suppliers or licensors, riots, terrorist or other malicious or criminal acts, war, failure or interruption of the Internet or third-party internet connections or infrastructure, power failures, acts of civil and military authorities, public-health emergencies or responses, and severe weather (in each case, “Force Majeure”). The affected Party will give the other Party prompt written notice (when possible) of the failure to perform due to Force Majeure and use its reasonable efforts to limit the resulting delay in its performance.

8.14. Feedback. If Customer provides any comments, suggestions, possible improvements or other feedback to Octonius regarding the Services or consulting services related to this Agreement (“Feedback”), Octonius may use such Feedback for any purpose without any compensation or obligation to Customer provided such use does not violate Octonius’ confidentiality obligations under this Agreement. Customer grants Octonius an irrevocable, worldwide, royalty-free, transferable, sublicensable, and perpetual license to use, modify, publish, and distribute such Feedback, as well as to make, have made, distribute, sell, offer to sell, display, perform, and otherwise exploit products and services that use such Feedback for any purpose without restriction.

8.15. Relationship of the Parties. The Parties are independent contractors and nothing in this Agreement creates a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between or among the Parties. Octonius may subcontract responsibilities under this Agreement but remains responsible for its breach of this Agreement by the acts or omissions of Octonius or its subcontractors. No person or entity not a Party to this Agreement will be deemed to be a third-party beneficiary of this Agreement or any provision hereof.

8.16. Eligibility and Scope. To use the Services, Customer represents and warrants that Customer is competent to enter into this Agreement and that Customer and its Users are each at least 18 years of age. If the laws where Customer or its Users reside require that Customer or its Users be older for Octonius to lawfully provide the Services to them and use their personal data without parental consent, then Customer or its Users must be that older age. If the representations and warranties above in this Section 8.16 are not true, or if Octonius has previously prohibited Customer or its Users from accessing or using the Services, Customer or such Users may not access or use the Services.

8.17. Assignment. Customer may not assign its rights or delegate its duties under this Agreement either in whole or in part without Octonius’ prior written consent, except that Customer may assign this Agreement in whole to one of Customer’s Affiliates, or to a successor in interest as part of a corporate reorganization, consolidation, merger, or sale of all or substantially all of its assets. Customer shall promptly provide notice to Octonius including documentation sufficient to evidence completion of any permitted assignment. Any attempted assignment in violation of the foregoing shall be void. This Agreement will bind and inure to the benefit of each Party and their respective successors and permitted assigns.

8.18. Export Restriction and Compliance with Laws. Customer acknowledges that the Services are subject to U.S., foreign, and international export controls and economic sanctions laws and regulations and agrees to comply with all such applicable laws and regulations, including, but not limited to, the U.S. Export Administration Regulations and regulations promulgated by the U.S. Department of the Treasury’s Office of Foreign Assets Control. Customer also specifically agrees not to, directly or indirectly, allow access to or use of the Services in embargoed or sanctioned countries/regions, by sanctioned or denied persons, or for end-uses prohibited under U.S. law without authorization from the U.S. government. Both Parties also agree to comply with all other laws, rules, and regulations applicable to that Party under this Agreement.

8.19. Audit. To the extent permitted by applicable law, Customer agrees to allow Octonius to audit Customer’s compliance with this Agreement.

8.20. Notices. All legal notices required under this Agreement shall be in writing and delivered in person or by certified or registered express mail to the address last designated on the Customer Account or such other address as either Party may specify by notice to the other Party as provided herein. Notice shall be deemed given (a) upon personal delivery; (b) if delivered by air courier or email, upon confirmation of receipt; or (c) five (5) days after deposit in the mail. A copy of all legal notices from Customer to Octonius must also be sent to the email address support@octonius.com.

8.21. Entire Agreement; Order of Precedence. The Agreement sets forth the entire agreement and understanding of the Parties relating to the Services and Customer Data and supersedes all prior and contemporaneous oral and written agreements. For any conflict between these terms and any supplementary terms of a business associates agreement related to PHI, this Agreement shall control. Nothing contained in any other document submitted by Customer shall in any way add to or otherwise modify the Agreement or any Octonius license program terms under which an Order is submitted. Notwithstanding the foregoing, in the event of a conflict between this Agreement and an order form prepared solely by Octonius, referencing this Agreement as governing terms, and signed by the Parties (an “Order Form”), such Order Form shall control. The terms of this Agreement may be updated by Octonius from time to time without notice (but will be identified by the last updated date) and may be reviewed at https://octonius.com/terms-of-service. Customer’s continued access to and use of the Services constitutes acceptance of the then-current terms.

8.22. Miscellaneous Terms. Captions and headings are used herein for convenience only, are not a part of this Agreement, and shall not be used in interpreting or construing this Agreement. Any provision of this Agreement that by its nature is reasonably intended to survive beyond its termination or expiration shall survive. Notwithstanding the foregoing, Sections 1 (Definitions), 2.2 (Limitations on Use), 2.3 (Inappropriate Content), 2.4 (Violations of Limitations on Use), 2.5 (Proprietary Rights), 3 (Free Trials, Orders, Fees, Payment, and Free Customer Accounts), 5 (Customer Data and Account), 6.4 (Indemnification by Customer), 7 (Limitation of Liability), 8.5 (Copyright), 8.6 (Aggregated Anonymous Data), 8.8 (Suspension of Services), 8.12 (Confidential Information), 8.20 (Notices), 8.22 (Miscellaneous Terms), and 8.23 (Choice of Law and Disputes) shall survive any termination of the Agreement. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be modified by the court and interpreted to best accomplish the objectives of the original provision to the fullest extent permitted by law, and the other provisions of this Agreement shall remain in full force and effect. Octonius’ resellers and distributors do not have the right to make modifications to this Agreement or to make any additional representations, commitments, or warranties binding on Octonius, its Affiliates, or its subcontractors. No waiver or amendment of any term or condition of this Agreement shall be valid or binding on any Party unless agreed to in writing by such Party. Octonius’ failure to enforce any term of this Agreement will not be construed as a waiver of the right to enforce any such terms in the future. Unless otherwise specified, remedies are cumulative.

8.23. Choice of Law and Disputes. This Agreement and any disputes arising out of or related hereto shall be governed by and construed in accordance with the laws of the state of New York, without giving effect to its conflicts of laws rules, the United Nations Convention on the International Sale of Goods, or the Uniform Computer Information Transactions Act. Customer consents to the exclusive personal jurisdiction and venue in the state and federal courts within New York, New York. Notwithstanding the foregoing, Customer agrees before taking any formal action that Customer will contact Octonius at the email address support@octonius.com and provide a brief, written description of the dispute and Customer’s contact information (including Customer’s username, if Customer’s dispute relates to an account). Except for intellectual property and small claims court claims, the Parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with Octonius, and good faith negotiations shall be a condition to Customer initiating legal action.