Please scroll down and read carefully all terms and conditions contained in this agreement (this “Agreement”)

Thank you for your interest in subscribing to products and services of Scaled Inference, Inc., a Delaware corporation (“SII”, “we” or “us”). BY PLACING AN ORDER, CLICKING TO ACCEPT THIS AGREEMENT, OR USING OR ACCESSING THE SII SERVICE OR RELATED SERVICES, YOU AGREE THAT YOU:

i. HAVE READ ALL THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT;  

ii. UNDERSTAND ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT;  

iii. ACCEPT AND AGREE TO BE LEGALLY BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT; AND 

iv. ACKNOWLEDGE AND AGREE THAT THE ELECTRONIC SIGNATURES IN GLOBAL AND NATIONAL COMMERCE ACT (“E-SIGN”) APPLIES TO THIS TRANSACTION AND ANY TRANSACTIONS BETWEEN THE PARTIES UNDERTAKEN HEREUNDER MAY BE UNDERTAKEN BY ELECTRONIC MEANS.

IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT REQUEST ACCESS TO THE SII SERVICES, AND DO NOT INSTALL THE SOFTWARE ON YOUR “PLATFORMS”, YOU MUST CONTACT SII IMMEDIATELY AND YOU MAY NOT USE THE SII TECHNOLOGY (AS DEFINED BELOW). IF YOU ARE USING THE SII TECHNOLOGY AND DO NOT AGREE WITH THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST IMMEDIATELY DISCONTINUE USE OF THE SII TECHNOLOGY, CONTACT SII IMMEDIATELY, AND COMPLY WITH THE TERMINATION PROVISIONS HEREOF.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY (OR OTHER ENTITY) THEN “CUSTOMER” OR “YOU” MEANS THAT ENTITY, AND YOU ARE BINDING THAT ENTITY TO THIS AGREEMENT, AND YOU REPRESENT THAT YOU ARE AN EMPLOYEE OR AGENT OF SUCH COMPANY (OR OTHER ENTITY) AND YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH COMPANY (OR OTHER ENTITY).

Please note that we may modify this Agreement as further described in the amendments section below, so please check this page from time to time.  

This Agreement was last updated on January 17, 2018.


DEFINITIONS.

1.1 “Account Key” means the code or other method provided by SII to Customer to enable Customer to access the Technologies. Customer agrees to keep the Account Key confidential.   

1.2  “Analysis Parameters” means Customer-selected parameters from those made available through the SII Service for Analyzed Data.

1.3 “Analyzed Data” means the Collected Data analyzed by the SII Service. 

1.4 “Anonymous Data” means: (i) data that is non-personally identifiable with respect to Customer and (ii) anonymous learnings, logs and data regarding use and improvement of the SII Service.

1.5 “Authorized Users” means Customer’s employees, contractors, partners, and affiliates (such as media agencies or marketing consultants) who are acting for Customer’s benefit and on its behalf.

1.6 “Collected Data” means data collected by the SII Service from or on behalf of Customer (including Analyzed Data). 

1.7 “Confidential Information” means code, inventions, know-how, product plans, inventions, technical and financial information exchanged under this Agreement, that is identified as confidential at the time of disclosure or should reasonably be considered confidential based on the circumstances surrounding the disclosure and the nature of the information disclosed.

1.8 “Customer Platform” means any Platform (as defined below) owned or controlled by Customer on or from which Customer is permitted to collect Collected Data.

1.9 “Documentation” means SII’s user and technical documentation provided with respect to the SII Service.

1.10 “Order Form” means any SII ordering documentation or online sign-up or subscription that references this Agreement.

1.11 “Personal Information” means: (i) any personally identifiable information (other than information about Authorized Users necessary to create user accounts); (ii) any patient, medical or other protected or regulated health information (including HIPAA-Regulated Data); or (iii) any government IDs, financial information (including bank account or payment card numbers) or any other information subject to regulation or protection under specific laws or regulations (including data covered under the Gramm-Leach-Bliley Act or related rules or regulations).

1.12 “Platform” means any physical or electronic device, service, or product on which software can be installed or operated, and from which data may be collected. Examples of Platforms include, but are not limited to, websites, browsers, servers, mobile client software, mobile devices, applications, internet-connected appliances, etc.

1.13 “Reports” means information generated by the SII Service with respect to the Analyzed Data or otherwise as made available by the SII Service.

1.14 “SII Client Libraries” means the SII Software (defined below) specifically developed and provided by SII to Customer to be installed on or used to communicate with a Customer Platform to enable the Customer Platform to communicate with the SII Service.

1.15 “SII Software” means the code developed and provided by SII to Customer for use in connection with the SII Service.

1.16 “SII Service” means the specific proprietary software-as-a-service product of SII specified in Customer’s Order Form, including any related SII Software and Documentation.

1.17 “SII Technology” means the SII Service, the SII Software, the Documentation and any and all related or underlying documentation, technology, code, know-how, logos and templates (including in any reports or output obtained from the SII Service), anything delivered as part of support or other services, and any updates, modifications or derivative works of any of the foregoing.

1.18 “Subscription Term” means the initial term for the subscription to the applicable SII Service, as specified on Customer’s Order Form(s), and each subsequent renewal term (if any).

1.19 “Third-Party Product” means any application, integration, software, code, online service, system and other product not developed by SII.


USE RIGHTS.

2.1 License to Use. Subject the terms and conditions of this Agreement, during the term of this Agreement, SII grants Customer a limited, revocable, nonexclusive, non-transferable, non-sublicensable license to:

(a) access and use the SII Service solely for Customer’s business purposes, including to support Customer’s clients, subject to the restrictions contained in this Agreement, and not for resale or further distribution;

(b) install and use the relevant SII Software on Customer Platforms only as necessary to use the SII Service for Customer’s business purposes and not for resale or further distribution; and

(c) modify the SII Client Libraries as may be necessary to enable a Customer Platform to communicate with the applicable SII Service for Customer’s intended legal use (“Client Library Modifications”). In the event Customer makes any Client Library Modifications, Customer hereby grants SII an unlimited, worldwide, irrevocable, exclusive, transferable, royalty-free right and license to collect, use, copy, store, transmit, modify and create derivative works of all such modifications. Customer is not and shall not be authorized to use Client Library Modifications other than for utilizing the SII Service under this Agreement.

2.2 Use by Others. Customer may permit its Authorized Users to use the SII Service provided their use is for Customer’s benefit only and remains in compliance with this Agreement. Customer will be responsible and liable for all Authorized Users’ use and access and their compliance with the terms and conditions herein.

2.3 Usage Limitations. Customer’s use of the SII Service is limited by the terms set forth in this Agreement, the Order Form and Documentation “Usage Limits.” Customers accessing the SII Service under Free Access Subscriptions may use the SII Service to process up to 100,000 (one hundred thousand) end-user sessions of Analyzed Data (referred to as an “AMP”).

2.4 General Restrictions. Customer shall not (and must not allow any third party to):

a. rent, lease, copy, transfer, sublicense or provide access to the SII Technology to a third party (except Authorized Users as specifically authorized above);

b. incorporate the SII Service (or any portion thereof) into, or use it with or to provide, any site, product or service, other than on Customer Platforms for the purposes specifically permitted by this Agreement;

d. publicly disseminate information regarding the performance of the SII Technology (which is deemed SII’s Confidential Information);

f. reverse engineer, disassemble, decompile, translate, or otherwise seek to obtain or derive the source code (except for that source code which is provided by SII to the Customer in the SII Software), underlying ideas, algorithms, file formats or non-public APIs to any SII Service (including SII Software), except to the extent expressly permitted by applicable law and then only upon advance notice to SII;

h. distribute any portion of the SII Service other than the SII Software installed in Customer Platforms as specifically permitted above;

i. remove or obscure any proprietary or other notices contained in the SII Service including in any reports or output obtained from the SII Service;

j. access or use the SII Technology for the purpose of building a competitive product or service or copying its features or user interface;

k. use the SII Technology in a manner that overburdens, or that threatens the integrity, performance, or availability of, the SII Technology;

m. access any part of the SII Service, or any content or data therein, through any technology or means other than those provided or authorized by SII (including without limitation through technologies such as automated or non-automated “scraping,” “robots,” “spiders,” “offline readers,” or any system that sends more request messages to the SII servers than a human can reasonably produce in the same period of time);

n. interfere with the normal functioning, integrity or operation of the SII Service;

o. upload or transmit invalid data, viruses, worms, harmful code, malware, or other software agents;

p. decipher or decrypt transmissions, circumvent any access, authentication or copy restrictions of, or otherwise attempt to compromise the security of the SII Service (including another user’s account);

q. attempt to probe, scan or test the vulnerability of any part of the SII Service without proper authorization; or

r. use the SII Service or other parts of the SII Service in violation of any applicable law or regulation, including privacy laws in applicable jurisdictions.

2.5 Reserved Rights. Customer’s rights are limited to the licenses expressly granted to Customer in this Agreement. SII reserves all rights not expressly granted in this Agreement. Customer acknowledges and agrees that SII has the right to modify the SII Service and SII Software at any time for any reason without notice to Customer. SII may audit and track Customer’s access and use of the SII Service and SII Software, as well as the Customer’s configuration.


ACCOUNT REGISTRATION AND USE.

Customer and its Authorized Users may need to register for an SII account and obtain an Account Key in order to place orders or to access or receive the SII Service. Account information must be accurate, current and complete, and will be governed by SII’s Privacy Policy (currently available at https://www.scaledinference.com/privacy- policy).

Customer agrees to keep this information up-to-date so that SII may send notices, statements and other information by email or through Customer’s account. Customer must ensure that any Account Keys, user IDs, passwords and other access credentials (such as API tokens) for the SII Service are kept strictly confidential and not shared with any unauthorized person. If any Authorized User stops working for Customer, Customer must immediately terminate that person’s access to its account and any SII Service. Customer will be responsible for any and all actions taken using its and its users’ accounts, passwords or access credentials. Customer must notify SII immediately of any breach of security or unauthorized use of its account. Accounts are granted to specific Customers and must not be shared with others.


COLLECTED DATA.

4.1 Rights in Collected Data. As between the parties, Customer retains all right, title and interest (including any intellectual property rights) in and to the Collected Data, all Customer Platforms and all content contained therein (excluding any SII Technology). Customer hereby grants SII a non-exclusive, worldwide, royalty-free right and license to collect, use, copy, store, transmit, modify and create derivative works of the Collected Data solely to the extent necessary to provide the SII Service and related services to Customer and as otherwise provided below.

4.2 Anonymous Data. Customer agrees that SII will have the right to generate Anonymous Data and that SII shall own all right, title and interest to the Anonymous Data and any derivative works thereof. Notwithstanding anything to the contrary herein, the parties agree that Anonymous Data is SII Technology, which SII may use for any business purpose during or after the term of this Agreement (including without limitation to develop and improve SII’s products and services and to create and distribute reports and other materials). SII will not distribute Anonymous Data in a manner that personally identifies Customer.

4.3 Security. SII agrees to maintain technical and organizational measures designed to secure its systems from unauthorized access, use or disclosure. These measures will include: (i) storing Collected Data on servers located in a physically secured locations, and (ii) using access controls, such as firewalls and similar security technology designed to protect Collected Data from unauthorized disclosure. SII takes no responsibility and assumes no liability for any Collected Data other than its express security obligations in this Section.

4.4 Storage. SII does not provide an archiving service. During the Subscription Term, Customer acknowledges that SII may, but is under no obligation to, delete Collected Data no longer in active use. Customer is responsible for backing up all Reports. SII expressly disclaims all other obligations with respect to storage.

4.5 Sharing. SII only shares Collected Content with others under special circumstances as follows:

a. With third parties who work on SII’s behalf to provide the SII Technology;

b. To the extent needed to comply with laws or to respond to lawful requests and legal process (provided that SII will endeavor to notify Customer if SII has received a lawful request for Customer’s information);

c. To protect the rights and property of SII, its agents, customers, and others including to enforce SII’s agreements, policies, and terms of use;

e. In connection with a sale or transfer of all or a part of SII’s business or assets (business deals may include, for example, any merger, financing, acquisition, divestiture, or bankruptcy transaction or proceeding); or 


CUSTOMER OBLIGATIONS.


5.1 Customer shall use the SII Technology only in compliance with all applicable laws, including any applicable export laws, privacy laws, data protection regulations, and the terms of this Agreement.

5.2 Customer agrees to:

a. maintain a legally-adequate privacy policy on its Customer Platforms and provide all required disclosures to its customers;

b.  obtain all necessary rights, releases and consents to allow Collected Data to be collected, used and disclosed in the manner contemplated by this Agreement and to grant SII the rights herein;

d. not submit, collect or use any Personal Information to or with the SII Service (including from Third- Party Products);

e. comply with any third-party terms applicable to any Third-Party Products used in connection with the SII Service; and

f. not take any action that would cause SII, the SII Service or the SII Software to become subject to any third-party terms (including open source license terms).

5.4 Customer is responsible for all fees charged by third parties related to Customer’s access and use of the SII Service (e.g., charges by Internet service providers).

5.5 Customer agrees to provide appropriate notices to the users of Customer Platforms (“End Users”) about, and if required by applicable laws obtain appropriate consent from such End Users for, Customer’s information collection and use practices relating to Customer’s use of the SII Technology. To the extent a Customer Platform is owned or operated by a third party, such as a Customer’s client, Customer shall ensure that the third party has complied with all applicable laws with respect to notice and consent to the End Users.


FEES AND PAYMENT.

6.1  Fees. Fees paid hereunder are non-refundable and shall be billed in U.S. Dollars. Except as otherwise set forth in an Order Form, fees due hereunder will be billed to Customer’s credit card and Customer authorizes the card issuer to pay all such amounts and authorizes SII (or its billing agent) to charge the credit card account until Customer or SII cancels or terminates the SII Services as set forth herein; provided that if payment is not received from the credit card issuer, Customer agrees to pay all amounts due upon demand. Customer must provide current, complete and accurate billing and credit card information. Customer agrees to pay all costs of collection, including attorney’s fees and costs, on any outstanding balance. In certain instances, the issuer of the credit card may charge a foreign transaction fee or related charges, which Customer shall be responsible to pay. Late payments may be subject to a service charge equal to the lesser of 1.5% (one and one-half percent) per month of the amount due or the maximum amount allowed by law.

6.2 Taxes. Fees do not include any local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, use or withholding taxes (collectively, “Taxes”). Customer is responsible for payment of all Taxes associated with its purchases hereunder (excluding taxes based on SII’s net income or property), and any related penalties and interest. Customer will make all required payments to SII free and clear of, and without reduction for, any withholding taxes. Customer will, upon SII’s request, provide SII with official receipts issued by appropriate taxing authorities, or such other evidence as SII may reasonably request, to establish that such Taxes have been paid.

6.3 Beta Releases and Free Access Subscriptions. SII may provide Customer with the SII Service or SII Software for free or on a trial basis (a “Free Access Subscription”) or with “alpha”, “beta” or other early-stage SII Service, SII Software, integrations or features (“Beta Releases”). This Section will apply to any Free Access Subscription or Beta Release (even if a Beta Release is provided for a fee) and supersedes any contrary provision in

this Agreement. SII may use good faith efforts in its discretion to assist Customer with Free Access Subscriptions or Beta Releases. Nevertheless, and without limiting the other disclaimers and limitations in this Agreement, CUSTOMER AGREES THAT ANY FREE ACCESS SUBSCRIPTION OR BETA RELEASE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, SLA OR INDEMNITY OBLIGATIONS OF ANY KIND. WITH RESPECT TO BETA RELEASES, CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT BETA RELEASES MAY NOT BE COMPLETE OR FULLY FUNCTIONAL AND MAY CONTAIN BUGS, ERRORS, OMISSIONS AND OTHER PROBLEMS FOR WHICH SII WILL NOT BE RESPONSIBLE. ACCORDINGLY, ANY USE OF A BETA

RELEASE IS AT CUSTOMER’S SOLE RISK. SII may modify the services offered with a Free Access Subscription or terminate Customer’s right to use any Free Access Subscription at any time for any reason or no reason in SII’s sole discretion, without notice and without liability. SII makes no promises that future versions of a Beta Release will be released or will be available under the same commercial or other terms.


TERM AND TERMINATION.

7.1 Term. This Agreement is effective until all Subscription Terms for the SII Service(s) have expired or are terminated as expressly permitted herein.

7.2 Subscription Term and Renewals. By placing an Order Form for purchase of an SII Service, Customer is agreeing to pay applicable fees for the entire Subscription Term. Customer cannot cancel or terminate a Subscription Term except as expressly permitted by Section 7.4 (Termination for Cause). Each Subscription Term will automatically renew for a term equivalent to the initial term in the Order Form (unless otherwise stated in the Order Form) additional successive twelve-month periods unless: (i) otherwise stated on the applicable Order Form or (ii) either party gives written notice of non-renewal at least sixty (60) days before the end of the then-current Subscription Term. If no subscription start date is specified on the applicable Order Form, the subscription starts when Customer first obtains access to the SII Service. Pricing for any Subscription Term renewal, new Order Form or Order Form change will be at SII’s then-applicable rates.

7.3 Suspension of Service. SII may suspend Customer’s access to the SII Service(s) if Customer’s account is overdue or Customer exceeds the Usage Limits. SII may also suspend Customer’s access to the SII Service(s), remove Collected Data or disable Third-Party Products if it determines that: (a) Customer has breached Sections 3 (Use Rights) or 5 (Customer Obligations) or (b) suspension is necessary to prevent harm or liability to other customers or third parties or to preserve the security, stability, availability or integrity of the SII Service. SII will have no liability for acting as permitted above. For avoidance of doubt, Customer will remain responsible for payment of fees during any suspension period. However, unless this Agreement has been terminated, SII will cooperate with Customer to restore access to the SII Service once it verifies that Customer has resolved the condition requiring suspension.

7.4 Termination for Cause. Either party may terminate this Agreement, including any related Order Form, if the other party: (i) fails to cure any material breach of this Agreement (including a failure to pay fees) within thirty

(30) days after written notice detailing the breach; (ii) ceases operation without a successor; or (iii) 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 not dismissed within sixty (60) days thereafter). SII may also terminate this Agreement or any related Order Forms immediately if Customer breaches Sections 3 (Use Rights) or 5 (Customer Obligations) or for repeated violations of this Agreement.

7.5 Effect of Termination. Upon any expiration or termination of this Agreement or an Order

Form: (i) Customer’s license rights shall terminate and it must immediately cease use of the applicable SII Service(s) (including any related SII Technology), cease distributing any SII Software installed on its Customer Platforms, and delete (or, at SII’s request, return) any and all copies of the SII Software, any Documentation, Access Keys, passwords or access codes and any other SII Confidential Information in Customer’s possession, custody or control and (ii) Customer’s right to access any Collected Data in the applicable SII Service will cease and SII may delete any such data in its possession at any time. If SII terminates this Agreement for cause as provided in Section 7.4 (Termination for Cause), any payments for the remaining portion of the Subscription Term will become due and must be paid immediately by Customer. Except where this Agreement specifies an exclusive remedy, all remedies

under this Agreement, including termination or suspension, are cumulative and not exclusive of any other rights or remedies that may be available to a party.

7.6 Survival. The following Sections survive any expiration or termination of this Agreement: 1 (Definitions);

2.4 (General Restrictions); 2.5 (Beta Releases and Free Access Subscriptions); 3 (Account Registration and Use); 4.1 (Rights in Collected Data); 4.2 (Anonymous Data); 6 (Fees and Payment); 9 (Term and Termination); 8 (Confidential Information); 9 (SII Technology); 10 (Indemnification); 11 (Disclaimers); 12 (Limitations of Liability); 13 (Third-Party Products and Integrations); and 14 (General).


CONFIDENTIAL INFORMATION.

8.1 Obligation of Confidentiality. Each party (as the receiving party) must: (i) hold in confidence and not disclose the other party’s Confidential Information to third parties except as permitted by this Agreement;

and (ii) use the other party’s Confidential Information only to fulfill its obligations and exercise its rights under this Agreement. Each party may share the other party’s Confidential Information with its employees, agents or contractors having a legitimate need to know, provided that such party remains responsible for any recipient’s compliance with the terms of this Section 8 and these recipients are bound to confidentiality obligations no less protective than this Section.

8.2  Exclusions. These confidentiality obligations do not apply to (and Confidential Information does not include) information that: (i) is or becomes public knowledge through no fault of the receiving party; (ii) was known by the receiving party prior to receipt of the Confidential Information; (iii) is rightfully obtained by the receiving party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by the receiving party without using the disclosing party’s Confidential Information. A party may also disclose the other party’s Confidential Information to the extent required by law or court order, provided it gives advance notice (if permitted by law) and cooperates in any effort by the other party to obtain confidential treatment for the information.

8.3 Remedies. The parties acknowledge that disclosure of Confidential Information may cause substantial harm for which damages alone may be an insufficient remedy, and so upon breach of this Section each party is entitled to seek appropriate equitable relief in addition to any other remedies it may have at law.


SII TECHNOLOGY.

9.1 Ownership. SII (or its suppliers) retains all rights, title and interest (including all intellectual property rights) in and to all SII Technology (which is deemed SII’s Confidential Information). Other than the SII Software, the SII Service is offered as an on-line, hosted product. Accordingly, Customer acknowledges and agrees that it has no right to obtain a copy of the software behind any SII Service and that SII at its option may make updates, bug fixes, modifications or improvements to the SII Service from time-to-time.

9.2 Feedback. If Customer elects to provide any suggestions, comments, improvements, information, ideas or other feedback or related materials to SII (collectively, “Feedback”), Customer hereby grants SII a worldwide, perpetual, non-revocable, sublicensable, royalty-free right and license to use, copy, disclose, license, distribute and exploit any such Feedback in any manner without any obligation, payment or restriction based on intellectual property rights or otherwise. Nothing in this Agreement limits SII’s right to independently use, develop, evaluate or market products, whether incorporating Feedback or otherwise. Customer will not provide the same Feedback to any other party. Feedback will be considered Confidential Information of SII.


INDEMNIFICATION.

Customer will indemnify and hold SII harmless from and against any third-party claims and related costs, damages, liabilities and expenses (including reasonable attorney’s fees) arising from or pertaining to any Collected Data, Customer Platforms (including services or products provided through such servers), or breach or alleged breach of Section 2.4 (General Restrictions) or Section 4 (Customer Obligations). Customer also agrees to defend SII against these claims at SII’s request, but SII may participate in any claim through counsel of its own choosing and the parties will reasonably cooperate on any defense. Customer must not settle any claim without SII’s prior written

consent if the settlement does not fully release SII from liability or would require SII to admit fault, pay any amounts or take or refrain from taking any action.


DISCLAIMERS. 

ALL SII TECHNOLOGY AND RELATED SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. NEITHER SII NOR ITS SUPPLIERS MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. SII MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE THAT SII TECHNOLOGY WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS, THAT REPORTS WILL BE ACCURATE, COMPLETE OR PRESERVED WITHOUT LOSS, OR THAT SII TECHNOLOGY WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR- FREE. SII DOES NOT GUARANTEE THAT SECURITY MEASURES WILL BE ERROR-FREE AND WILL NOT BE RESPONSIBLE OR LIABLE FOR UNAUTHORIZED ACCESS BEYOND ITS REASONABLE CONTROL. SII WILL NOT BE RESPONSIBLE OR LIABLE IN ANY MANNER FOR ANY CLIENTS, THIRD PARTY PRODUCTS, OR NON-SII SERVICE (INCLUDING FOR ANY DELAYS, INTERRUPTIONS, TRANSMISSION ERRORS, SECURITY FAILURES, AND OTHER PROBLEMS CAUSED BY THESE ITEMS), FOR PERSONAL INFORMATION RECEIVED FROM CUSTOMER IN BREACH OF THIS AGREEMENT, FOR THE COLLECTION, USE AND DISCLOSURE OF COLLECTED DATA AUTHORIZED BY THIS AGREEMENT, OR FOR DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY CUSTOMER BASED UPON SII TECHNOLOGY OR SII’S RELATED SERVICES. CUSTOMER ACKNOWLEDGES THAT SII HAS NO DUTY TO UPDATE, SUPPLEMENT, SUPPORT, MAINTAIN OR OTHERWISE MODIFY THE SII TECHNOLOGY AT ANY TIME. THE DISCLAIMERS IN THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW. 


LIMITATIONS OF LIABILITY.

TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT WILL SII OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF DELAY, REPUTATIONAL HARM, OR ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SII’S OR ITS SUPPLIERS’ TOTAL LIABILITY EXCEED IN AGGREGATE THE AMOUNT ACTUALLY PAID OR PAYABLE BY CUSTOMER TO SII FOR THE APPLICABLE SII SERVICE OR RELATED SERVICES IN THE TWELVE (12) MONTHS PRECEDING THE CLAIM. FOR FREE ACCESS SUBSCRIPTIONS OR BETA RELEASES PROVIDED WITHOUT CHARGE, SII’S TOTAL LIABILITY SHALL NOT EXCEED IN AGGREGATE ONE HUNDRED U.S. DOLLARS ($100.00 US). NOTWITHSTANDING THE FOREGOING, NONE OF THE LIMITATIONS IN THIS SECTION 12 EXCLUDES EITHER PARTY’S LIABILITY FOR FRAUD OR FOR DEATH OR PERSONAL INJURY TO THE EXTENT CAUSED BY A PARTY’S GROSS NEGLIGENCE. IN ADDITION, THE LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE LAWS IS FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION 12 SHALL APPLY TO THE MAXIMUM EXTENT NOT PROHIBITED BY SUCH LAW. EACH PARTY ACKNOWLEDGES AND AGREES THAT THIS SECTION 12 IS A FUNDAMENTAL BASIS OF THE BARGAIN AND A REASONABLE ALLOCATION OF RISK BETWEEN THE PARTIES AND WILL SURVIVE AND APPLY TO ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, ANY SII TECHNOLOGY OR ANY RELATED SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE), EVEN IF ANY LIMITED REMEDY IN THIS AGREEMENT IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.


THIRD-PARTY PRODUCTS.

Customer acknowledges and agrees that SII Technologies contain Third-Party Products. NEITHER SII NOR THE PROVIDERS OF THIRD-PARTY PRODUCTS ARE RESPONSIBLE AND SHALL HAVE NO LIABILITY AS A RESULT OF

CUSTOMER’S USE OF THE THIRD-PARTY PRODUCTS. Customer acknowledges that the SII Service will be available pursuant to a hosted solution (“Cloud Services”) provided by third-party on-demand cloud services providers (“Cloud Providers”). NEITHER SII NOR THE CLOUD PROVIDERS SHALL BE RESPONSIBLE AND SHALL HAVE NO LIABILITY FOR AVAILABILITY OR LACK OF AVAILABILITY OF THE SII SERVICES. NEITHER SII NOR ITS CLOUD

PROVIDERS WILL BE LIABLE FOR ANY DAMAGES RELATED TO ANY DOWNTIME, OUTAGES, LOSS OF DATA, OR UNAUTHORIZED ACCESS TO CUSTOMER’S DATA.


GENERAL.

14.1 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement without the advance written consent of the other party, except that SII may assign this Agreement without consent to an affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of its assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 14.1 will be null and void.

14.2 Notices. Any notice or communication under this Agreement must be in writing. Customer must send any notices under this Agreement (including breach notices) to SII at the following address, notices@scaledinference.com and include “Attn. Head of Commercialization” in the subject line. SII may send notices to the e-mail addresses on Customer’s account or, at SII’s option, to Customer’s last-known postal address. SII may also provide operational notices regarding the SII Service or other business-related notices through conspicuous posting of such notice on SII’s website or the SII Service. Each party hereby consents to receipt of electronic notices. SII is not responsible for any automatic filtering Customer or its network provider may apply to email notifications.

14.3 Publicity. Unless otherwise specified in the applicable Order Form, SII may use Customer’s name, logo and marks to identify Customer as an SII customer on SII’s website and other marketing materials.

14.4 Subpoenas. Nothing in this Agreement prevents SII from disclosing Collected Data to the extent required by law, subpoenas, or court orders, but SII will use commercially reasonable efforts to notify Customer where permitted to do so.

14.5 Independent Contractors. The parties to this Agreement are independent contractors, and this Agreement does not create a partnership, joint venture, employment, franchise, or agency relationship. Neither party has the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

14.6 Force Majeure. Neither party will be liable for any delay or failure to perform its obligations under this Agreement (except payment obligations) if the delay or failure is due to causes beyond its reasonable control, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or reduction of power or telecommunications or data networks or services, or government act.

14.7 Export. Customer is responsible for obtaining any required export or import authorizations for use of the SII Service. Customer represents and warrants that it, its affiliates, and its Authorized Users are not on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country. Customer must not access or use the SII Service in violation of any U.S. export embargo, prohibition or restriction.

14.8 Amendments; Waivers. SII may update or modify this Agreement from time to time. If SII modifies the Agreement during Customer’s Subscription Term, the modified version will take effect upon Customer’s next Subscription Term renewal, except that: (i) changes to the policies referenced herein will take effect thirty (30) days from the date of posting; (ii) if SII launches new products or optional features that require opt-in acceptance of new terms, those terms will apply upon Customer’s acceptance; and (iii) any updated or modified Agreement will take effect immediately for Free Access Subscriptions or if Customer accepts new Order Forms or Order Form changes following the modification. Customer may be required to click through the updated Agreement to show acceptance; in any event, continued use of Free Access Subscriptions or any renewal of a Subscription Term following the update shall constitute acceptance of the updated Agreement. If Customer does not agree to the updated Agreement after it takes effect, Customer will no longer have the right to use the SII Service. Except as otherwise described in this Section, any modification or amendment to this Agreement must be made in writing and signed by a duly authorized representative of each party (each in its discretion). No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement. Waivers must be made in writing and executed by a duly authorized representative of the waiving party.

14.9 Severability. If any provision of this Agreement is found by any court of competent jurisdiction to be unenforceable or invalid, that provision will be limited to the minimum extent necessary so that this Agreement may otherwise remain in effect.

14.10 No Third-Party Rights. Nothing in this Agreement confers on any third party the right to enforce any provision of this Agreement. Customer acknowledges that each Order Form only permits use by and for the legal entity or entities identified in the Order Form and not any affiliated entities.

14.11 Attorneys’ Fees and Costs. The substantially prevailing party in any action to enforce this Agreement will be entitled to recover its reasonable attorneys’ fees and costs for the action.

14.12 Entire Agreement. This Agreement represents the parties’ complete and exclusive understanding relating to the Agreement’s subject matter. It supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the SII Technology or any other subject matter covered by this Agreement. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement regardless of when or where adopted. Any terms provided by Customer (including as part of any Order Form or other business form used by Customer) are for administrative purposes only, and have no legal effect.

14.13 Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of the State of California and the United States, without regard to choice or conflict of law rules thereof. The exclusive jurisdiction and venue for actions related to the subject matter of this Agreement shall be the state courts located in Santa Clara County, California or the United States District Court for the Northern District of California, and both parties submit to the personal jurisdiction of these courts.

14.14 U.S. Government Use. The SII Technology is a “Commercial Item” as that term is defined at 48 C.F.R.

§2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. If the user or licensee of SII Technology is an agency, department or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure or transfer of the SII Technology is restricted by a license agreement or by this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The SII Technology was developed fully at private expense. All other use is prohibited.

14.15 Headings. The headings in this Agreement are for purposes of convenience only and will not limit or otherwise affect the terms or provisions hereof. Contact Information. If you have any questions or concerns about the SII Technology or this Agreement, you may contact us by email at notices@scaledinference.com.