CLAVATA TERMS OF SERVICE

PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE USING THE SERVICE OFFERED BY CLAVATA, INC. (“CLAVATA”) BY MUTUALLY EXECUTING ONE OR MORE SERVICE ORDERS WITH CLAVATA THAT REFERENCE THESE TERMS (EACH, A “SERVICE ORDER”) OR BY ACCESSING OR USING THE SERVICES IN ANY MANNER, YOU (“YOU” OR “CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR ENTITY, REFERENCES TO “CUSTOMER” AND “YOU” IN THIS AGREEMENT REFER TO THAT ORGANIZATION OR ENTITY. IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.  IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.

1. SCOPE OF SERVICE AND RESTRICTIONS

1.1 Access to and Scope of Service. Subject to Customer’s compliance with the terms and conditions of the Agreement and the applicable Service Order, Customer may access and use the Clavata service specified in the applicable Service Order (the “Service”), Clavata will use commercially reasonable efforts to make the Service available to the Customer in accordance with this Agreement and the applicable Service Order.  Each Service Order will specify the applicable Fees, period of use, use limitation and associated conditions with respect to the applicable Service (the “Service Description”).  

1.2 Restrictions. Customer will use the Service only in accordance with all applicable laws, including, but not limited to, rules and regulations related to data and personally identifiable information. Customer agrees not to, and will not allow any third party to: (i) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discover the underlying structure, ideas, or algorithms of the Service or any software used to provide or make the Service available; or (iii) rent, resell or otherwise allow any third party access to or use of the Service.

1.3  Software. To the extent Clavata makes any Clavata proprietary software available to Customer in connection with the Service, Clavata hereby grants to Customer, and Customer hereby accepts from Clavata, a limited, non-exclusive, non-transferable, non-assignable and non-sublicensable license to run such software solely as necessary to use the Service. Customer agrees that it shall not: (a) exceed the scope of the licenses granted in Section 1.3; (b) distribute, sublicense, assign, delegate, rent, lease, sell, time-share or otherwise transfer the benefits of, use under, or rights to, the license granted in Section 1.3; (d) reverse engineer, decompile, disassemble or otherwise attempt to learn the source code, structure or algorithms underlying the software, except to the extent required to be permitted under applicable law; (e) modify, translate or create derivative works of the software; (f) remove any copyright, trademark, patent or other proprietary notice that appears on the software or copies thereof; or (g) combine or distribute any of the software with any third party software that is licensed under terms that seek to require that any of the software (or any associated intellectual property rights) be provided in source code form (e.g., as “open source”), licensed to others to allow the creation or distribution of derivative works, or distributed without charge.

1.4  Ownership. Clavata retains all right, title, and interest in and to the Service, and any software, products, works or other intellectual property created, used, provided, or made available by Clavata under or in connection with the Service. Customer may from time to time provide suggestions, comments, or other feedback to Clavata with respect to the Service (“Feedback”). Customer shall, and hereby does, grant to Clavata a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use the Feedback for any purpose. 

1.5 Service Suspension.  Clavata may suspend Customer’s access to or use of the Service immediately if any of the following occurs: (a) Customer’s use of the Service exceeds the Service Description; or (b) Customer fails to pay to Clavata all Fees with respect to the Service; or (c) Clavata reasonably believes Customer’s use of the Service may pose a security risk to or may adversely impact the Service.

2.  DATA AND OUTPUT

2.1 Customer Data. Customer has sole and exclusive control regarding what Customer Data is submitted into the Service, and Customer is solely responsible for Customer Data including, but not limited to: (a) Customer Data’s compliance with all applicable laws and this Agreement; (b) obtaining all necessary rights, consents and permissions with respect to Customer Data; (c) any processing instructions regarding Customer Data; (d) any claims relating to Customer Data; and (e) any claims that Customer Data infringes on, misappropriates, or otherwise violates the rights of any third party.   Customer acknowledges and agrees that Customer Data may be irretrievably deleted if Customer’s account is terminated.

2.2 Use of Customer Data.  Customer hereby grants to Clavata a non-exclusive, worldwide, royalty-free right and license to make use of Customer Data in connection with the Service, and Clavata is authorized to use Customer Data and Usage Data to make improvements and enhancements to the Service, including methods, techniques, and models (“Improvements”).  Customer may opt out of use of Customer Data in connection with Improvements by sending a request to legal@clavata.ai, provided that certain features with respect to the Service may no longer be available to Customer.  “Customer Data” shall mean data, information or other material provided, uploaded, or submitted by Customer to the Service in the course of using the Service.  “Usage Data” shall mean diagnostic, performance, telemetry, and related data collected or obtained in connection with Customer’s use of the Service, provided that such data is in aggregated, anonymized form.

2.3 Personal Data.  Customer agrees that it will not transfer, share, or deliver to Clavata any personally identifiable information subject to applicable data privacy laws or regulations, in the absence of an executed Data Processing Agreement agreed to by the parties.

2.4 Output.  Customer may use the Service to generate certain signals and related data based on Customer Data, and policies provided and defined by Customer (such signals and related data, the “Output”).  Customer may use the Output, provided such use is solely in connection with the Service, and consistent with the Service Description. Customer acknowledges and agrees that Output (a) is generated using artificial intelligence; (b) may be inaccurate, incomplete, subject to bias, and similar to data used by third parties; and (b) should be reviewed by Customer for accuracy, and to evaluate the Output’s suitability for its intended use.

3. SUPPORT AND UPTIME SLA

Subject to Customer’s payment of the corresponding fees, Clavata will use commercially reasonable efforts to: (a) provide Customer Support with respect to the Service, and/or (b) make the Service available according to the Uptime SLA.  “Customer Support” and the “Uptime SLA” shall mean the support services and uptime service levels specified in Exhibit A.   

4. FEES AND TAXES

4.1 Fees.  Customer shall pay to Clavata the fees as set forth in each applicable Service Description (the “Fees”) and will provide accurate and updated billing contact information.

4.2 Invoicing Terms.  Clavata will invoice Customer according to the billing frequency stated in the Service Order.  Fees are due pursuant to the corresponding Service Order. If any Fees are not received by Clavata by the due date, then, without limiting Clavata’s rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. 

4.3   Taxes.  Any and all payments made by Customer in accordance with this Agreement are exclusive of any taxes that might be assessed by any jurisdiction.  Customer shall pay or reimburse Clavata for all value-added, sales, use, property, and similar taxes; all customs duties, import fees, stamp duties, license fees and similar charges; and all other mandatory payments to government agencies of whatever kind, except taxes imposed on the net or gross income of Clavata.  All amounts payable to Clavata under this Agreement shall be without set-off and without deduction of any taxes, levies, imposts, charges, withholdings or duties of any nature which may be levied or imposed, including without limitation, value added tax, customs duty and withholding tax.

5. TERM AND TERMINATION

5.1  Term. The term of this Agreement shall commence upon first use of the Service by Customer, (the “Effective Date”) and unless terminated earlier according to this Section 5, will end on the last day any Service Order(s) expires or is terminated   (the “Term”).  This Agreement and Customer’s authorization to use the Service shall immediately terminate without notice from Clavata if Customer’s use of the Service exceeds the Service Description.  Each Service Order will renew automatically at the end of the term specified in the applicable Service Description unless either party provides to the other advance written notice with respect to non-renewal at least thirty (30) days prior to the end of the then current Service Order term.

5.2 Termination. This Agreement may be terminated: (a) by either party if the other has materially breached this Agreement, within thirty (30) calendar days after written notice of such breach to the other party if the breach is remediable or immediately upon notice if the breach is not remediable;(b) by Clavata upon written notice to Customer if Customer (i) has made or attempted to make any assignment for the benefit of its creditors or any compositions with creditors, (ii) has any action or proceedings under any bankruptcy or insolvency laws taken by or against it which have not been dismissed within sixty (60) days, (iii) has effected a compulsory or voluntary liquidation or dissolution, or (iv) has undergone the occurrence of any event analogous to any of the foregoing under the law of any jurisdiction;

5.3 Effect of Termination. Upon any expiration or termination of this Agreement, (a) Customer shall immediately cease use of the Service, and return all Clavata Confidential Information and other materials and information provided by Clavata, and (b) the license granted in Section 1.2 shall immediately terminate, and Customer shall return to Clavata any software licensed thereunder. Any termination or expiration shall not relieve Customer of its obligation to pay all Fees, if any, accruing prior to termination. 

5.4 Survival. The following provisions will survive termination of this Agreement: Sections 1.2, 1.3 (a-g), 1.4, 1.5,  2.2, 4, 5, 6, 7, 8.3, 9, and 10.

6. CONFIDENTIALITY

During the term of this Agreement, either party may provide the other party with confidential and/or proprietary materials and information (“Confidential Information”). All materials and information provided by the disclosing party and identified at the time of disclosure as “Confidential” or bearing a similar legend, and all other information that the receiving party reasonably should have known was the Confidential Information of the disclosing party, shall be considered Confidential Information. This Agreement is Confidential Information, and all pricing terms are Clavata Confidential Information. The receiving party shall maintain the confidentiality of the Confidential Information and will not disclose such information to any third party without the prior written consent of the disclosing party. The receiving party will only use the Confidential Information internally for the purposes contemplated hereunder. The obligations in this Section shall not apply to any information that: (a) is made generally available to the public without breach of this Agreement, (b) is developed by the receiving party independently from and without reference to the Confidential Information, (c) is disclosed to the receiving party by a third party without restriction, or (d) was in the receiving party’s lawful possession prior to the disclosure and was not obtained by the receiving party either directly or indirectly from the disclosing party. The receiving party may disclose Confidential Information as required by law or court order; provided that, the receiving party provides the disclosing with prompt written notice thereof and uses the receiving party’s best efforts to limit disclosure. At any time, upon the disclosing party’s written request, the receiving party shall return to the disclosing party all disclosing party’s Confidential Information in its possession, including, without limitation, all copies and extracts thereof.

7. INDEMNIFICATION

7.1 Indemnification by Customer.  Customer will defend, indemnify, and hold Clavata, its affiliates, suppliers and licensors harmless and each of their respective officers, directors, employees and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim with respect to: (a) any Output or Customer’s use of the same; (b) Customer Data; (c) breach of this Agreement or violation of applicable law by Customer; or (d) alleged infringement or misappropriation of third-party’s intellectual property rights resulting from Customer Data.

7.2 Indemnification by Clavata.  Clavata will defend, indemnify, and hold Customer harmless from and against any third-party claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising from claims by a third party that Customer’s use of the Service directly infringes or misappropriates a third party’s intellectual property rights (an “Infringement Claim”). Notwithstanding anything to the contrary, Clavata shall have no obligation to indemnify or reimburse Customer with respect to any Infringement Claim to the extent arising from: (a) the combination of any Customer Data with the Service; (b) the combination of any products or services, other than those provided by Clavata to Customer under this Agreement, with the Service; or (c) non-discretionary designs or specifications provided to Clavata by Customer that caused such Infringement Claim.  Customer agrees to reimburse Clavata for any and all damages, losses, costs and expenses incurred as a result of any of the foregoing actions.

7.3 Notice of Claim and Indemnity Procedure.  In the event of a claim for which a party seeks indemnity or reimbursement under this Section 7 (each an “Indemnified Party”) and as conditions of the indemnity, the Indemnified Party shall: (a) notify the indemnifying party in writing as soon as practicable, but in no event later than thirty (30) days after receipt of such claim, together with such further information as is necessary for the indemnifying party to evaluate such claim; and (b) the Indemnified Party allows the indemnifying party to assume full control of the defense of the claim, including retaining counsel of its own choosing.  Upon the assumption by the indemnifying party of the defense of a claim with counsel of its choosing, the indemnifying party will not be liable for the fees and expenses of additional counsel retained by any Indemnified Party.  The Indemnified Party shall cooperate with the indemnifying party in the defense of any such claim.  Notwithstanding the foregoing provisions, the indemnifying party shall have no obligation to indemnify or reimburse for any losses, damages, costs, disbursements, expenses, settlement liability of a claim or other sums paid by any Indemnified Party voluntarily, and without the indemnifying party’s prior written consent, to settle a claim.  Subject to the maximum liability set forth in Section 9, the provisions of this Section 7 constitute the entire understanding of the parties regarding each party’s respective liability under this Section 7, including but not limited to Infringement Claims (including related claims for breach of warranty) and each party’s sole obligation to indemnify and reimburse any Indemnified Party.

8. WARRANTY AND WARRANTY DISCLAIMER

8.1  Warranty.  The Service, when used by Customer in accordance with the provisions of this Agreement and in compliance with the applicable Service Description, will conform in material respects with the documentation identified by Clavata as applicable to the Service (the “Documentation”).  

8.2 Exclusive Remedies.  Customer shall report to Clavata, pursuant to the notice provision of this Agreement, any breach of the warranties set forth in this Section 8.  In the event of a breach of warranty by Clavata under this Agreement, Customer’s sole and exclusive remedy, and Clavata’s entire liability, shall be prompt correction of any material non-conformance in order to minimize any material adverse effect on Customer’s business.

8.3 Disclaimer of Warranty. Clavata does not represent or warrant that the operation of the Service (or any portion thereof) will be uninterrupted or error free, or that the Service (or any portion thereof) will operate in combination with other hardware, software, systems, or data not provided by Clavata. CLAVATA MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICE, OR ITS CONDITION. FURTHER, CLAVATA HEREBY EXPRESSLY EXCLUDES, ANY AND ALL OTHER EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES, WHETHER UNDER COMMON LAW, STATUTE OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY AND ALL WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.  NOTWITHSTANDING ANYTHING TO THE CONTRARY, CUSTOMER ACKNOWLEDGES AND AGREES THAT (A) OUTPUT MAY NOT BE ACCURATE OR COMPLETE; (B) CUSTOMER IS SOLELY RESPONSIBLE FOR AND CLAVATA SHALL HAVE NO LIABILITY REGARDING OUTPUT, CUSTOMER’S USE OF OUTPUT, CUSTOMER’S ACTIONS OR FAILURE TO ACT BASED ON OUTPUT, OR CUSTOMER’S RELIANCE ON OUTPUT; AND (C) CUSTOMER’S USE OF OUTPUT IS AT ITS SOLE RISK.   

9. LIMITATIONS OF LIABILITY

IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY, LOST PROFITS, BUSINESS INTERRUPTION, REPLACEMENT SERVICE OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR INDIRECT DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY.  CLAVATA’S LIABILITY FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER UNDER THE APPLICABLE SERVICE ORDER DURING THE TWELVE (12) MONTH PERIOD PRECEEDING THE DATE OF THE CLAIM.

10. MISCELLANEOUS

10.1 Export Control. Customer hereby certifies that Customer will comply with all current applicable export control laws. Customer agrees to defend, indemnify, and hold Clavata harmless from any liability for Customer’s violation of any applicable export control laws.

10.2 Compliance with Laws. Customer shall comply with all applicable laws and regulations in its use of any Service, including without limitation the unlawful gathering or collecting, or assisting in the gathering or collecting of information in violation of any privacy laws or regulations. Customer shall, at its own expense, defend, indemnify, and hold harmless Clavata from and against any and all claims, losses, liabilities, damages, judgments, government or federal sanctions, costs and expenses (including attorneys’ fees) incurred by Clavata arising from any claim or assertion by any third party of violation of privacy laws or regulations by Customer or any of its agents, officers, directors or employees.

10.3 Assignment. Neither party may transfer and assign its rights and obligations under this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, Clavata may transfer and assign its rights under this Agreement without consent from the other party in connection with a change in control, acquisition, or sale of all or substantially all of its assets.

10.4 Force Majeure. Neither party shall be responsible for failure or delay in performance by events out of their reasonable control, including but not limited to, acts of God, Internet outage, terrorism, war, fires, earthquakes and other disasters (each a “Force Majeure”). Notwithstanding the foregoing, if a Force Majeure continues for more than thirty (30) days, either party may terminate this agreement upon written notice to the other party.

10.5 Notice. All notices between the parties shall be in writing and shall be deemed to have been given if personally delivered or sent by registered or certified mail (return receipt), or by recognized courier service.

10.6 No Agency. Both parties agree that no agency, partnership, joint venture, or employment is created as a result of this Agreement. Customer does not have any authority of any kind to bind Clavata.

10.7 Governing Law. This Agreement shall be governed exclusively by, and construed exclusively in accordance with, the laws of the United States and the State of California, without regard to its conflict of laws provisions. The federal courts of the United States in the Northern District of California and the state courts of the State of California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non conveniens or otherwise. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement, or any Purchase Order issued under this Agreement.

10.8 Publicity. Customer hereby grants Clavata the right to identify Customer as a Clavata customer, and use Customer’s name, mark, and logo on Clavata’s website and in Clavata’s marketing materials with respect to the same. In addition, unless Customer requests otherwise in writing, Customer agrees to participate in certain publicity activity, such as a case study, customer quote, and joint press release.

10.9 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. Any term or provision of this Agreement held to be illegal or unenforceable shall be, to the fullest extent possible, interpreted so as to be construed as valid, but in any event the validity or enforceability of the remainder hereof shall not be affected. In the event of a conflict between this Agreement and the Service Order, the terms of this Agreement shall control unless the Service Order expressly amends, supplements or supersedes the terms of this Agreement.