Terms of Service

1. SOLUTIONS; USER ACCESS; AND CUSTOMER OBLIGATIONS

1.1 SaaS Software License. Subject to the terms hereof, Provider hereby grants Customer a non-exclusive, non-transferable (except for a permitted assignment), non-sublicensable right and license, during the Order Term, and within the Licensed Territory, to access and use the SaaS Software for Customer's internal business purposes, subject to and in accordance with the terms of this Agreement, the Documentation and the Order. Except for the authorized use by Services Users as described in Section 1.2 hereof, use of the SaaS Software is limited to the Licensed Practices (as defined in the Order) ("Licensed Practice(s)") and their respective Representatives. Customer shall not exceed any volume usage metrics specified in the Order. If Customer's use exceeds such metrics, Customer shall pay overage fees at the rates set forth in the Order (or, if not stated, at Provider's then-current standard overage rates) for such excess usage. Customer is responsible for the Licensed Practices and their respective Users' (including Services Users) use of the SaaS Software, their compliance with the terms of this Agreement, for their acts and omissions in the performance of this Agreement, and for any Customer Data processed through the SaaS Software.

1.2 Services Users. Customer has the right to permit its Services Users a non-exclusive, limited, personal right to use and access the SaaS Software solely for its intended purpose to interact with and communicate and transmit information to and from its Services Users. Services Users shall use the SaaS Software solely as described in the Order. Customer shall enter into a written agreement with its Services Users prior to their use of the SaaS Services containing the following minimum terms and conditions: (i) use restrictions that include the terms of Section 1.3 of this Agreement; (ii) confidentiality obligations and ownership terms with the same protections as set forth in this Agreement; (iii) a statement excluding all warranties and liabilities of any kind on behalf of Provider; and (iv) providing the applicable notices and obtaining the consents from Services Users as described in Section 4.3 hereof and obtaining the necessary right to process Services User's data for purposes of providing the SaaS Software in accordance with Section 3.2.

1.3 License Restrictions. Customer shall ensure that it and its Representatives and their Services Users, shall not (i) use the SaaS Software beyond the authorized scope of use under this Agreement and the Order; (ii) sublicense, resell, publish, transfer, or make the SaaS Software available to, use the SaaS Software on behalf of, or for the benefit of any third party; (iii) copy, modify, or create derivative works of the SaaS Software; (iii) reverse engineer, decompile or attempt to discover, expose or recreate the software or source code of the SaaS Software (or the underlying ideas, algorithms, structure or organization) of the SaaS Software, except as permitted by law; (iv) remove any proprietary notices, markings or disclosures on the SaaS Software or Documentation; (v) violate Provider's Intellectual Property Rights in the Solutions; (vi) use the Solutions in a manner that violates Applicable Laws including without limitation any Data Protection Laws, AI related laws or export laws; (vii) use the SaaS Software to engage in illegal activity; (viii) upload any deceptive, defamatory, obscene, pornographic or unlawful material; (ix) attempt to circumvent the security features of the SaaS Software or attempt to disable, evade, disrupt, or interfere with any content filters or safety systems that are part of SaaS Software; or (x) access or use the SaaS Software to build a similar or competitive product or service or publish or disclose to any third party any benchmarking or comparative analysis of the SaaS Software.

1.4 Provider Professional Services. Provider shall provide Professional Services solely if and as specified in an Order.

1.5 Provider Authorized User Access. Customer agrees to keep confidential the identification codes and/or passwords for the SaaS Software and to restrict access to such identification codes and passwords to its Internal Users. Customer agrees to notify Provider immediately if Customer has reason to believe that unauthorized persons have obtained access to its identification codes or passwords, or if Customer becomes aware of any other breach of security related to the SaaS Software. Provider reserves the right to temporarily suspend Customer's account and/or passwords to the extent necessary in the event of an actual or probable suspected security breach. Provider will endeavor to provide prior notice for any such suspension and will work in good faith with Customer to resolve the issue and restore access as soon as reasonably possible.

1.6 Customer Obligations; Customer Data Consents. Customer agrees to the following, as applicable, in connection with its use of the Services: (i) Customer is responsible for providing all computer systems, servers, network, communications and software necessary to connect to in order to access and use the SaaS Platform, including but not limited to, applicable application program interfaces consistent with any specifications or requirements set forth in the Order or Documentation; (ii) Customer shall be responsible for the accuracy and integrity of the Customer Data; (iii) Customer shall be responsible for backing up the Customer Data which is used in connection with the SaaS Software; and (iv) fulfilling Customer's obligations with regard to Personal Data as set forth in Section 4.3 hereof. Customer and its Users will have access to the Customer Data stored on the SaaS Software and will be responsible for all changes to and/or deletions of Customer Data.

2. ORDER; FEES & TAXES

2.1 Order Process. If Customer wishes to order Solution(s), the parties shall enter into one or more Orders. Each Order shall specify, as applicable, the Solution(s) ordered (including a description thereof), quantit(ies), Licensed Entit(ies), fee structure and fees, and Order subscription term and any applicable renewal terms.

2.2 Fees & Taxes. Customer agrees to pay Provider the fees specified in an Order. The invoicing schedule and payment terms for the fees shall be specified in the Order. Customer is responsible for any taxes due on account of its use and purchase of the Solutions including any excise, value-added, contractor tax and withholding taxes, but excluding taxes based on Provider's income. Interest shall accrue at a rate of 1% per month (or, if less, the maximum allowed by Applicable Law) on any overdue unpaid fees which are not the subject of a good faith dispute as to the correctness or accuracy of the invoice.

3. OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS

3.1 Ownership. Provider owns all right, title and interest to the Provider Property and any protectable Intellectual Property Rights therein. All rights in and to the Provider Property is reserved by Provider. Customer owns all right, title and interest to the Customer Data and any protectable Intellectual Property Rights therein. To the extent that any Customer Data created in the performance of the Solutions is subject to copyright protection, such Customer Data will be considered to be a "work made for hire" under the applicable copyright laws. Provider hereby expressly assigns to Customer all right, title and interest to any such Customer Data including any Intellectual Property Rights based in whole or in part thereon where they may exist.

3.2 Customer Data -- License Grant to Provider. Customer hereby grants Provider a non-exclusive, royalty-free, worldwide right to use, access, process, copy, store, transmit and transfer the Customer Data made available to Provider or process through the SaaS Software during the term of this Agreement solely for the purpose of (i) providing the Solutions; (ii) collecting and creating Usage Data in connection with providing the Solutions, tracking performance, providing support and making product improvements; and (iii) derive learnings (including through various machine learning and model tuning exercises) for the purposes of modifying, improving, monitoring, and testing the SaaS Software and SaaS Platform and creating insights, statistical analysis, benchmarking and comparative data ("Derived Data"). Customer hereby grants Provider a non-exclusive, royalty-free, worldwide, perpetual, irrevocable, unlimited right to use, process, publish, modify, distribute and otherwise exploit the Derived Data in an aggregated and deidentified form for the purpose of improving the SaaS Software and SaaS Platform.

3.3 Feedback. Customer hereby grants Provider a perpetual, irrevocable, royalty-free and fully paid right to use and otherwise exploit in any manner any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer related to the SaaS Software, including for the purpose of improving and enhancing the SaaS Software and SaaS Platform; provided that Customer is not referenced in such use.

3.4 Trademarks and Publicity. Provider may use Customer's name and Customer trademarks in its 'customer list' (including on Provider's website, social media and in sales and marketing materials) in the same manner in which it uses the names of its other customers. Except as expressly provided in this Section, Provider will not use Customer's name or logo publicly including in a client list, or in any promotional or marketing materials, except with Customer's prior written approval (email is sufficient). Customer may use Provider trademarks and logos solely as approved by Provider. Each party will comply with any trademark usage guidelines provided by the trademark owner.

3.5 Reservation of Rights. Notwithstanding anything herein to the contrary, provided that Provider does not use or disclose Customer Confidential Information, Provider shall be free to use, exploit and disclose its general skills, concepts, ideas, know-how, and expertise gained or learned during the course of the performance of this Agreement, and Provider shall not be restricted from creating output for other customers similar to that provided to Customer.

4. CONFIDENTIALITY; PERSONAL DATA AND DATA SECURITY

4.1 Confidentiality. During the term of this Agreement and continuing after termination of this Agreement, each party shall retain in confidence, and not use except as expressly authorized in this Agreement, the Confidential Information disclosed or made available by a disclosing party, its Licensed Entities or their respective Representatives, whether disclosed in written, oral, electronic or visual form, which is identified as confidential at the time of disclosure or should reasonably be understood to be confidential given the nature of the information and the circumstances surrounding the disclosure, including without limitation proprietary or non-public information relating to the disclosing party's business, operations, finances, technologies, products and services, pricing, personnel, customer and suppliers and expressly includes without limitation (i) with regard to Customer, the Customer Data, and (ii) with regard to Provider, the Provider Property ("Confidential Information"). The receiving party will use the same degree of care and discretion (but not less than reasonable care) to avoid disclosure or dissemination of the disclosing party's Confidential Information as it uses with its own information of a similar nature. Except as otherwise authorized in this Agreement or an Order, the receiving party will not disclose the Confidential Information of the disclosing party to a third party other than to its and the Licensed Entities and their respective Representatives in connection with its performance of this Agreement and the receiving party shall be liable to the disclosing party for any violation of this Agreement by the Licensed Entities and their Representatives. Confidential Information shall not include information that (a) is at the time of disclosure or subsequent to disclosure is publicly known or generally available in the public domain provided such availability did not result from a violation of the receiving party's obligations hereunder, (b) is lawfully received from a third party not bound in a confidential relationship with the disclosing party, (c) is already rightfully known to the receiving party prior to receipt from the disclosing party, or (d) was or is generated independently without use of the disclosing party's Confidential Information.

4.2 Permitted Disclosures. The receiving party may disclose Confidential Information as required to comply with orders of governmental entities that have jurisdiction over it, in connection with legal proceedings or as otherwise required by law, provided that the receiving party (i) to the extent permitted by law, gives the disclosing party reasonable advance written notice to allow the disclosing party to seek a protective order or other appropriate remedy, (ii) discloses only that portion of the Confidential Information as is required, and (iii) uses commercially reasonable efforts to obtain confidential treatment for any Confidential Information so disclosed.

4.3 Personal Data and AI Notices and Consents. Each party shall use Personal Data made available by or on behalf of the other party solely for the purpose of the performance of its obligations and the exercise of its rights as expressly provided for in this Agreement and/or an Order and solely in accordance with the instructions of the other party and in compliance with all Applicable Laws and the terms of any data processing Agreement or business associate agreement entered into between the parties as described in Section 4.4 hereof. Customer is responsible for providing any applicable privacy and artificial intelligence notices required under Applicable Law and obtaining a legally valid and binding consent, permission, approval, and/or opt-in from its respective Representatives and all Users (including Services Users) and from any third parties whose data is included in any Customer Data to be processed by Provider to authorize the lawful collection, disclosure, use, processing, and transfer of the Customer Data (including Personal Data) for the duration and purposes of this Agreement including to authorize Provider to use and process the Customer Data (including Personal Data) as necessary to provide the Solution for the purposes described in the Agreement including the right to integrate with, and pull Customer Data from any Third-Party Services. Unless otherwise agreed to in this Agreement, neither Customer, nor any of its Users, shall upload to the SaaS Platform any Customer Data that contains biometric data, government IDs, passport numbers or social security numbers. In the event that Provider is required by applicable law to provide Services Users any privacy notices or opt-ins, then the Services Users will be required to confirm such notice and consent prior to use of the SaaS Software. Such notice and consents will not relieve Customer of its obligations and responsibilities to provide the notices and obtain the consents as described in this Section 4.3.

4.4 Data Processing Agreement and Business Associate Agreement. If the parties enter into a data protection agreement ("DPA") or business associate agreement ("BAA"), such DPA and BAA is hereby incorporated by reference into this Agreement and the limitations and exclusions of liability set forth in this Agreement shall apply to such DPA and BAA.

4.5 Data Security. Each party shall establish and maintain administrative, physical and technical safeguards designed to guard against the destruction, loss, or alteration the other party's Confidential Information and Personal Data. Without limiting the foregoing, the receiving party shall at all times in connection with this Agreement: (i) maintain and enforce an information security program including administrative, physical and technical security policies and procedures with respect to its processing of Confidential Information and Personal Data consistent with commercially reasonable industry practices and any standards mutually agreed upon by the parties in writing; (ii) provide technical and organizational safeguards designed to protect against accidental, unlawful or unauthorized access to, use, destruction, loss, alteration, disclosure, transfer, commingling or processing of such information and ensure a level of security appropriate to the risks presented by the processing of such information and the nature of such information; and (iii) take commercially reasonable measures to secure its information systems against "hackers" and others who may seek, without authorization, to disrupt, damage, modify, access or otherwise use the Confidential Information and Personal Data stored therein.

5. REPRESENTATIONS & WARRANTIES

5.1 Authority. Each party hereby represents and warrants to the other party that it has the full corporate right, power and authority to enter into, and fully perform its obligations under this Agreement.

5.2 Compliance with Laws. Each party represents and warrants that it will comply with all Applicable Laws in connection the performance of its obligations and the exercise of its rights under this Agreement.

5.3 Third-Party Services. In order to provide the SaaS Software, the SaaS Platform may incorporate, utilize or integrate with certain third-party websites, services and applications including without limitation any third party licensed artificial intelligence services ("Third-Party Services"). To the extent applicable, Customer is responsible for enabling the integration of any such Third-Party Service and by doing so, Customer acknowledges that it is instructing Provider to share the Customer Data (including, to the extent necessary, any Personal Data) with the providers of such Third-Party Services in order to facilitate the integration. Customer is responsible for notifying such Third-Party Services providers of the integration. Such Third-Party Services are not under the control of Provider and Provider is not responsible or liable for any Third-Party Services. Customer's use of the Third-Party Services is governed by the Third-Party Services applicable agreements, and all applicable terms and policies including privacy and data gather practices of, the providers of the Third-Party Services. Customer acknowledges and agrees that, for the purposes of Applicable Data Protection Laws, each of Provider and the Third-Party Services providers are not processors or subprocessors of Personal Data with respect to each other.

5.4 Disclaimer. THE SOLUTIONS ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND PROVIDER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, ORAL, WRITTEN, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTIES OF NON-INFRINGEMENT. PROVIDER DOES NOT WARRANT OR GUARANTEE THAT THE OPERATION OR USE OF THE SAAS SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. PROVIDER DOES NOT WARRANT THE ACCURACY OF ANY OUTPUT PROVIDED BY THE SAAS SOFTWARE. PROVIDER DISCLAIMS ALL WARRANTIES AND LIABILITY RELATING TO THIRD-PARTY SERVICES OR ANY DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. GIVEN THE EXPERIMENTAL NATURE OF ARTIFICIAL INTELLIGENCE AND MACHINE LEARNING, USE OF THE SAAS SOFTWARE MAY RESULT IN INCORRECT, INACCURATE, OR OFFENSIVE CONTENT OR OUTPUT, OR OUTPUT THAT IS INACCURATE OR HARMFUL. CUSTOMER AND ITS REPRESENTATIVES' USE OF THE SAAS SOFTWARE IS AT ITS SOLE RISK. CUSTOMER IS SOLELY RESPONSIBLE FOR DETERMINING WHETHER OUTPUT IS APPROPRIATE AND FOR ANY USES OF, OR DECISIONS MADE BASED ON, ANY OUTPUT OR OTHER USE OF THE SAAS SOFTWARE. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT IS SOLELY CUSTOMER'S RESPONSIBILITY TO ENSURE THAT IT COMPLIES WITH ALL APPLICABLE LAWS AND STANDARDS.

6. INDEMNIFICATION

6.1 Provider Indemnity Obligations. Provider shall defend, indemnify and hold Customer and its Affiliates and their officers, directors and employees harmless from and against any and all claims, suits, actual damages, costs and expenses, including reasonable attorneys' fees, brought against or suffered by such Customer indemnified parties arising out of a third party claim or legal process (including a subpoena, order, deposition, interrogatories) that the SaaS Software infringes or violates any U.S. patent, or worldwide copyright or trade secret of a third party; provided however Provider's indemnification obligations shall not apply to the extent the claim arises out of (a) Customer's use of the SaaS Software in an unauthorized manner, (b) Customer Data, or (c) Third-Party Services. In the event of an infringement claim for which Provider is obligated to indemnify Customer, Provider shall, at its option, to (x) procure for Customer the right to continue to use the infringing SaaS Software, (y) provide Customer with a non-infringing substitute that would avoid the infringement claim, or (z) if the foregoing options are not commercially feasible, terminate the affected Order or the affected portion thereof and provide Customer with a pro-rata refund of the unused prepaid fees paid for the affected Solution.

6.2 Customer Indemnity Obligations. Customer shall defend, indemnify and hold Provider and its Affiliates and their officers, directors and employees harmless from and against any and all claims, suits, actual damages, costs and expenses, including reasonable attorneys' fees, brought against or suffered by such Provider indemnified parties arising out of any third party claim or legal process (including a subpoena, order, deposition, interrogatories) arising out of any claim relating to (i) the Customer Data; (ii) Customer's breach of its obligation to provide privacy notices and secure any necessary consents, permissions or opt-ins, any claim that the Customer Data; (ii) Customer's use of Third-Party Services; (iii) Customer's violation of Applicable Laws; and (iv) any claims made by a Services User arising out of their use of the Solutions.

6.3 Indemnity Process. The indemnifying party shall have the right to conduct and control the defense and settlement of any such claim for which it is obligated to provide indemnity hereunder; provided that the indemnified party shall have the right to participate in the defense at its own expense. The indemnified party shall give prompt notice of any claim for which indemnity is sought and shall reasonably cooperate in defending against such claim at the indemnifying party's expense.

6.4 Exclusive Remedy. This Section 6 sets forth Customer's sole remedies and Provider's sole liability for any actual, threatened or alleged claims that the Solutions infringe, misappropriate or otherwise violate any third party Intellectual Property Rights.

7. LIMITATIONS ON LIABILITY; REMEDIES

7.1 Limitations of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, REGARDLESS OF THE THEORY OF LIABILITY WHETHER IN CONTRACT, TORT OR OTHERWISE IN NO EVENT SHALL PROVIDER'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY ORDER, EXCEED THE PRO-RATED TOTAL AMOUNT OF THE FEES PAID AND PAYABLE BY CUSTOMER TO PROVIDER PURSUANT TO THE ORDER GIVING RISE TO THE CLAIM OVER THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

7.2 Liability Exclusions. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR CLAIMS ARISING OUT OF (I) EITHER PARTY'S BREACH OF ITS CONFIDENTIALITY, SECURITY, DATA PRIVACY AND/OR DATA PROTECTION OBLIGATIONS UNDER THIS AGREEMENT OR A PARTY'S OBLIGATIONS UNDER ANY RELATED DATA PROTECTION, PRIVACY AND/OR SECURITY AGREEMENT INCLUDING ANY CLAIM FOR INDEMNIFICATION OR VIOLATION OF LAW RELATING THERETO; (II) EITHER PARTY'S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, (III) CUSTOMER'S BREACH OR VIOLATION OF THE TERMS OF SECTION 1.3 (LICENSE RESTRICTIONS) HEREOF; OR (IV) CUSTOMER'S OBLIGATION TO PAY THE AGREED UPON FEES AS SET FORTH IN AN ORDER, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER OR TO ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING LOST OR ANTICIPATED REVENUES OR PROFITS, LOSS OF BUSINESS, OR LOSS OF OR DAMAGE TO SOFTWARE OR DATA) FOR ANY CLAIM RELATING TO THIS AGREEMENT OR ANY ORDER, EVEN IF SUCH PARTY IS ADVISED OF THE POSSIBILITY THEREOF.

8. TERM & TERMINATION; SUSPENSION; DATA DESTRUCTION

8.1 Term of this Agreement. This Agreement shall remain in effect so long as an Order is in effect, unless or until terminated by either party in accordance with the terms of this Agreement (the "Term"). If there is no Order in effect, this Agreement may be terminated by either party for any reason by written notice.

8.2 Term & Renewal of Orders. Unless otherwise stated in an Order, the initial Order term is one (1) year. Each Order shall automatically renew for additional one (1) year term(s), unless either party provides written notice of non-renewal at least 30 days prior to the then current Order Term. The initial Order term together with the renewal term(s) thereof shall be referred to herein as the "Order Term."

8.3 Termination of an Order. An individual Order may be terminated by either party (in whole but not in part) as follows: (1) by a party for convenience upon thirty (30) days prior written notice or (ii) by a party if the other party fails to cure a material breach of such Order, or of this Agreement as it relates to such Order, within thirty (30) days after receiving written notice of the breach from the non-breaching party.

8.4 Suspension. Provider reserves the right to suspend the provision of the Solutions, without terminating the Agreement, if any undisputed fees are not paid when due, provided that Provider provides 30 days' notice of the default and the fees are not paid within such notice period.

8.5 Destruction of Customer Data. Customer shall have access to its Customer Data stored on the SaaS Software and shall be responsible for deleting the Customer Data in accordance with Applicable Law. Within 30 days following termination or expiration of this Agreement and at any time upon Customer's written request, Provider will delete Customer Data. The parties understand that it may be impractical to delete system archival data and that such data shall be stored in the ordinary course subject to the confidentiality obligations set forth in this Agreement. Deletion requests during an active Order will be addressed where technically feasible without materially degrading the Solutions.

8.6 Effects of Termination. Immediately upon the termination of an Order, (a) Provider shall cease providing the Solutions, (b) upon request, each party shall promptly and securely destroy all of the Disclosing party's Confidential Information and shall certify to such destruction, and (c) Customer shall pay all fees owing and payable under any Orders provided that if Customer terminates an Order for cause pursuant to Section 8.2 hereof, Customer shall not owe any fees for Solutions not rendered and Customer is entitled to a pro-rata refund of the unused prepaid fees paid pursuant to the terminated Order. All terms intended to survive termination shall survive such termination.

9. MISCELLANEOUS

9.1 Governing Law. This Agreement will be governed by, and construed in accordance with, the internal laws of the Commonwealth of Massachusetts, without regard to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the transactions contemplated by this Agreement. The Uniform Computer Information Transactions Act ("UCITA") will not apply to this Agreement regardless of when and howsoever adopted, enacted and further amended under the governing state laws.

9.2 Assignment and Related Matters. Neither party may assign this Agreement, or any of its rights or obligations hereunder (in whole or in part) except with the prior written consent of the other party; provided, however that either party shall have the right to assign this Agreement, without the other party's consent, in whole (but not in part) to a successor in interest to the business of such party in connection with a merger, sale of substantially all of its assets, change of control or by operation of law, or to an Affiliate, provided that (i) the assignee agrees to assume the obligations under this Agreement and has adequate resources to meet its obligations hereunder; (ii) the assignment shall not change the scope of work to be performed under any Order then in effect; and (iii) in the case of an assignment by Customer, the assignee is not a direct competitor of Provider. The terms of this Agreement shall be binding upon the permitted successors and assigns of each party. Provider has the right to use Affiliates and subcontractors, in its sole discretion, in connection with its performance of this Agreement. Provider shall be responsible for the acts and omissions of its subcontractors (including its subprocessors) to the same extent as Provider would be responsible hereunder for its own acts and omissions.

9.3 U.S. Government Restricted Rights. If Customer is a government end user, then this provision also applies to Customer. The software contained within the SaaS Platform and the SaaS Software and provided in connection with this Agreement have been developed entirely at private expense, as defined in FAR section 2.101, DFARS section 252.227-7014(a)(1) and DFARS section 252.227- 7015 (or any equivalent or subsequent agency regulation thereof), and is provided as "commercial items," "commercial computer software" and/or "commercial computer software documentation." Consistent with DFARS section 227.7202 and FAR section 12.212, and to the extent required under U.S. federal law, the minimum restricted rights as set forth in FAR section 52.227-19 (or any equivalent or subsequent agency regulation thereof), any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government shall be governed solely by this Agreement and shall be prohibited except to the extent expressly permitted by this Agreement.

9.4 Force Majeure. If the performance of any obligation hereunder (excluding any payment obligation) is interfered with by reason of any circumstances beyond a party's reasonable control, including but not limited to acts of God, pandemic, power surges or failures, cloud-service provider outages or the act or omission of any third party, the party shall be excused from such performance to the extent necessary under the circumstances, provided the party shall use reasonable efforts to remove such causes of nonperformance.

9.5 Notices. Notices shall be sent either by (i) registered priority US mail or by priority delivery by a nationally recognized carrier with confirmation of delivery (in each case such notice deemed received upon delivery) or (ii) email (such notice deemed received 48 hours from being sent). Notices shall be submitted in writing to the address or email set forth in the Order or for on-line only accounts at the email address for the account. All notices sent to Provider by mail or carrier must be also be copied to Provider's email address.

9.6 General. The terms and conditions of this Agreement supersede all previous agreements, proposals or representations related to the subject matter hereof. The terms of any confidentiality agreement entered into by the parties prior to the Effective Date hereof shall remain in effect with respect to any disclosures outside the scope of this Agreement, provided that this Agreement shall exclusively govern any disclosures in connection with this Agreement. Purchase Orders may be used to confirm authority to purchase; provided, however, the terms thereof shall not modify or add to the terms of this Agreement. The terms of this Agreement takes priority over any conflicting terms in an Order, unless the Order expressly amends this Agreement. The exchange of a signature by electronic means shall be sufficient to bind the parties to this Agreement or to any Order.

10. DEFINED TERMS

"Affiliate" means any entity controlled by, controlling, or under common control with a party to this Agreement during the period such control exists. For the purposes hereof "control" means the power to direct the operation, policies and management of an entity through the ownership of more than fifty percent (50%) of the voting securities of such entity, by contract, or otherwise. "Applicable Law" means any applicable statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree of any government or political subdivision thereof or regulatory authority, or any arbitrator, court or tribunal of competent jurisdiction including any applicable Data Protection Laws. "Confidential Information" has the meaning set forth in Section 4.1 of the Agreement. "Customer Data" means all data, information and media (regardless of form whether voice, digital, written or otherwise) including without limitation any Personal Data, that is (i) provided, submitted or made available by or on behalf of Customer (including the Licensed Practices) or their Representatives or the Services Users, in each case as made available to Provider or otherwise input ("Inputs") into the SaaS Software by or on behalf of Customer (including the Licensed Practices) or their respective Representatives and the Services Users (ii) any findings, summaries, analysis, reports or other output ("Output") to the extent derived from the Customer Data, but excluding the Derived Data. "Data Protection Laws" means any data privacy or data protection laws under any Applicable Law applicable to a party's performance under this Agreement, including without California Consumer Privacy Act (the "CCPA"), including the California Privacy Rights Act ("CPRA"); and any corresponding or similar United States state or federal laws or regulations relating to the use or protection of data including any amendment, update, modification to, or re-enactment of such laws ("US Data Protection Laws"). Terms used in this Agreement that are defined in the Data Protection Laws shall have the meaning assigned to them in the applicable Data Protection Laws. "Derived Data" has the meaning set forth in Section 3.2 hereof. "Documentation" means technical, user documentation, specifications and training materials provided by Provider in connection with the Solution describing its use and functionality. "Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world. "Licensed Territory" means the U.S. "Order" means an order form and/or statement of work referencing this Agreement, which has been mutually agreed to by the parties either (i) in a mutually signed writing, or (ii) via electronic acceptance on the SaaS Platform. "Personal Data" means information that identifies or could be used to identify an individual and expressly includes 'Personal Information' or 'Personal Data' as such terms are defined in any Data Protection Laws. "Professional Services" means professional services provided by Provider as described in an Order which may include implementation services or other consulting services. "Provider Property" means any technical information, solution content, techniques, ideas, methods, processes, software, interfaces, utilities, data, data templates or files, dashboard, question formats and pairings, databases or libraries, documents, directories, designs, know-how, intellectual property, information or materials of any kind (regardless of form) which has been or is acquired, created, developed or licensed by Provider prior to or outside the scope of this Agreement; and with respect to all of the foregoing any improvement, modification or other derivative works thereof and all protectable Intellectual Property Rights therein; and expressly includes, without limitation, the Solutions, Documentation and Usage Data. "Representatives" means the employees, contractors, consultants, subcontractors and/or advisors of a party and its Affiliates as applicable. "SaaS Software" means the proprietary Provider SaaS software as described in an Order, made available through the SaaS Platform; and the software tools, dashboards and analytics embodied therein; and related services and tasks to the extent performed thereby; and any Updates. "SaaS Platform" means the computer platform owned or controlled by Provider which is used by Provider to host the SaaS Software. "Services Users" means prospective or existing patients of Customer (including the Licensed Practice) who are authorized by Customer to use the SaaS Software for its intended purpose to interact and communicate with Customer in connection with Customer's business and services. "Solution(s)" means the SaaS Software and the Professional Services. "Third-Party Services" has the meaning set forth in Section 5.3. "Updates" means any updates, releases, bug fixes, error corrections or new versions to the SaaS Software made generally available by Provider from time to time in its sole discretion as part of such SaaS Software. Updates do not include new solutions, functionality or modules sold separately as new solutions. "Usage Data" means data generated from Customer's use of the SaaS Software used to collect and create analytics, data, statistics, meta data and information about the user experience and use of the SaaS Platform such as activity tracking, security logs, device interactions and qualitative metric. "User" means (i) an employee or independent contractor of Customer (including the Licensed Practice) who is authorized to use the SaaS Software on behalf of Customer (including the Licensed Practices) in connection with its authorized use of the SaaS Software ("Internal User") and (ii) any Services Users.