This SPARKCOGNITION CUSTOMER AGREEMENT (“SCA”) is between SparkCognition, Inc. (“SparkCognition”), a Delaware corporation with its principal place of business located at 12708 Riata Vista Cir Suite B-100, Austin, TX 78727, and the customer identified in Section 1 (Customer Information) of the Order incorporating this SCA (“Customer”). Capitalized terms used in this SCA have the meanings given to them in the attached Glossary or the applicable Order.

1. SOFTWARE, SAAS, AND HARDWARE

1.1 Software License Grant. If Customer orders Software licenses for installation on Customer’s premises (including on Customer’s third-party service provider’s cloud service), then as of the applicable Order Date, SparkCognition hereby grants Customer a non-exclusive, limited, revocable, non-transferable and non-sublicensable license to use the Software only: (a) during the relevant Order Term, (b) internally for Customer’s own internal business purposes and not for resale or license to third parties, (c) by up to the authorized number of Users, (d) subject to any applicable Usage Allowances, and (e) in accordance with any additional Software rights and limitations specified in the Order.

1.2 SaaS Services. If Customer orders SaaS Services, then SparkCognition will make available to Customer the SaaS Services on a non-exclusive, limited, revocable, non-transferable and non-sublicensable basis only: (a) during the relevant Order Term, (b) internally for Customer’s own internal purposes and not for resale or license to third parties, (c) by up to the authorized number of Users, (d) subject to any applicable Usage Allowances, and (e) in accordance with any additional SaaS Services rights and limitations specified in the Order.

1.3 APIs and SDKs. The Software and SaaS Services may include or require the use of certain application programming interfaces (“API”) or software development kits (“SDK”). The end user license agreements that accompany the APIs and SDKs (“EULA”), and not Sections 1.1 and 1.2 above, apply to Customer’s use of APIs and SDKs. If no EULA accompanies an API or SDK, then SparkCognition hereby grants to Customer a non-exclusive, limited, revocable, non-transferable and non-sublicensable license to use such API or SDK solely for the purpose of exercising Customer’s rights granted for the Software and SaaS Services under the Agreement.

1.4 Restrictions. Customer will not directly or indirectly, nor authorize any of its Representatives or any third party to, do any of the following: (a) copy, modify or create derivative works of the SparkCognition Materials, Software or SaaS Services, except as necessary to develop Models as permitted under the Agreement, (b) publish, sublicense, sell, resell, rent, lease, market or distribute the SparkCognition Materials, Software or SaaS Services, or otherwise make the Software or SaaS Services available to anyone other than Users; (c) reverse engineer, decompile, disassemble or otherwise attempt to gain access to the source code form of the SparkCognition Materials, Software or SaaS Services; (d) use the SparkCognition Offerings in violation of any applicable law, including export, intellectual property, libel, and privacy laws; (e) remove any proprietary notices from the SparkCognition Materials, Hardware, Software, or SaaS Services, the Professional Services deliverables, or any other materials made available by SparkCognition; (f) use or access the SparkCognition Offerings or SparkCognition Materials in order to build a competitive product or service; (g) interfere with or disrupt the integrity or performance of the SaaS Services or any data contained therein; (h) attempt to gain unauthorized access to the Platform or its related data, systems or networks; (i) publish or disclose to third parties any evaluation of the SparkCognition Offerings, or data or information on Customer’s results from using the SparkCognition Offerings, without SparkCognition’s prior written consent; or (j) perform vulnerability, load or any other testing of the Platform without SparkCognition’s prior written consent. Customer is responsible for each User’s use of the SparkCognition Offerings and compliance with the terms of the Agreement.

1.5 Trial and Beta Products. If an Order specifies that SparkCognition is providing Customer with a trial, evaluation, developer license to, or beta version of, Software or SaaS Services (the “Trial Products”), Customer agrees to use the Trial Products solely for evaluation purposes, in a non-production environment, for a 30-day evaluation period unless a different period is specified in the Order (the “Trial Period”). At the end of the Trial Period, Customer’s right to use the Trial Products automatically expires and Customer shall uninstall the Trial Products and return all copies or partial copies of the Trial Products to SparkCognition. If Customer desires to continue its use of the Trial Products beyond the Trial Period, the parties will enter into a new Order for the Trial Products for the applicable Fees. IN ADDITION TO ANY DISCLAIMERS IN SECTION 6.3, TRIAL PRODUCTS ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS AT CUSTOMER’S SOLE RISK. SPARKCOGNITION HAS NO LIABILITY FOR CUSTOMER’S USE OF THE TRIAL PRODUCTS UNDER ANY THEORY OF LIABILITY. SparkCognition does not provide support for Trial Products. Trial Products may be subject to reduced or different security, compliance and privacy commitments. The following Sections of the SCA do not apply to Trial Products: 3.1, 6.1, and 10.1.

1.6 Modifications. The SparkCognition Offerings and Policies may be modified by SparkCognition. SparkCognition will inform Customer of modifications by email, the support portal, release notes, Documentation or the SaaS Services. The information will be delivered by email if the modification is not solely an enhancement. Modifications may include optional new features, which Customer may use subject to the Agreement. If Customer establishes that a modification is not solely an enhancement and materially reduces the SparkCognition Offerings, Customer may terminate its rights to use the affected SparkCognition Offerings by providing written notice to SparkCognition within 30 days after receipt of SparkCognition’s informational notice.

1.7 No Other Rights. Except as expressly set forth in the Agreement, no additional rights are granted to Customer. SparkCognition hereby reserves all rights not expressly granted to Customer under the Agreement.

1.8 Hardware. SparkCognition will provide Hardware as specified in the Order. Once an Order is accepted, Hardware purchases thereunder are non-cancelable and non-refundable, and deliveries may not be deferred without SparkCognition’s prior written consent. Hardware prices are SparkCognition’s then-current list prices and are subject to change based on SparkCognition’s selling prices in effect as of date of shipment, unless otherwise specified in the Order. SparkCognition reserves the right to select the manner in which Hardware is packaged.

2. DELIVERY.

2.1 Software and SaaS. Software licensed for installation on Customer’s premises (including on Customer’s third-party service provider’s cloud service) will be deemed delivered to Customer when made available by electronic download. Customer is solely responsible for installing any Software as permitted under the Agreement unless otherwise set forth in an Order. SaaS Services will be deemed delivered to Customer upon the activation of the SaaS Services on the Start Date identified in the Order. Where delivery is electronic, SparkCognition will not provide any physical media or hard copy Documentation to Customer. Software and SaaS Services are deemed accepted upon delivery.

2.2 Hardware Delivery and Returns. All Hardware is shipped CPT (Incoterms 2020), freight prepaid and add. Title to, and risk of loss of, the Hardware pass to Customer upon shipment. Hardware shipping dates quoted by SparkCognition are made in good faith but are not guaranteed; SparkCognition reserves the right to extend shipping dates as it deems necessary in its sole discretion, without liability to Customer. Installation of Hardware is the responsibility of the Customer unless otherwise agreed in a separate statement of work. No Hardware may be returned for credit or repair without the prior written authorization of SparkCognition. Authorized return shipments must be returned in good condition to SparkCognition’s designated receiving point, must be accompanied by a packing slip, including SparkCognition’s assigned Return Authorization Number, and must have transportation charges prepaid.

3. SERVICES

3.1 Maintenance and Support Services. SparkCognition will provide Maintenance and Support Services for the Software and SaaS Services ordered by Customer for the duration of the Order Term. SparkCognition reserves the right, in its sole discretion, to modify, discontinue, add, adapt, or otherwise change the Maintenance and Support Services. Maintenance and Support Services will terminate upon expiration or termination of the Order Term or upon Customer’s failure to pay the applicable Fees for Maintenance and Support Services when due.

3.2 Professional Services. SparkCognition will provide the Professional Services set forth in the applicable Statement of Work. Professional Services Fees associated with SOWs signed concurrently with a particular Order also may be listed in the Order itself. All SOWs will incorporate and be subject to the terms of the Agreement. Customer acknowledges that the provision of Professional Services by SparkCognition is dependent on Customer providing reasonable access to relevant resources, IT infrastructure, data, and providing timely decisions and input in connection with those Professional Services.

3.3 Restrictions on Use of SparkCognition Offerings. The Customer shall not use or permit any use of the Platform or the SparkCognition Offerings for any purpose or in any manner that may (a) menace or harass any person or cause damage or injury to any person or property, (b) involve the publication of any material that is false, defamatory, harassing, or obscene, (c) violate privacy rights or promote bigotry, racism, hatred, or harm, or (d) otherwise violate applicable laws, ordinances, or regulations. In addition to any other rights of SparkCognition under this Agreement, SparkCognition reserves the right to remove or disable access to any material or use that violates the foregoing restrictions, at no liability to the Customer.

4. PAYMENT

4.1 Fees and Expenses. Customer will pay the applicable Fees and any expenses as specified in the Order in accordance with the Agreement.

4.2 Taxes. All Fees are exclusive of any Taxes. Customer will pay to SparkCognition an amount equal to any Taxes arising from or relating to the Agreement, including sales, service, use or value added taxes, which are paid by or are payable by SparkCognition. If Customer is required under any applicable law or regulation to withhold or deduct any portion of the payments due to SparkCognition, then the sum payable to SparkCognition will be increased by the amount necessary so that SparkCognition receives an amount equal to the sum it would have received had Customer made no withholdings or deductions.

4.3 Verification of Use. SparkCognition has the right to audit Customer’s use of the Software and SaaS Services during the term of the Agreement and for 24 months thereafter. SparkCognition may only conduct an audit once per 12-month period, and audits will be scheduled at a mutually agreeable time at Customer’s facilities during normal business hours. Customer will provide SparkCognition and its independent auditors with access to Customer’s equipment, books, records, and operations at reasonable times, and Customer will cooperate in all respects necessary to enable SparkCognition and its independent auditors to verify Customer’s compliance with the Agreement. If an audit reveals that Customer has failed to pay Fees consistent with its use of the SparkCognition Offerings, Customer will pay SparkCognition the applicable Fees for the overuse, based on the then-current per-unit rate on the applicable Order, and reimburse SparkCognition for all reasonable costs and expenses incurred by SparkCognition in connection with that audit.

4.4 Suspension. SparkCognition reserves the right to suspend access to, and provision of, the SparkCognition Offerings provided to Customer if: (a) Customer is delinquent on any payment obligations for more than 30 days following written notice of late payment; (b) SparkCognition reasonably believes that suspension of the SparkCognition Offerings is necessary to comply with the law or requests of governmental entities; or (c) SparkCognition reasonably determines that Customer’s use of the SparkCognition Offerings in violation of this Agreement poses any security or vulnerability risk to SparkCognition, its other customers, or the SparkCognition Offerings. Customer is only responsible for Fees during the period of suspension if the underlying cause was Customer’s breach of the Agreement. SparkCognition will endeavor to give advance notice of the suspension, to the extent it is able, considering the nature of the underlying cause. SparkCognition will restore access to the suspended SparkCognition Offerings promptly after the underlying cause of suspension is mitigated.

5. DATA

5.1 Customer Data. The Customer is solely responsible for any Customer Data collected through or provided to the Platform, and the Parties do not contemplate the sharing of any Personal Information other than de minimis information. As such, the Customer is solely subject to and responsible for compliance with any Data Laws, including providing appropriate notifications and collect releases to its employees, customers and all other persons entering onto Customer’s premises of any cameras or other devices which may capture the Personal Information of such persons. Customer is solely responsible for collecting and providing Customer Data to SparkCognition that is needed for SparkCognition’s provision of the SparkCognition Offerings, and Customer represents and warrants that it has full rights to release Customer Data to SparkCognition as contemplated by this Agreement. SparkCognition does not and is not obligated to verify, authenticate, monitor, or edit the Customer Data or any other information or data provided to SparkCognition (including for use in the development of Models for Customer) for completeness, integrity, quality, accuracy or otherwise. Customer, not SparkCognition, is responsible and liable for the completeness, integrity, quality and accuracy of Customer Data. SparkCognition does not guarantee or make any promises regarding the accuracy or completeness of the Customer Data. Customer retains ownership of any Intellectual Property Rights that it holds in Customer Data. When Customer or a User uploads, submits, stores, or sends Customer Data to SparkCognition in connection with the SparkCognition Offerings, Customer hereby grants SparkCognition (and its third-party service providers) a worldwide, perpetual, non-exclusive license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes SparkCognition makes so that Customer Data is better utilized), communicate, perform, display and distribute Customer Data for purposes of providing the SparkCognition Offerings to Customer, and to support, enhance or improve SparkCognition Offerings. SparkCognition may use Customer Data and information about how the SparkCognition Offerings are used to develop anonymized, hashed, aggregated, or other de-identified data for analytics purposes (“Statistical Data”), which may be provided to third parties. Statistical Data shall not contain any information identifying Customer or Personal Information of any individual. SparkCognition retains ownership in all Statistical Data, including any analysis performed or conclusions drawn from such data, together with any improvements made to the SparkCognition Offerings as a result of such data. The provision and use of SparkCognition Offerings is subject to SparkCognition’s then-current Privacy Policy available on its website.

5.2 Anti-Virus. Customer will, and will ensure that its Users will, (a) deploy and maintain current up-to-date commercially available, and consistent with industry standards, anti-virus, anti-spam, anti-malware software on all information system components including personal computers, laptops, and servers, where applicable, used for the purpose of accessing and transmitting Customer Data to SparkCognition, (b) provide for regular scanning for viral infections and update virus signature files frequently, and (c) immediately inform SparkCognition if it becomes aware of the possibility of transmission of any virus, spam or malware to SparkCognition.

6. WARRANTIES; DISCLAIMER

6.1 SparkCognition Warranty. SparkCognition warrants to Customer that the Software and the SaaS Services will perform substantially in accordance with the applicable Documentation for a period of 60 days after delivery. If the Software or the SaaS Services do not conform to this warranty in any material respect, then as Customer’s exclusive remedy and SparkCognition’s sole liability and obligation, SparkCognition will use commercially reasonable efforts to correct the non-conforming Software or SaaS Services. SparkCognition warrants to Customer that it will perform the Professional Services in a professional manner and that deliverables associated with the Professional Services will materially comply with the requirements of the applicable SOW for a period of 60 days after delivery. If the Professional Services or applicable deliverables do not conform to this warranty in any material respect, then as Customer’s exclusive remedy and SparkCognition’s sole liability and obligation, SparkCognition will use commercially reasonable efforts to correct the Professional Services and applicable deliverables.

6.2 User Responsibility. The Software, SaaS Services, and Models or results generated by their use must only be used by professionals trained in the industry in which they are used. Cognitive tools like the Software and SaaS Services are not substitutes for independent professional judgment and testing the safety, accuracy, completeness, and validity of results. SparkCognition is not liable for results or actions suggested by the Models, results generated by the Software or SaaS Services, or the decisions made by users based on those results or suggestions. CUSTOMER EXPRESSLY AGREES AND ACKNOWLEDGES THAT SPARKCOGNITION OFFERINGS SERVE TO SOLELY TO MITIGATE RISKS AND FACILIATE CUSTOMER DECISION-MAKING AND THAT CUSTOMER THEREFORE RETAINS THE RISKS ASSOCIATED WITH ITS OPERATIONS AND ANY ACTIONS OR OMISSIONS OF ITS DIRECTORS, MANAGERS AND EMPLOYEES. Users, and not SparkCognition, are solely responsible for the accuracy and completeness of the data submitted, and for establishing independent test and verification guidelines to test the reliability and accuracy of output of the Software and SaaS Services, including any Models, results and recommended actions.

6.3 Hardware Pass-Through. SparkCognition does not warrant Hardware, and all Hardware is provided AS-IS, WITH ALL FAULTS. However, SparkCognition will use commercially reasonable efforts to pass through to Customer the benefit of any warranties offered by the third-party manufacturers of the Hardware.

6.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. SPARKCOGNITION DOES NOT WARRANT THAT THE SPARKCOGNITION OFFERINGS WILL MEET CUSTOMER’S NEEDS OR REQUIREMENTS OR THAT THE PROVISION OF THE SPARKCOGNITION OFFERINGS WILL BE UNINTERRUPTED, AVAILABLE AT ANY PARTICULAR TIME, OR ERROR-FREE. FURTHER, SPARKCOGNITION DOES NOT WARRANT THAT ALL ERRORS IN THE SPARKCOGNITION OFFERINGS ARE CORRECTABLE OR WILL BE CORRECTED. Customer agrees that its purchase of SparkCognition Offerings is not contingent on the delivery of any future functionality or features, nor dependent on any oral or written public comments made by SparkCognition with respect to future functionality, features or product roadmaps.

7. INTELLECTUAL PROPERTY

7.1 SparkCognition Ownership. As between the parties and except for the limited express license granted to Customer under the Agreement, SparkCognition retains ownership of all right, title and interest, including all related Intellectual Property Rights, in and to the Software, SaaS Services, SparkCognition Materials and Maintenance and Support Services and the Models. As between the parties, SparkCognition retains ownership of all Intellectual Property Rights in and to the Hardware.

7.2 Customer Ownership. As between the parties and except for the limited express license granted to SparkCognition under the Agreement, Customer retains ownership of all right, title and interest, including all related Intellectual Property Rights, in and to all Customer Data.

7.3 General Skills. Nothing in the Agreement is intended to prohibit or limit SparkCognition from using any “skills or knowledge of a general nature” acquired during the course of providing the SparkCognition Offerings. For purposes of the Agreement, “skills or knowledge of a general nature” includes, without limitation, information publicly known or that could reasonably have been acquired in similar work performed for another customer, but does not include Customer’s Confidential Information.

8. CONFIDENTIALITY. The receiving party (“Recipient”) will maintain all of the disclosing party’s (“Discloser”) Confidential Information in confidence and will protect such information with the same degree of care that Recipient exercises with its own Confidential Information, but in no event less than a reasonable degree of care. Recipient will not use Discloser’s Confidential Information except to carry out its rights and obligations under the Agreement. Recipient will not divulge Discloser’s Confidential Information (or any information derived therefrom) to any third party except to Representatives of Recipient, and will limit access to and use of any of Discloser’s Confidential Information to those Representatives of Recipient who have a need to use the information to exercise Recipient’s rights under or perform under the Agreement, and who are subject to a contractual, professional or other obligation to keep such information confidential that is no less protective of Discloser than this Section 8. Each party is responsible for any violation of this Section 8 by its Representatives. If Recipient suffers any unauthorized disclosure, loss of, or inability to account for Discloser’s Confidential Information, Recipient will promptly notify and cooperate with Discloser, and take such actions as may be necessary or reasonably requested by Discloser to minimize the damage. If Recipient is legally required to disclose Discloser’s Confidential Information (including, without limitation, Customer Data), Recipient will, as soon as reasonably practicable, provide Discloser with written notice of the applicable order or subpoena creating the obligation to enable Discloser to seek a protective order or other appropriate remedy, unless such notice is prohibited by applicable law. In addition, Recipient will exercise reasonable efforts, at Discloser’s expense, to obtain assurance that confidential treatment will be accorded to such Confidential Information and will make no disclosure in excess of that which is required. Each party may disclose information concerning the Agreement and the transactions contemplated hereby, including providing a copy of the Agreement, to any or all of the following: (a) potential acquirers, merger partners, investors, lenders, financing sources, and their personnel, attorneys, auditors and investment bankers, solely in connection with the due diligence review of such party by such persons and provided that such disclosures are made in confidence, (b) the party’s outside accounting firm, (c) the party’s outside legal counsel. Each party may also disclose the Agreement in connection with any litigation or legal action concerning the Agreement to the extent such disclosure is required or recommended upon advice of counsel, and (d) pursuant to a registration statement, annual, quarterly or current report, proxy statement, or other filing with, and any exhibits thereto, filed with the Securities and Exchange Commission, securities exchange or quotation service, or any state securities commission, or any other associated documents or materials so filed or furnished. All of Discloser’s Confidential Information disclosed to Recipient, and all copies thereof, are and will remain the property of Discloser.

9. TERM AND TERMINATION

9.1 Term. The term of the Agreement begins on the Order Date and will remain in force until there are no Orders or SOWs in effect for a period of six consecutive months, unless terminated earlier in accordance with the terms of the Agreement. The Order Term is as stated in the Order. The term of each SOW for Professional Services is as stated in the SOW.

9.2 Termination. Each party will have the right to terminate the applicable Order if the other party breaches any term of the Agreement and fails to cure such breach within 30 days (or 10 days in the case of non-payment) after written notice thereof.

9.3 Effect of Termination. The termination or expiration of the Agreement (or any individual Order) for any reason will not affect either party’s rights or obligations that expressly or by their nature continue and survive (including the payment terms and the provisions concerning ownership, confidentiality, limitation on liability, indemnity and warranty disclaimers), and Customer will promptly pay to SparkCognition any and all unpaid amounts due under the Agreement. Upon the termination or expiration of the Agreement (including any individual Order), Customer will (a) within five days return or destroy, at SparkCognition’s direction, any and all Software and SparkCognition Materials relating to the expired or terminated Order(s), and all copies thereof, and (b) upon SparkCognition’s request certify in writing to SparkCognition that all actions required by the preceding clause (a) has been satisfied. Further, each party as Recipient will either return or destroy any and all Confidential Information of the Discloser, and all copies thereof, at the direction of the Discloser and provide written proof of same upon the Discloser’s reasonable request.

10. INDEMNIFICATION

10.1 SparkCognition Obligations. SparkCognition will, at its own cost and expense, defend Customer against any cause of action, claim, suit or proceeding (each a “Claim”) made or brought against Customer by a third party to the extent the Claim alleges that Customer’s permitted use of the Software or SaaS Services infringes or misappropriates any copyright, trade secret or any patent issued in the U.S., Canada or the European Union of a third party, and indemnify Customer for any damages finally awarded against Customer, or agreed upon by SparkCognition in settlement, and incidental costs reasonably incurred by Customer in connection with the Claim. If a Claim under this Section 10.1 is brought or threatened, or SparkCognition believes is likely to occur, SparkCognition may, at its option, (a) procure for Customer the right to use the Software or SaaS Services, or (b) replace the Software or SaaS Services with non-infringing products that are functionally equivalent in all material respects, or (c) if neither option (a) nor option (b) can be accomplished despite SparkCognition’s commercially reasonable efforts, then SparkCognition may terminate the Orders with respect to such Software or SaaS Services, as applicable, and upon return or cessation of use of the Software or SaaS Services, as applicable, issue a pro-rata refund or credit to Customer for any prepaid Fees corresponding to the remaining Order Term of the Software or SaaS Services, as applicable, after the date of termination. SparkCognition will have no liability under the Agreement or otherwise to the extent a Claim is based upon (i) use of the Software in combination with software, hardware or technology that is not reasonably necessary to use the Software and not provided by or specified by SparkCognition, if infringement would have been avoided in the absence of the combination, (ii) modifications to the Software not made by or for SparkCognition, if infringement would have been avoided by the absence of the modifications, (iii) SparkCognition’s use of any Customer Data or any other Customer-provided material in accordance with the Agreement; (iv) Customer’s use of the Software or SaaS Services in violation of the Agreement; (v) SparkCognition’s compliance with a Customer-provided specification or instruction or (vi) use of any version other than a current release of the Software, if infringement would have been avoided by use of a current release made available to Customer.

10.2 Customer Obligations. Customer will, at its own cost and expense, defend SparkCognition against any Claim made or brought against SparkCognition by a third party, to the extent arising out of or attributable to (a) Customer Data or any other materials provided by Customer hereunder, or (b) any decision or action taken by Customer based on the SparkCognition Offerings or results generated by their use, and indemnify SparkCognition for any damages finally awarded against SparkCognition, or agreed upon by Customer in settlement, and incidental costs reasonably incurred by SparkCognition in connection with the Claim.

10.3 Indemnity Process. The indemnified party must (a) notify the indemnifying party promptly in writing of the Claim, setting forth in reasonable detail the facts and circumstances surrounding the Claim; (b) give the indemnifying party sole control of the defense of the Claim and any related settlement negotiations, including not making any admission of liability or take any other action that limits the ability of the indemnifying party to defend the Claim; and (c) cooperating and, at the indemnifying party’s request and expense, assisting in such defense. However, the indemnifying party shall not settle any Claim without the indemnified party’s prior written consent, which will not be unreasonably withheld or delayed, unless the settlement unconditionally releases the indemnified party of all liability, and imposes no obligations or restrictions on the indemnified party. The indemnified party may engage counsel of its choice at its own expense.

11. LIMITATION ON LIABILITY

11.1 Limitation on Liability. EXCEPT AS PROVIDED IN SECTION 11.3 BELOW AND FOR FEES DUE BUT UNPAID, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER FOR THE SPARKCOGNITION OFFERING GIVING RISE TO THE CLAIM IN THE 12 MONTHS PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO SUCH LIABILITY OCCURRED. THE LIMITATIONS CONTAINED IN THIS SECTION 11 APPLY IN SPITE OF ANY FAILURE OF THE ESSENTIAL PURPOSE OF THE AGREEMENT OR ANY LIMITED REMEDY HEREUNDER. THIS IS AN AGGREGATE LIMITATION AND MULTIPLE CLAIMS WILL NOT EXPAND IT.

11.2 Exclusion of Consequential and Related Damages. EXCEPT AS PROVIDED IN SECTION 11.3 BELOW, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOSS OF LIFE, PHYSICAL INJURY, LOST PROFITS, DATA OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, REGARDLESS OF WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND IN SPITE OF ANY FAILURE OF THE ESSENTIAL PURPOSE OF THE AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.

11.3 Exclusions to Sections 11.1 and 11.2. NOTWITHSTANDING THE LIMITATIONS SET FORTH IN SECTIONS 11.1 AND 11.2 ABOVE, IN NO EVENT WILL EITHER PARTY’S LIABILITY TO THE OTHER PARTY BE LIMITED FOR (A) EITHER PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 10, (B) CUSTOMER’S BREACH OF THE LICENSE GRANT(S) OR RESTRICTIONS IN SECTIONS 1, 5.1, OR 7.1, OR (C) CLAIMS ARISING OUT OF EITHER PARTY’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.

12. MISCELLANEOUS

12.1 Governing Law and Dispute Resolution. The governing law, jurisdiction, and dispute resolution provisions for any controversy or dispute arising out of or relating to the Agreement depend on where the Customer is domiciled:

• • (a) If Customer is domiciled in the United States, Canada or Mexico (“North America”): (i) the laws of the State of Texas govern all matters arising out of the Agreement, excluding rules as to choice and conflict of law, and (ii) all disputes arising out of or in connection with the Agreement will be finally settled under the Commercial Arbitration Rules of the American Arbitration Association using expedited procedures by one or more arbitrators appointed in accordance with those Rules. The place of the arbitration will be Austin, Texas; and
  •  

• • (b) If Customer is domiciled outside of North America: (i) the laws of the State of New York govern all matters arising out of the Agreement, excluding rules as to choice and conflict of law, and (ii) all disputes arising out of or in connection with the Agreement will be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with those Rules. The place of the arbitration will be New York City, New York.
  •  

• • (c) Regardless of Customer’s domicile, the following provisions apply to any arbitration proceedings arising out of or relating to the Agreement: The language of the arbitration will be English. Judgment upon any award(s) rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The parties waive any right to appeal the arbitral award, to the extent a right to appeal may be lawfully waived. Each party retains the right to seek judicial assistance to: (i) compel arbitration; (ii) obtain interim measures of protection before or pending arbitration, (iii) seek injunctive relief in the courts of any jurisdiction as may be necessary and appropriate to protect the unauthorized disclosure of its proprietary or confidential information, and (iv) enforce any decision of the arbitrator(s), including the final award. The parties will share equally in the costs of the arbitration arbitrator(s) will award to the prevailing party, if any, as determined by the arbitrator(s), its reasonable attorneys’ fees and costs, including the costs of the arbitration. The parties shall keep confidential all awards in their arbitration, together with all materials in the proceedings created for the purpose of the arbitration and all other documents produced by the other party in the proceedings not otherwise in the public domain, save and to the extent that disclosure may be required of a party by legal duty, to protect or pursue a legal right, or to enforce or challenge an award in legal proceedings before a court or other judicial authority. If any action is brought to enforce any provision of the Agreement or to declare a breach of the Agreement, then the prevailing party will be entitled to recover, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorney’s fees, incurred thereby. For purposes of this Section only, “prevailing party” means the party that prevails on a majority of causes of action in such dispute.
  •  

12.2 Assignment. Customer shall not assign or transfer (whether by merger, operation of law or otherwise) the Agreement, in whole or in part, without SparkCognition’s prior written consent, such consent not to be unreasonably withheld. A change of control of Customer will be deemed an assignment for purposes of this Section. SparkCognition may assign or transfer its rights and delegate its obligations under the Agreement, without Customer’s consent, to an affiliate or pursuant to a corporate reorganization, merger, acquisition or sale of all or substantially all of its assets to which the Agreement relates. Any attempted assignment or delegation in violation of the foregoing is void. The Agreement is binding upon the parties and their successors and permitted assigns.

12.3 Subcontractors. SparkCognition may subcontract parts of the SparkCognition Offerings to third parties. SparkCognition is responsible for breaches of the Agreement caused by its subcontractors.

12.4 Independent Contractor. The parties are independent contractors. Nothing contained herein or done pursuant to the Agreement will constitute a joint venture, partnership or agency for the other for any purpose or in any sense whatsoever and neither party will have the right to make any warranty or representation to such effect.

12.5 U.S. Government Users. If Customer is an agency, department, or other entity of the United States government (“U.S. Government”), the use, duplication, reproduction, release, modification, disclosure or transfer of the Software, manuals, or any technical specifications, or any related documentation of any kind, including technical data (for the purposes of this Section, “Software and documentation”), is restricted in accordance with Federal Acquisition Regulation (FAR) 12.212 for civilian agencies and Defense Federal Acquisition Regulation Supplement (DFARS) 227.7202 for military agencies. The Software and documentation is commercial computer software and commercial computer software documentation. The use of the Software and documentation is further restricted in accordance with the terms of the Agreement, or any modification thereto.

12.6 Open Source Software. Certain items of software included with the SparkCognition Offerings are subject to “open source” or “free software” licenses (“Open Source Software”). Some of the Open Source Software is owned by third parties. Nothing in this document limits Customer’s rights or obligations under the terms and conditions of any applicable end user license for the Open Source Software.

12.7 Remedies. The parties agree that money damages are not a sufficient remedy for any breach or anticipated breach of Section 1 (Usage Rights and Restrictions), Section 7 (Intellectual Property) and Section 8 (Confidentiality) or any other provisions of the Agreement which may cause either party irreparable injury or may be inadequately compensable in monetary damages. Accordingly, each party is entitled to seek specific performance, injunctive or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of proving irreparable harm or posting bond and without waiving any other remedies at law or in equity which may be available in the event of any action to enforce such provisions.

12.8 No Third-Party Beneficiaries. No provision of the Agreement is intended nor will be interpreted to provide or create any third-party beneficiary rights or any other rights of any kind in any third party, affiliate or subsidiary, and all provisions hereto are solely between SparkCognition and Customer.

12.9 Notices. Unless otherwise provided herein, any notice, request, or other communication will be given in writing under the Agreement and will be deemed to have been given by either party to the other party (a) upon the date of receipt, if hand delivered, (b) two business days (five business days for international addresses) after deposit in the U.S. mail if mailed to the other party by registered or certified mail, properly addressed, postage prepaid, return receipt requested, (c) one business day (two business days for international addresses) after deposit with a national express courier for next business day delivery (three business days for international addresses), or (d) upon the date of electronic confirmation of receipt of a facsimile or email transmission. Notices to (i) SparkCognition will be sent to 12708 Riata Vista Cir Suite B-100, Austin, TX 78727 to the attention of: General Counsel, and (ii) Customer will be sent to Customer’s primary address and contact provided to SparkCognition in the Order, or at such other address as given by either party to the other in writing.

12.10 English Language. The Agreement is in the English language only, which language will control in all respects. No translation, if any, of the Agreement into any other language for convenience or to meet local requirements will be of any force or effect in the interpretation of the Agreement or in determination of the interests of either party. All correspondence, notices, claims, suits and other communication between the parties hereto shall be written or conducted in English. It is the express wish of the parties that the Agreement and any related documents have been drawn up in a language other than French. French translation: Il est de la volonté expresse des parties que le présent contrat et tous les documents qui s’y rattachent soient rédigés dans une langue autre que le français.

12.11 Local Laws; Compliance with Law. Customer represents and warrants that, to the best of Customer’s knowledge, the provisions of the Agreement, and the rights and obligations of the parties hereunder, are enforceable under the laws of the countries within which the SparkCognition Offerings will be used. Customer and Users will use the SparkCognition Offerings in compliance with the requirements of the Agreement and all applicable law. Without limiting the foregoing, Customer acknowledges that the SparkCognition Offerings, and related technical data received from SparkCognition may be subject to U.S. export and import controls. In using the SparkCognition Offerings, and related technical data, Customer will comply with all applicable laws, and shall not commit any act that, directly or indirectly, would violate any United States law, regulation or order, including tax, export and foreign exchange laws, import controls, and export controls. Additionally, Customer agrees that the SparkCognition Offerings, and related technical data are not to be used, acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor used for nuclear activities, chemical or biological weapons, or missile projects unless authorized by the U.S. Government.

12.12 Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under the Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, pandemic, governmental act or failure or degradation of the Internet. The delayed party shall give the other party notice of the force majeure, the anticipated impact of the force majeure on the affected party’s performance, and use commercially reasonable efforts to correct its failures or delays in performance.

12.13 Entire Agreement. The Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof. The Agreement supersedes all prior or contemporaneous negotiations, representations, promises, and agreements concerning the subject matter herein whether written or oral. The term “includes”, “including” and the like means “including without limitation”. Amendments: The Agreement may be modified solely by a writing signed by both parties, except as permitted under Section 1.6. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Customer may use in connection with the acquisition or licensing of the SparkCognition Offerings will have any effect on the rights, duties or obligations of the parties under the Agreement, or otherwise modify the Agreement, regardless of any failure of SparkCognition to object to such terms, provisions, or conditions. Waiver: A waiver of any breach of the Agreement is not deemed a waiver of any other breach. Severability: If any provision of the Agreement is held to be invalid or unenforceable, the invalidity or unenforceability will not affect the other provisions of the Agreement. Electronic Signatures: Electronic signatures that comply with applicable law are deemed original signatures. Counterparts: The Agreement may be executed in counterparts and by facsimile or electronic signature, all of which taken together constitute a single agreement between the parties. Each signed counterpart, including a signed counterpart reproduced by reliable means (such as facsimile and electronic signature), will be considered as legally effective as an original signature.

GLOSSARY

“Agreement” means has the meaning given in the Order.

“Confidential Information” means and includes any software, data, technical, business, financial, operational, customer, vendor or other information disclosed or provided by one party or any of its Representatives to the other party or any of its Representatives, whether before or after the Order Date, whether in writing, orally, visually (or other non-tangible format) or any other means. The Software (in source code, object code or any other format), SaaS Services, SparkCognition Materials, and any Documentation, release notes, collateral materials, operating instructions and information provided by SparkCognition will be considered SparkCognition’s Confidential Information. Confidential Information does not include information that: (a) was or becomes available to the Recipient on a nonconfidential basis from a source other than the Discloser or its Representatives; provided that such source is not bound by any confidentiality agreement with, or other contractual, legal or fiduciary obligation of secrecy to Discloser; (b) at the time of disclosure or thereafter is or becomes available to and widely known by the public as to be reasonably regarded as public information, other than as a result of disclosure by Recipient or any of its Representatives in breach of the Agreement; (c) is developed by Recipient independently of any disclosure hereunder or reference to Discloser’s Confidential Information, as evidenced by Recipient’s records, and without violating any of Recipient’s obligations under the Agreement; or (d) is disclosed by Recipient with Discloser’s prior written express approval.

“Customer Data” means any information, data, data sets, text or other Customer content used by Customer to develop Models, or supplied by Customer or a User to SparkCognition in connection with any SparkCognition Offering.

“Data Law” means, as in effect from time to time, any law, rule, regulation, declaration, decree, directive, statute or other enactment, order, mandate or resolution, which is applicable to either party, issued or enacted by any domestic or foreign, supra-national, national, state, county, municipal, local, territorial or other government or bureau, court, commission, board, authority, or agency, anywhere in the world, relating to data security, data protection and/or privacy, including the General Data Protection Regulation and the California Consumer Privacy Act.

“Fees” means the amounts specified in the Order as payable for the applicable SparkCognition Offerings, and any other fees due and payable under or in connection with the Agreement.

“Hardware” means the hardware, equipment, or other goods to be sold by SparkCognition to Customer as specified in one or more Orders.

“Intellectual Property Rights” means all patents, copyrights, mask work rights, trade secrets, trademarks, and moral rights, whether or not registered, and all applications therefor and registrations, renewals and extensions thereof, under the laws of any state, country, territory, or other jurisdiction.

“Maintenance and Support Services” means the maintenance and support services for the Software or SaaS Services, as applicable, provided by SparkCognition to Customer as set forth in SparkCognition’s Maintenance and Support Guidelines referenced in the Order.

“Models” means the specific models developed by processing Customer Data through any Software or SaaS Services other than Visual AI Advisor or SparkCognition EPP.

“Order” means one or more SparkCognition orders executed by the parties for the license and purchase of SparkCognition Offerings, and into which the SCA is incorporated.

“Order Date” means the effective date of the Order, as identified in the Order.

“Order Term” has the meaning given in the Order.

“Personal Information” means any information relating to an identified or identifiable person or household, or the meaning ascribed to a term of like import in applicable Data Laws.

“Policies” means the operational guidelines and policies applied by SparkCognition to provide and support the SparkCognition Offerings as incorporated in an Order.

“Platform” means SparkCognition’s proprietary technology platform that powers the SaaS Services.

“Professional Services” means those professional services to be performed by SparkCognition for Customer in connection with the Software or SaaS Services as specified in an Order, and as more fully described in one or more Statements of Work.

“Representatives” means, with respect to a party, such party’s affiliates or subsidiaries, and its and their employees, directors, officers, advisors, consultants, subcontractors or other agents or representatives.

“SaaS Services” means the Software provided and made available as software-as-a-service that is accessible through the Platform, as specified in the Order.

“Software” means SparkCognition’s proprietary software product specified in the Order, in object code form, and related user documentation (“Documentation”), owned, developed or licensed by SparkCognition, and delivered or made available to Customer by SparkCognition under the Agreement, including any Updates and Upgrades (as defined in Maintenance and Support Services Guidelines) thereto provided or made available to Customer by SparkCognition. The Software includes any SparkCognition or third-party API and/or SDK provided or made available by SparkCognition to enable or support Customer’s licensed use of the Software.

“SparkCognition Materials” means information, know-how, data, data sets, algorithms, software and other computer programs (in source code, object code or any other format), technical information, specifications, models created without using Customer Data, configuration information, methods, procedures, techniques and protocols.

“SparkCognition Offerings” means, collectively, all of the Software, SaaS Services, Hardware, Maintenance and Support Services, Professional Services, and other products and services as described in an Order and any associated Statements of Work.

“Statement of Work” or “SOW” means one or more statements of work signed by the parties from time to time referencing an Order that describe the Professional Services, managed services or other services that SparkCognition is to perform for Customer.

“Taxes” means any form of taxation, levy, duty, charge, contribution or impost of whatever nature and by whatever authority imposed (including any fine, penalty, surcharge or interest), excluding any taxes based solely on the net income of SparkCognition.

“Usage Allowance” means any usage limits (including the number of Users, assets, end user node limits, and server limits), quantities or other parameters specified in the Order with respect to Customer’s licensed use of the Software or access to the SaaS Services.

“Users” means the individuals authorized by Customer to access and use the Software and/or the SaaS Services at any one time through the Customer’s account under the Agreement, and for whom Customer has issued or approved access credentials. Subject to the specific Software or SaaS Services, Customer may identify certain Users who will have specific roles or administrative, security and supervisory capacities with respect to the Software or SaaS Services made available to Customer under the Agreement.