Master Services Agreement

MASTER SERVICES AGREEMENT

This Master Services Agreement between Ikigai Labs, Inc. (“Ikigai Labs”), with a business address at 1390 Market Street, #200, San Francisco, CA 94102, and Customer as named on the Order Form or Statement of Work.

WHEREAS, Ikigai Labs provides Cloud Services and Professional Services to customers; and

WHEREAS, Customer wishes to purchase from Ikigai Labs certain Cloud Services and Professional Services set forth herein pursuant to the terms of the Agreement.

NOW, THEREFORE, in consideration of the foregoing premises and for other good and valuable

consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. DEFINITIONS

1. “Cloud Services” means all Ikigai Labs software programs provided to Customer pursuant to this Agreement and delivered via the software as a service software model and associated documentation, including all improvements, enhancements, modifications, or derivatives made thereto.

2. “Customer Data” means the electronic data or information (including any personal data) submitted, provided, uploaded, transmitted, imported, displayed, or otherwise made available by Customer through the Services.

3. “Deliverable” means any deliverable prepared by Ikigai Labs for Customer as specifically described in an applicable SOW, which shall be considered Ikigai Labs Property (defined below).

4. “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.

5. “Order Form” means any order form that references this Agreement and that is signed by both Parties during the Term of this Agreement.  

6. “Professional Services” means the professional services to be provided by Ikigai Labs to Customer as described in an applicable SOW, which may include, without limitation, integration, implementation, consulting, business planning, network planning, and analysis.

7. “Services” means all products and services delivered pursuant to this Agreement, including, without limitation, Cloud Services, Professional Services, and Support Services.

8. “Statement of Work” or “SOW” means any statement of work that sets out the terms for the provision of Professional Services by Ikigai Labs that references this Agreement and that is signed by both Parties during the Term of this Agreement.

9. “Support Services” shall mean the maintenance and support services that Ikigai Labs shall provide under this Agreement for Cloud Services as set forth in Exhibit B, attached hereto.

10. “User” means any individual who, pursuant to the terms of an Order Form and/or Statement of Work, is authorized to use the Services subject to such individual’s acceptance of this Agreement. Customer will ensure that Users take reasonable security measure to prevent the Services from being seen or accessed by unauthorized individuals.

2. CLOUD SERVICES

1. General. All Cloud Services to be delivered by Ikigai Labs shall be described in an Order Form. Each Order Form will incorporate the terms and conditions of this Agreement. In the event of a conflict between the Order Form and this Agreement, the Order Form shall prevail.

2. Ikigai Labs Obligations. Ikigai Labs shall deliver the Cloud Services in accordance with the terms of this Agreement and the applicable Order Form. Ikigai Labs shall perform any Support Services for the Cloud Services in a reasonable, professional and workmanlike manner in keeping with industry standards and practices. Ikigai Labs will furnish the Support Services in accordance with Exhibit B.

1. Customer Obligations. Customer shall: (i) use the Cloud Services solely for its internal business purposes, except as permitted by this Agreement and the applicable Order Form; (ii) comply, and cause it’s User’s to comply, with this Agreement; (iii) prior to providing Customer Data to Ikigai Labs, provide to, and obtain and maintain from, third-parties all notices and consents required for Ikigai Labs to process Customer Data under applicable law; and (iv) comply with all local, state, federal and foreign laws applicable to the use of the Cloud Services.

2. Restrictions. Customer and its Users will not use, download, install, or access the Cloud Services except as expressly authorized by this Agreement.  Without limiting the generality of the foregoing, Customer and its Users will not: (i) sell, resell, distribute, bundle or make the Cloud Services available in any form to any third party; (ii) copy, modify, merge, disclose, reverse engineer, decompile, disassemble, translate, or otherwise attempt to derive the design, source code or underlying algorithms, file formats or programming or interoperability interfaces of the Cloud Services unless applicable law prohibits such reverse engineering restrictions; (iii) create any derivative work based upon, the Cloud Services; (iv) sublicense or otherwise transfer or dispose of, or assign, share, rent, lease, grant a security interest in, or otherwise transfer the Cloud Services or the right to use the Cloud Services; or (v) use the Cloud Services for any commercial purposes.  

3. Updates. Ikigai Labs may make commercially reasonable changes and or updates to the Cloud Services, on condition that such changes do not materially decrease the features or functionality of the Cloud Services.  

4. Third-Party Services. In the event Ikigai Labs makes Customer Data available to a subcontractor for the subcontractor to provide third-party services that are required for Ikigai Labs to deliver the Cloud Services, Ikigai Labs will bind subcontractor to confidentiality and, where subcontractor is also a sub-processor under Exhibit D, data protection obligations that are substantially similar to, and in any event no less stringent than, Ikigai Labs’ confidentiality and data protection obligations under this Agreement.  

5. Data Privacy. Each Party shall comply with the data privacy terms set out in this Agreement, including those set forth in the Data Processing Addendum, attached hereto as Exhibit D.

1. PROFESSIONAL SERVICES

1. General. All Professional Services to be performed and Deliverables to be developed by Ikigai Labs shall be described in an SOW. Each SOW will incorporate the terms and conditions of this Agreement. In the event of a conflict between the SOW and this Agreement, the Agreement shall prevail.  

2. Ikigai Labs’ Obligations. Ikigai Labs shall perform Professional Services in a reasonable, professional and workmanlike manner in keeping with industry standards and practices.  

3. Customer Obligations. In addition to any specific responsibilities set out in the applicable SOW, Customer shall: (i) provide the appropriate and necessary resources, and timely and accurate information and documentation, as reasonably required by Ikigai Labs, to allow Ikigai Labs to perform the Professional Services and develop the Deliverables; (ii) carry out reviews and respond to requests for approval and information on a timely basis; and (iii) make available to Ikigai Labs equipment, material, information, data, network access and/or facilities that Ikigai Labs may reasonably require to carry out its obligations under the SOW. Customer shall designate a project manager for the purposes of communication with Ikigai Labs. The project manager shall be the primary point of contact for Customer with Ikigai Labs for matters relating to the provision of Professional Services and development of Deliverables.  

1. Travel. Ikigai Labs shall be entitled to reimbursement of pre-approved, out-of-pocket expenses directly related to performing the Professional Services. Each invoice shall include copies of receipts for all out-of-pocket expenses that are submitted for reimbursement.

2. PAYMENT

1. Fees. Customer shall pay all fees specified in the applicable Order Form and/or SOW in the currency identified therein (“Fees”). All Fees shall be invoiced and paid in USD.

2. Payment and Invoicing. Unless stated otherwise in the applicable Order Form and/or SOW, Ikigai Labs will submit an invoice for Fees at which time payment shall be due thirty (30) days after the invoice is delivered.  

3. Disputed Payments. Customer may dispute part or the entirety of an invoice by: (i) providing written notice to Ikigai Labs of such dispute within ten (10) days of invoice receipt; (ii) providing a reasonably detailed description of the dispute, at least sufficient to allow Ikigai Labs to analyze the dispute, as part of the written notice; (iii) only submitting such dispute in good faith; (iv) paying all undisputed amounts when due; and (v) paying all disputed amounts promptly after resolution of such dispute. The Parties will attempt in good faith to resolve any payment dispute arising out of this Agreement through negotiations between senior management or higher personnel of each of the Parties with authority to settle the relevant dispute for a period not to exceed ten (10) business days. Thereafter, either Party may seek any available remedy under this Agreement.

4. Taxes. All Fees are exclusive of any sales or use taxes, value added tax, goods or services tax, or any and all similar taxes or legally imposed fees, duties or contributions based on such amounts payable, all of which shall be the responsibility of Customer whether due now or subsequently imposed by any jurisdiction. Customer is not responsible for any taxes based upon the net income of Ikigai Labs or its employees. If Customer is exempt from the payment of any such taxes, upon execution of the Agreement, Customer shall provide Ikigai Labs with a valid tax exemption certificate authorized by the appropriate taxing authority.

3. CONFIDENTIALITY

1. Definition of Confidential Information. As used in this Agreement, “Confidential Information” means all confidential or proprietary information belonging to either Party (the “Disclosing Party) and disclosed, made available to or learned by the other Party (the “Receiving Party”) during the Term of this Agreement, including, without limitation, technical, business, financial, marketing or other information of every kind or nature (including, without limitation, trade secrets, know-how and information relating to the technology, Cloud Services, designs, specifications and prototypes, Customer’s business plans, promotional and marketing activities, finances and other business affairs of such Party), third-party confidential information, and the terms and conditions of this Agreement (including pricing), and any information with respect to Customer, including, without limitation, Customer Data.  

2. Exclusions. Confidential Information does not include any information that: (i) is or becomes generally available to the public through no improper action or inaction by the Receiving Party or any Affiliate, agent, consultant or employee of the Receiving Party; (ii) was properly in the Receiving Party’s possession or properly known by it, without restriction, prior to receipt from the Disclosing Party; (iii) was rightfully disclosed to the Receiving Party by a third-party without restriction; or (iv) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.

3. Confidentiality Obligations. Subject to the terms of this Agreement, each Party shall: (i) hold in strict confidence all Confidential Information of the other Party; (ii) use the Confidential Information solely to perform its obligations or exercise its rights under this Agreement and (iii) not transfer, display, convey or otherwise disclose or make available all or any part of such Confidential Information to any person or entity other than to its directors, officers, employees, consultants, subcontractors, auditors, and legal and financial advisors of such Party (collectively, “Representatives”) who need to know such Confidential Information and who are under confidentiality obligations at least as restrictive as the terms of this Agreement. Each Party is responsible for any breaches of this Agreement by its Representatives. Except as otherwise expressly provided in this Agreement, neither Party shall use or disclose the Confidential Information of the other Party without the prior written consent of the Disclosing Party. Each Party shall use the same degree of care to protect the Disclosing Party’s Confidential Information as it uses to protect its own Confidential Information, but in no circumstances less than reasonable care. The Parties agree that the Confidential Information of the other Party is, and will remain, the property of such other Party. The Receiving Party obtains no right, title, interest, or license in or to any of the Confidential Information of the Disclosing Party except for the rights expressly set forth in this Agreement.

4. Permitted Disclosures. The Receiving Party may disclose the Confidential Information of the Disclosing Party in response to a valid court order, subpoena, civil investigative demand, law, rule, regulation (including, without limitation, any securities exchange regulation), or other governmental action, provided that: (i) to the extent permitted by applicable law or regulation, the Disclosing Party is notified in writing prior to disclosure of the information; (ii) the Receiving Party uses reasonable efforts to obtain a protective order or, in the absence of a protective order, to limit the disclosure of the Disclosing Party’s Confidential Information and to obtain confidential treatment thereof; and (iii) the Receiving Party has allowed the Disclosing Party to participate in the proceeding that requires the disclosure.

5. Remedies. Each Party agrees that the other Party may have no adequate remedy at law if there is a breach or threatened breach of this Section 5 and, accordingly, that either Party is entitled (in addition to any legal or equitable remedies available to such Party) to seek injunctive or other equitable relief without the necessity of proof of actual damages to prevent or remedy such breach.

4. PROPRIETARY RIGHTS

1. License Rights. During the term set forth in the applicable Order Form, Ikigai Labs grants Customer a non-exclusive, non-transferable (except in compliance with an appropriate assignment hereunder), non-sublicensable, royalty-free, worldwide license to access and use the Cloud Services and any applicable documentation solely for the purposes set forth in this Agreement.

2. Ikigai Labs Property. Company acknowledges and agree that Ikigai Labs is the exclusive owner of all right, title, and interest in and to the Cloud Services (including, without limitation, any Deliverables, software or documentation associated with the Cloud Services and all updates, corrections, modifications, and new versions thereof) and all Intellectual Property Rights related thereto or inherent therein (collectively, “Ikigai Labs Property”).  Customer will treat Ikigai Labs Property as proprietary and Confidential Information of Ikigai Labs subject to the terms and conditions of this Agreement.  Customer does not acquire title to the Ikigai Labs Property or any Intellectual Property Rights or other rights related thereto, whether by implication, estoppel or otherwise, except for the limited evaluation license granted hereunder. Customer may provide to Ikigai Labs suggested improvements or modifications of the Cloud Services, and all related know-how, created under this Agreement regarding improvement or modification of the Cloud Services, during the course of or as a result of this Agreement (collectively, “Feedback”).  Ikigai Labs owns all right, title, and interest in and to the Feedback, all improvements or modifications of the Cloud Services by whomsoever made, and all intellectual property rights inherent therein or related to the foregoing.  Customer hereby assigns to Ikigai Labs all right, title and interest in and to the Feedback.  Customer will perform all acts reasonably required to perfect and enforce such rights.  All such Feedback shall be deemed Ikigai Labs Property and will be subject to the restrictions set forth herein.

3. Customer Data. Customer is and will remain the exclusive owner of all right, title and interest in and to Customer Data, including, without limitation, any Intellectual Property Rights relating thereto. Customer hereby grants to Ikigai Labs during the term set forth in an applicable Order Form, a non-exclusive, worldwide, royalty-free license to use Customer’s Data solely for the purposes of providing and improving the Cloud Services. Ikigai Labs shall not acquire any other rights in Customer Data except for those rights expressly specified in this Agreement.  

4. Deliverables. Ikigai Labs hereby grants to Customer a non-exclusive, non-transferable (except in connection with a permitted assignment) right and license to use the Deliverables in conjunction with the Cloud Services during the term of an applicable Order Form, subject to the same terms and conditions applicable to Customer’s authorized use of the Cloud Services. Ikigai Labs retains all right, title and interest in and to Ikigai Labs’ templates, methodologies, tools, know-how, and any modifications to the Ikigai Labs Property, including the Deliverables, used to deliver the Professional Services. For greater certainty, Customer understands and agrees the Deliverables may be included in or necessary for Customer to use the Cloud Services, but are excluded from Customer’s ownership rights under this Agreement. Materials that are not owned or created by Ikigai Labs, including by not limited to publicly available data, open source software, or other third party licenses  (collectively, “Third Party Materials”) may be included in, or necessary for Customer to use the Deliverables as a part of the Cloud Services, and are excluded from Customer’s ownership rights under this Agreement. Unless otherwise agreed to in an SOW, Ikigai Labs shall be responsible for obtaining the necessary licenses or other rights relating to Third Party Materials.

5. TERM AND TERMINATION

1. Term of Master Services Agreement. Subject to earlier termination in accordance with this Agreement, the term of this Agreement shall commence on the Effective Date and continue as long as there is an Order Form or SOW in effect (“Term”).

2. Term of Order Form or SOW. The term of the Services under an Order Form or SOW shall be set out in the applicable Order Form or SOW (the “Initial Term”) and will remain in effect until it expires or is terminated in accordance with this Agreement or the Order Form or SOW. In event this Agreement is terminated, all of the Order Forms and SOWs then in effect shall also terminate. Upon expiration of the Initial Term, unless otherwise set forth in the Order Form, the Cloud Services shall automatically renew for a successive one (1) year periods (each a “Renewal Term”) unless either Party gives notice of non-renewal at least thirty (30) days before the expiration of the Initial Term or then-current Renewal Term. Ikigai Labs reserves the right to increase the Cloud Services Fees for each Renewal Term.

3. Termination for Cause. Either Party may terminate this Agreement or any or all Order Forms or SOWs if the other Party: (i) commits a material breach or default under this Agreement or any Order Forms or SOWs, which breach is not remedied within thirty (30) days after receipt of written notice thereof by the Party in breach or default and is not capable of being remedied within such thirty (30) day period; or (ii) (a) makes an assignment for the benefit of creditors, (b) permits the appointment of a trustee or receiver of all or substantial part of its assets, or (c) institutes voluntary proceedings in bankruptcy or insolvency, permits involuntary institution of such proceeding against it, or commits any other act of bankruptcy.

4. Consequences of Termination. Upon termination this Agreement or any Order Form or SOW, (i) Customer shall immediately cease accessing or using the terminated Cloud Services; (ii) Ikigai Labs will cease collecting or processing Customer Data; and (iii) the Parties will cease use of and return or destroy the other Party’s Confidential Information in its (or subcontractors’) possession.  

5. Survival. Sections concerning the Parties’ rights and obligations that by the content of the section operate after termination or that are necessary to enforce any right will survive termination of this Agreement.

6. WARRANTIES

1. Mutual Warranties. Each Party represents, warrants and covenants that (i) it shall perform its obligations hereunder in accordance with applicable law; (ii) it has the right to enter into this Agreement; (iii) there is no action, suit, claim, investigation or proceeding pending, or to the best of its knowledge, threatened against, by or affecting said Party, which, if adversely decided, might adversely affect its ability to enter into this Agreement and/or its performance of its obligations under this Agreement; and (iv) it is not a party to any agreement that would limit, restrict or adversely affect its ability to enter into this Agreement and/or its performance of its obligations under this Agreement.

2. Ikigai Labs Warranty. Ikigai Labs represents, warrants and covenants to Customer that (i) Ikigai Labs has the full legal right to provide all Services provided under this Agreement; (ii) Ikigai Labs’ personnel and subcontractors it assigns to perform the Services shall be competent to perform the Services hereunder; (iii) the Services performed under this Agreement shall be of professional quality, consistent with generally accepted industry standards for the performance of the Services of a similar nature; (iv) the Deliverables will materially comply in all respects with their specifications, including documentation, and be free from any material defects or errors; and (v) the Ikigai Labs will ensure that the Cloud Services do not contain any code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs, or Trojan horses.  

3. Sole Remedy. IF CUSTOMER NOTIFIES IKIGAI LABS OF ANY BREACH OF THE FOREGOING WARRANTIES IN SECTION 8(B), CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR SAID BREACH SHALL BE FOR IKIGAI LABS TO RE-PERFORM, REPLACE, OR RECREATE SUCH SERVICES AT NO ADDITIONAL COST TO CUSTOMER SO THEY CONFORM TO THE APPLICABLE FOREGOING WARRANTIES.  

4. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT: (I) IKIGAI LABS MAKE NO OTHER REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES OR ANY INFORMATION OR DELIVERABLES PROVIDED HEREUNDER AND EXPLICITLY DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A SPECIFIC PURPOSE, OR NONINFRINGEMENT; AND (II) IKIGAI LABS DOES NOT WARRANT THAT THE OPERATION OF THE CLOUD SERVICES WILL BE UNINTERRUPTED, FAULT-TOLERANT, OR ERROR-FREE, THAT ANY CLOUD SERVICES ERRORS WILL BE CORRECTED, THAT THE CLOUD SERVICES WILL EVER BE COMPLETED OR COMMERCIALLY AVAILABLE, THAT THE CLOUD SERVICES WILL SATISFY CUSTOMER REQUIREMENTS OR THAT THE CLOUD SERVICES WILL OPERATE IN COMBINATION WITH OTHER SOFTWARE OR HARDWARE OR WITH CUSTOMER INFORMATION TECHNOLOGY ENVIRONMENT.  IKIGAI LABS MAY CHANGE THE CLOUD SERVICES AND THE TECHNICAL SPECIFICATIONS, AND ANY OTHER INFORMATION AND MATERIALS AVAILABLE IN CONNECTION WITH CUSTOMER’S USE OF THE CLOUD SERVICES AT ANY TIME AND WITHOUT NOTICE. IKIGAI LABS IS NOT RESPONSIBLE FOR ANY MISUSE OF THE CLOUD SERVICES BY CUSTOMER OR USERS, INCLUDING WITHOUT LIMITATION ANY WILLFUL OR MALICIOUS ACTS BY CUSTOMER OR A USER, OR ANY OTHER ACT OR OMISSION BY CUSTOMER OR A USER IN VIOLATION OF THE TERMS OF THIS AGREEMENT OR USE OF THE CLOUD SERVICES OTHER THAN AS PROVIDED IN THIS AGREEMENT.

7. INDEMNIFICATION

1. Indemnification by Ikigai Labs. Ikigai Labs agrees to protect, defend, hold harmless and indemnify Customer, its affiliates, and each of their respective directors, officers, employees, successors and permitted assigns from and against any and all liabilities, damages, losses, fines, penalties, costs and expenses (including reasonable attorneys’ fees) arising or resulting from any third party claim, demand, action or legal proceeding (each a “Claim”) that: (i) the Cloud Services provided by Ikigai Labs under this Agreement infringe, misappropriate or violate any Intellectual Property Right of such third party; (ii) Ikigai Labs’ performance under this Agreement violates applicable law; or (iii) Ikigai Labs has committed gross negligence, willful misconduct or fraud in the performance of its obligations under this Agreement. The foregoing indemnification obligation under Section 9(a)(i) shall not apply to extent the Claim results from: (a) a combination of the Cloud Services with software or hardware not supplied by or on behalf of Ikigai Labs; (b) modifications or derivative works of the Cloud Services by anyone other than Ikigai Labs; or (c) Customer Data or Customer’s breach of this Agreement.

2. Third Party Infringement. Should the Cloud Services become subject to a third party infringement claim, Ikigai Labs shall, at Customer’s option and Ikigai Labs’ sole expense, either: (i) procure for Customer the right to continue to use the Cloud Services; (ii) modify the Cloud Services to eliminate any Claim which might result from its use hereunder, provided that the Cloud Services’ performance must remain at least as functional as provided in any relevant documentation; or (iii) replace the Cloud Services with equally suitable, compatible performance and functionality equivalent non-infringing services. If Ikigai Labs reasonably determines that the above options are impractical, Ikigai Labs shall terminate the infringing Cloud Services and promptly refund to Customer a pro-rata amount of any pre-paid Fees for any undelivered Cloud Services.

3. Notification. The Customer agrees to give Ikigai Labs prompt written notice of any Claim subject to indemnification; provided, the Customer’s failure to promptly notify Ikigai Labs will not affect Ikigai Labs’ obligations hereunder except to the extent that such delay prejudices Ikigai Labs’ ability to defend such Claim. Ikigai Labs will have the right to defend against any such Claim with counsel of its own choosing and to settle such Claim as it deems appropriate, provided, Ikigai Labs will not enter into any settlement that adversely affects the Customer’s rights without the Customer’s prior written consent, not to be unreasonably withheld. The Customer agrees to reasonably cooperate with Ikigai Labs in the defense and settlement of any such Claim, at Ikigai Labs’ expense.  

4. Sole Remedy. THE FOREGOING PROVISIONS OF THIS SECTION 9 SET FORTH IKIGAI LABS’ SOLE AND EXCLUSIVE OBLIGATIONS AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO THE APPLICABLE INDEMNIFIABLE CLAIMS UNDER THIS SECTION 9.

8. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, (I) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING UNDER THIS AGREEMENT; AND (II) EACH PARTY’S AGGREGATE LIABILITY TO THE OTHER PARTY FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE TO IKIGAI LABS UNDER THE RELEVANT ORDER FORM OR SOW IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.  

9. GENERAL PROVISIONS

1. Relationship of Parties. The Parties are independent contractors. This Agreement does not create nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.

2. Notices. All notices must be in writing and in English and may be sent by email, except for notice of breach or demands for indemnification, which must be sent by either certified mail or internationally recognized courier to the address indicated at the beginning of this Agreement, or such other address as either Party may indicate by at least ten (10) days prior written notice to the other Party.

3. Waiver. No waiver of any right under this Agreement will be deemed effective unless contained in a writing signed by a duly authorized representative of the Party to be bound, and no waiver of any past or present right arising from any breach or failure to perform will be deemed a waiver of any future right arising under this Agreement.

4. Force Majeure. Neither Party will be liable for delay in the performance of its obligations under this Agreement, to the extent it is prevented from doing so due to acts of God, acts of terrorism, pandemic or epidemic, fires, wars, floods, storms, earthquakes, riots, or similar event; provided that such nonperformance could not have been prevented by commercially precautions (each a “Force Majeure Event”). The Party affected by a Force Majeure Event shall diligently attempt to remove such cause or causes and shall promptly notify the other Party of the existence of such Force Majeure Event and its probable duration. If and to the extent a Party is delayed in completing its obligations hereunder by a Force Majeure Event, then the time period for performance shall be extended for the period of time equal to the period of time during which such Party was delayed due to the Force Majeure Event without any additional costs or obligations to the unaffected Party.

5. Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, either Party may assign this Agreement in its entirety (including all Order Forms or SOWs) without consent of the other Party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets so long as the assignee agrees to be bound by all of the terms of this Agreement and all past dues are paid in full. Any attempt by a Party to assign its rights or obligations under this Agreement other than as permitted by this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.

6. Governing Law. This Agreement shall be governed exclusively by the internal laws of the State of California, without regard to its conflict of laws rules.  

7. Export. Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services.

8. Publicity. Except as set forth herein, neither Party shall use the other Party’s name, logos or trademarks, without the prior written consent of the other Party, in any written press releases, advertisements and/or marketing materials.  

9. Additional Terms. Nothing contained in any invoice, click wrap agreement, or other document or instrument issued by either Party will in any way modify or add any additional terms or conditions to this Agreement, and any such modified or additional terms or conditions are expressly rejected and excluded from the Parties’ agreement hereunder.

10. Entire Agreement. This Agreement, including any appendices, schedules, exhibits, Order Forms, Statements of Work, or addendums, sets forth the entire understanding and agreement between the Parties with respect to the subject matter hereof. This Agreement may not be modified or amended except pursuant to an instrument in writing executed and delivered on behalf of the Parties hereto.

11. Counterparts and Execution. This Agreement may be executed in counterparts, which taken together shall form one binding legal instrument. The Parties hereby consent to the use of electronic signatures in connection with the execution of this Agreement, and further agree that electronic signatures to this Agreement shall be legally binding with the same force and effect as manually executed signatures, provided that such signatures must be made using a technology designed for electronic signatures and a mere email which appears to state consent to an agreement or action shall not be considered an electronic signature.

12. Equitable Relief. Notwithstanding anything to the contrary contained in this Agreement, any Party may immediately seek equitable relief (without the necessity of posting bond), including, without limitation, temporary injunctive relief, against the other Party in any court of competent jurisdiction with respect to any and all equitable remedies sought in connection with this Agreement.  

13. Interpretation. In the event of a dispute between the Parties, this Agreement will not be construed for or against either Party but will be interpreted in a manner consistent with the intent of the Parties as evidenced by the terms of this Agreement. Unless otherwise specified, “days” means calendar days.

14. Severability. If any provision in this Agreement is invalid or unenforceable, that provision will be construed, limited, or modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, and the other provisions of this Agreement will remain in full force and effect.

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