Cloud Services Agreement

THIS CLOUD SERVICES AGREEMENT (“AGREEMENT”) IS BETWEEN DIME CAMPUS, INC. (“VENDOR”)AND OUR CUSTOMERS, AND GOVERN’S CUSTOMER’S USE OF AND ACCESS TO THE SERVICES.CERTAIN CAPITALIZED TERMS ARE DEFINED IN SECTION 19 (DEFINITIONS) AND OTHERS ARE DEFINED CONTEXTUALLY IN THIS AGREEMENT. TERMS NOT DEFINED HEREIN SHALL BE DEFINED INTHE ORDER.

BY ACCEPTING THIS AGREEMENT, BY ACCEPTING OR EXECUTING AN ORDER FORM OR SIMILAR DOCUMENT THAT REFERENCES THIS AGREEMENT (“ORDER”), CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. THE TERM“CUSTOMER” WILL REFER TO THE INDIVIDUAL ACCEPTING THIS AGREEMENT, PROVIDED THAT IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, AND THE TERM “CUSTOMER”WILL REFER TO SUCH ENTITY. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE OR ACCESS THE SERVICES.

1.    Services.

1.1.  Permitted Use. During the Term, subject to Customer’s compliance with the terms of this Agreement: (a) Customer may access and use the Services only for its internal business purposes in accordance with the Documentation, this Agreement, and any limitations set forth in the applicable Order; and (b) Vendor grants Customer a limited, non-transferable, revocable, non-exclusive, non-sublicensable right and license for each User to: (i) download and install any Software necessary to access or use the Services, and (ii) use the Software for the sole purpose of accessing and using the Service. Customer will be responsible for installing all updatesVendor makes available to the Software. Failure to install such updates will void the Performance Warranty (as defined in Section 10.1 below).

1.2.  Users. Customer is responsible for its Users’ compliance with this Agreement and all actions taken through their account. Customer will promptly notify Vendor if it becomes aware of any compromise of any accounts.

1.3. Restrictions. Customer will not (and will not permit anyone else to) do any of the following: (a) provide access to, distribute, sell, or sublicense a Service to a third party (other than Users); (b) use a Service on behalf of, or to provide any product or service to, third parties; (c) use a Service to develop a similar or competing product or service; (d) reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs to a Service, except to the extent expressly permitted by Law (and then only with prior notice to Vendor); (e) modify or create derivative works of a Service or copy any element of a Service; (f)remove or obscure any proprietary notices in a Service; (g) publish benchmarks or performance information about a Service; (h) interfere with the operation of a Service, circumvent any access restrictions, or conduct any security or vulnerability test of a Service; (i) transmit any viruses or other harmful materials to a Service; (j) take any action that risks harm to others or to the security, availability, or integrity of a Service; (k) access or use a Service in a manner that violates any Law or privacy rights; (l) represent that Output was human-generated when it was not; (m) automatically or programmatically extract data or Output, or (n) use Output to develop, enhance or fine-tune artificial intelligence models. Additionally, Customer must not use a Service with Prohibited Data or for High Risk Activities. Customer acknowledges that the Services are not intended to meet any legal obligations for these uses, including HIPAA requirements, and that Vendor is not a Business Associate as defined under HIPAA. Notwithstanding anything else in this Agreement, Vendor has no liability for Prohibited Data or use of a Service for High Risk Activities.

1.4. AI Features and Outputs. Subject to the restrictions set forth in thisAgreement, Customer may freely use the Output. Customer acknowledges that due to the nature of AI Features, outputs ofAI Features may not be unique, and may generate content that is similar toCustomer’s Outputs.

1.5.  AutomationFeatures. Vendor may allow Customer to enable features of the Services that permit the Services to automatically take actions on behalf of Customer(including, by way of example, generating and sending communications on behalf of Customer) (“Automated Actions”). If Customer opts to enable AutomatedActions within the Service, Customer hereby authorizes Vendor and the Services to take such enabled Automated Actions on behalf of Customer and in Customer’s name.

2.     Support.

During a Subscription Term, Vendor will use commercially reasonable efforts to provide support for the Services during its standard business hours in accordance withVendor’s standard support practices (“Support”).Vendor will use commercially reasonable efforts to ensure that the Service has an Uptime of 99.9% or greater per calendar month.

3.    Upgrades.

Customer’s purchase of access to Services is not contingent on the delivery of any future functionality or features or dependent on any oral or written public or private comments made byVendor regarding future functionality or features of the Services. From time to time, Vendor, in its sole discretion, may make available Upgrades under additional or different terms. Nothing in this Agreement obligates Vendor to make Upgrades available to Customer as part of the Services or otherwise unless specifically included in the applicableOrder.

4.    Data.

4.1. Connected Data Sources. Customer hereby authorizes Vendor to: (a)access the Connected Data Sources using the access credentials or other means provided by or on behalf of Customer (the “CDS Credentials”); (b) transmit, copy, scrape, and transfer the data present or available through such ConnectedData Sources to Vendor’s own systems (“CDSData”); and (c) use, copy, store, disclose, transmit, transfer, modify, and create derivative works of such CDS Data, in each case of (a) through (c)as reasonably necessary to create, maintain, and update the Customer Model.

4.2. Use of Customer Data. Customer grants Vendor the non-exclusive, worldwide, sublicensable right to use, copy, store, disclose, transmit, transfer, modify, and create derivative works from Customer Data and Output only as necessary to provide any Services, Support, and Implementation Services and as otherwise required by Laws or as agreed to in writing between the parties.

4.3.  Data ProtectionLaws. Customer will not use the Service with any Customer Data that is subject to Data Protection Laws without first entering into a data processing addendum or other written with Vendor concerning theProcessing of such Customer Data in accordance with such Data ProtectionLaws.

4.4.  Security. Vendor will implement and maintain commercially reasonable policies and procedures designed to protect the Customer Data against unauthorized access, use, loss or disclosure. The foregoing constitutes Vendor’s sole and exclusive obligation with respect to protection of Customer Data from unauthorized access, use, loss or disclosure.

4.5. Usage Data; Aggregated Data. Customer grants Vendor the non-exclusive, worldwide, sublicensable right to use, copy, store, disclose, transmit, transfer, modify, and create derivative works from (i) Customer Data (other than Sensitive CDS Data) and (ii) Output, for each of (i) and (ii), to derive or generate Usage Data and create and compile Aggregated Data. Vendor may Process Usage Data and Aggregated Data for internal business purposes, such as to: (a) provide support for Services; (b) monitor the performance and stability of the Services; (c) prevent or address technical issues with the Services; (d) to improve Services, its other products and services, and to develop new products and services; and (e) for all other lawful business practices. Customer will not interfere with the collection of UsageData.

5.    Customer Obligations.

Customer is responsible for its Customer Data, including its content and accuracy, and will comply with Laws when using theServices. Customer represents and warrants that it has made all disclosures, provided all notices, and has obtained all rights, consents, and permissions necessary for Vendor to: (a) exercise the rights granted in Section 4.1 and 4.5, and (b) Process Customer Data (including through Connected Data Sources or by using CDS Credentials), as set forth in this Agreement, in each case, without violating or infringing Laws, third-party rights, or terms or policies that apply to the Customer Data or Connected Data Sources.

6.    Suspension of Service.

Vendor may immediately suspend Customer’s access to any or all of the Services if: (a)Customer breaches Section 1.3 (Restrictions)or Section 5 (CustomerObligations); (b) Customer’s account is 30 days or more overdue; (c) changes toLaws or new Laws require that Vendor suspend a Service or otherwise may impose additional liability on the part of Vendor; or (d) Customer’s actions risk harm to any of Vendor’s other customers or the security, availability, or integrity of a Service. Where practicable, Vendor will use reasonable efforts to provide Customer with prior notice of the suspension (email sufficing). If the issue that led to the suspension is resolved, Vendor will restore Customer’s access to the Service(s).

7.    Third-Party Platforms.

Use of Third-Party Platforms is subject to Customer’s agreement with the relevant provider and not this Agreement. Use of the Required Platforms is required to use theService. Vendor does not control and has no liability for Third-PartyPlatforms, including their security, functionality, operation, availability, or interoperability with the Services or how the Third-Party Platforms or their providers use Customer Data. By enabling a Third-Party Platform to interact with the Services, Customer authorizes Vendor to access and exchange CustomerData with such Third-Party Platform on Customer’s behalf.

8.    Implementation Services.

Customer will give Vendor timely access to Customer Data and Customer Materials reasonably needed for the Implementation Services, and if Customer fails to do so, Vendor’s obligation to provide Implementation Services will be excused until access is provided. Vendor will use Customer Materials only for purposes of providing Implementation Services. Customer may use Implementation Services deliverables, if any, only as part of its authorized use of the Services and, subject to the same terms as for the Services in Section 1 (Services) andSection 5 (Customer Obligations). The details of the Implementation Services may be set forth in one or more written statements of work entered into by parties under this Agreement (each an “SOW”).

9.    Commercial Terms.

9.1.  Subscription Term. Unless otherwise specified in the applicable Order, the initialSubscription Term begins on the Effective Date of the Order and will continue for the period specified in the Order (or if not specified, one year), and thereafter automatically renew for successive one-year periods unless either party gives the other party notice of non-renewal at least 30 days before the then-current Subscription Term ends.

9.2. Fees and Taxes. Fees for the Implementation Services (“ImplementationFee”) and fees for the Services (“Service Fees”, and together with the Implementation Fee, the “Fees”) are described in each Order or SOW, as applicable. Customer will reimburse Vendor for reasonable travel and lodging expenses it incurs in providing theImplementation Services (“Expenses”). All Fees and Expenses will be paid in US dollars unless otherwise provided in the relevant Order or SOW. Fees are invoiced as described on the schedule in the relevant Order or SOW and Expenses are invoiced in arrears. Unless the relevant Order or SOW provides otherwise, all Fees and Expenses are due within30 days of the invoice date. Fees for renewal Subscription Terms are at Vendor’s then-current rates, regardless of any discounted pricing in a prior Order or SOW. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by Law, whichever is less. All Fees and Expenses are non-refundable except as may be set out inSection 10.2 (Warranty Remedy), Section 14.4 (Mitigation). Customer is responsible for any sales, use, GST, value-added, withholding, or similar taxes or levies that apply to Orders or SOWs, whether domestic or foreign, other than Vendor’s income tax (“Taxes”). Fees and Expenses are exclusive of all Taxes.

10.  Warranties and Disclaimers.

10.1. Limited Warranties. Vendor warrants to Customer that: (a) each of the Services will perform materially as described in its Documentation and Vendor will not materially decrease the overall functionality of the Service. (“Performance Warranty”) during a Subscription Term (“Performance Warranty Period”); and (b) Vendor will perform any Implementation Services in a professional and workmanlike manner (“Implementation Services Warranty”).

10.2. Warranty Remedy. If Vendor breaches Performance Warranty during the applicable Performance Warranty Period or the Implementation ServicesWarranty and Customer makes a reasonably detailed warranty claim in the manner required by Vendor within 30 days of discovering a breach of the PerformanceWarranty or Implementation Services Warranty, as applicable, then Vendor will use reasonable efforts to correct the non-conformity. If Vendor cannot do so within 30 days of receipt of Customer’s warranty claim, either party may terminate the Agreement. Vendor will then refund to Customer any pre-paid, unused fees for the terminated portion of the applicable Subscription Term (for the PerformanceWarranty) or for the non-conforming Implementation Services (for theImplementation Services Warranty). This Section sets forth Customer’s exclusive remedy and Vendor’s entire liability for breach of the Performance Warranty and the Implementation Services Warranty. These warranties do not apply to: (a) issues caused by Customer’s or Users’ misuse of or unauthorized modifications to the applicable Service; (b) issues in or caused by Third-Party Platforms or other third-party systems; (c) use of the applicable Service other than according to the Documentation; or (d) free or evaluation use.

10.3. Disclaimers. Except as expressly provided in Section 10.2 (Limited Warranties), the Output, AutomatedActions, Services, Support, Implementation Services, and all other Vendor services are provided “AS IS”. Vendor, on its own behalf and on behalf of its suppliers and licensors, makes no other warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular purpose, title, or non-infringement. Vendor does not warrant that Customer’s use of the Services will be uninterrupted or error-free, that Vendor will review Automated Actions, Output or Customer Data for accuracy, or that it will maintain Customer Data without loss. Vendor is not liable for delays, failures, or problems inherent in use of the Internet and electronic communications or other systems outside Vendor’s control.Customer may have other statutory rights, but any statutorily required warranties will be limited to the shortest legally permitted period.

11.  Term and Termination.

11.1. Term. The term of this Agreement (the “Term”) starts on the date that the first Order entered into hereunder is accepted and continues until expiration or termination of the Subscription Term.

11.2. Termination. Either party may terminate thisAgreement if the other party: (a) fails to cure a material breach of thisAgreement (including a failure to pay fees) within 30 days after notice; (b) ceases operation without a successor; or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 30 days.

11.3. Effect of Termination. Upon expiration or termination of the Agreement, Customer’s access to and Vendor’s obligations to provide the Services, Software, Support, andImplementation Services will cease, and Vendor will promptly (but in any event within 90 days of such expiration or termination) delete the Customer Model and ConnectedData Source Data from its systems, provided that Vendor will be permitted to retain such Customer Model and Connected Data Source Data the extent required for Vendor to comply with Law, or for audit or archival purposes only. Further, Customer Data and other Confidential Information, as defined in Section 15, may be retained in Recipient’s standard backups notwithstanding any obligation to delete it, but will remain subject to this Agreement’s confidentiality restrictions.

11.4. Survival. These Sections survive expiration or termination of this Agreement: 1.3 (Restrictions), 1.4 (Outputs), 4.5 (Usage Data; Aggregated Data), 5 (Customer Obligations), 9.2 (Fees and Taxes), 10.3 (Disclaimers), 11.3 (Effect of Termination), 11.4 (Survival), 12 (Ownership), 13 (Limitations of Liability), 14 (Indemnification), 15 (Confidentiality), 16 (Required Disclosures), 18 (General Terms), and 19 (Definitions). Except where an exclusive remedy is provided in this Agreement, exercising a remedy under this Agreement, including termination, does not limit other remedies a party may have.

12.  Reservation of Rights.

Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except as expressly provided in this Agreement, as between the parties, Customer retains all intellectual property rights and other rights in Customer Data and Customer Materials provided to Vendor. Except for Customer’s use rights in this Agreement, Vendor and its licensors retain all intellectual property rights and other rights in the Services, any Implementation Services deliverables, Software, Documentation, Usage Data, and Vendor technology, templates, formats, and dashboards, including any modifications or improvements to these items made by Vendor. If Customer provides Vendor with feedback or suggestions regarding the Services or other Vendor offerings, Vendor may use the feedback or suggestions without restriction or obligation.

13.  Limitations of Liability.

13.1. Consequential Damages Waiver. Except for Excluded Claims (as defined below)neither party (nor its suppliers or licensors) will have any liability arising out of or related to this Agreement for any loss of use, lost data, lost profits, failure of security mechanisms, interruption of business, or any indirect, special, incidental, reliance, or consequential damages of any kind, even if informed of their possibility in advance.

13.2. Liability Cap. Except for Excluded Claims, each party’s (and its suppliers’ and licensor’s) entire liability arising out of or related to this Agreement will not exceed in aggregate the amounts paid or payable byCustomer to Vendor pursuant to this Agreement during the 12 months prior to the date on which the applicable claim giving rise to the liability arose under this Agreement.

13.3. Excluded Claims. “Excluded Claims” means: (a) Customer’s breach of Sections 1.3 (Restrictions)or 5 (Customer Obligations); (b) either party’s breach of Section 15 (Confidentiality) (but excluding claims relating to Customer Data); or (c) amounts payable to third parties under the indemnifying party’s obligations inSection 14(Indemnification).

13.4. Nature of Claims and Failure of Essential Purpose. The waivers and limitations in this Section 13.4 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.

14.  Indemnification.

14.1. Indemnification by Vendor. Vendor will defend Customer from and against any third-party claim to the extent alleging that a Service, when used by Customer as permitted under this Agreement infringes or misappropriates a third-party’s intellectual property rights and will indemnify and hold harmless Customer against any damages and costs awarded against Customer (including reasonable attorneys’ fees) or agreed in a settlement by Vendor resulting from the claim.

14.2. Indemnification by Customer. Customer will defend Vendor from and against any third-party claim to the extent resulting from Customer Data, Customer Materials, or Customer’s breach or alleged breach of Section 5 (Customer Obligations), and will indemnify and hold harmless Vendor against any damages and costs awarded against Vendor (including reasonable attorneys’ fees) or agreed in a settlement by Customer resulting from the claim.

14.3. Procedures. The indemnifying party’s obligations in this Section 14 are subject to it receiving: (a) prompt written notice of the claim; (b) the exclusive right to control and direct the investigation, defense, and settlement of the claim; and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action(other than relating to use of the Services, when Vendor is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.

14.4. Mitigation. In response to an actual or potential infringement or misappropriation claim or otherwise relating to violation of intellectual property rights, if required by settlement or injunction or as Vendor determines necessary to avoid material liability, Vendor may at its option: (a) procure rights for Customer’s continued use of the applicable Service; (b) replace or modify the allegedly infringing portion of the applicable Service to avoid infringement or misappropriation without reducing the Service’s overall functionality; or (c) terminate the Agreement and refund to Customer any pre-paid, unused for the terminated portion of the Subscription Term.

14.5. Exceptions. Vendor’s obligations in this Section 14 do not apply: (a) to infringement or misappropriation resulting from Customer’s modification of Services or use of Services in combination with items not provided by Vendor (including Third-Party Platforms); (b) to infringement resulting from Software other than the most recent release made available to Customer; (c) to infringement or misappropriation resulting from or based on Customer Data, AI Features or their Outputs; (d) to unauthorized use of Services; (e) if Customer settles or makes any admissions about a claim without Vendor’s prior consent; or (f) to free or evaluation use.

14.6. Exclusive Remedy. This Section 14 sets out Customer’s exclusive remedy and Vendor’s entire liability regarding infringement or misappropriation of third-party intellectual property rights.

15.  Confidentiality.

15.1. Definition. “Confidential Information” means information disclosed to the receiving party (“Recipient”) under this Agreement that is designated by the disclosing party (“Discloser”) as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. Vendor’s Confidential Information includes the terms and conditions of this Agreement and any technical or performance information about the Services. Customer’s Confidential Information includes Customer Data.

15.2. Obligations. As Recipient, each party will: (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, including Section 4.1 (Connected Data Sources) and 4.2 (Use of Customer Data); and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. At Discloser’s request,Recipient will delete all Confidential Information, except, in the case where Vendor is the Recipient, Vendor may retain the Customer’s Confidential Information to the extent required to continue to provide the Services. Recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know (including, for Vendor, the subcontractors referenced in Section 18.8), provided it remains responsible for their compliance with this Section 15 and they are bound to confidentiality obligations no less protective than this Section 15. Nothing in this Section will limit the rights granted in Section 4.

15.3. Exclusions. These confidentiality obligations do not apply to information that Recipient can document: (a) is or becomes public knowledge through no fault of the receiving party; (b) it rightfully knew or possessed prior to receipt under this Agreement; (c) it rightfully received from a third party without breach of confidentiality obligations; or (d) it independently developed without using Confidential Information.

15.4. Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of thisSection 15.

16.  Required Disclosures.

Nothing in this Agreement prohibits either party from making disclosures, including of Customer Data and other Confidential Information, if required by Law, subpoena, or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment.

17.  Publicity.

Neither party may publicly announce that the parties have entered into this Agreement, except with the other party’s prior consent or as required by Laws. However, Vendor may include Customer and its trademarks in Vendor’s lists and promotional materials but will cease further use at Customer’s written request.

18.  General Terms.

18.1. Assignment. Neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all its assets or voting securities to the other party involved in such transaction. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.

18.2. Governing Law, Jurisdiction and Venue. This Agreement is governed by the laws of the State of California and the United States without regard to conflicts of laws provisions that would result in the application of the laws of another jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in San Francisco, California and both parties submit to the personal jurisdiction of those courts.

18.3. Notices. Except as set out in this Agreement, any notice or consent under this Agreement must be in writing to the addresses on applicable Order, or if not specified, then for notices to Customer, to the address Vendor then-has on file for Customer, and for notices to Vendor, to 2261 MarketSt, Unit 4133, San Francisco, CA 94114. Notice will be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if by certified or registered U.S. mail (return receipt requested); or (c) one day after dispatch if by a commercial overnight delivery service. Notices may not be sent via email unless otherwise expressly permitted elsewhere in this Agreement. Either party may update its address with notice to the other party. Vendor may also send operational notices to Customer by email or through theServices.

18.4. Entire Agreement. This Agreement (which includes all Orders) is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous regarding its subject matter. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement.

18.5. Amendments. Any amendments, modifications, or supplements to this Agreement must be in writing and signed by each party’s authorized representatives or, as appropriate, agreed through electronic means provided by Vendor. The terms in any Customer purchase order or business form will not amend or modify this Agreement and are expressly rejected by Vendor; any of these Customer documents are for administrative purposes only and have no legal effect.

18.6. Waivers and Severability. Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal, or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.

18.7. Force Majeure. Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license, or natural disaster (“Force Majeure Events”).

18.8. Subcontractors. Vendor may use subcontractors and permit them to exercise Vendor’s rights, but Vendor remains responsible for their compliance with this Agreement and for its overall performance under this Agreement.

18.9. Independent Contractors. The parties are independent contractors, not agents, partners, or joint venturers.

18.10. Export. Customer will comply with all relevant U.S. and foreign export and import Laws in using any Service. Customer: (a) represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country; (b) agrees not to accessor use Services in violation of any U.S. export embargo, prohibition, or restriction; and (c) will not submit to the Services any information controlled under the U.S. International Traffic in Arms Regulations.

18.11. Open Source. The Software may incorporate third-party open source software (“OSS”). To the extent required by the OSS license, that license will apply to the OSS on a stand-alone basis instead of this Agreement.

18.12. Government End-Users. Elements of the Services are commercial computer software.If the user or licensee of the Services is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance withFederal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Services were developed fully at private  expense. All other use is prohibited.

18.13. Conflicts in Interpretation. If there are inconsistencies or conflicts between the of the body of this Agreement, the Documentation and the terms of any exhibits or other documents attached to or incorporated by reference in this Agreement, the order of precedence is as follows: (a) the terms contained in the body of this Agreement (including all Orders); (b) the terms of such exhibits and other documents; and (c) the Documentation.

19.  Definitions.

19.1. “AI Features” means a feature of theService that is powered by or uses generative artificial intelligence or other machine learning functionality.

19.2. “Affiliate” means an entity directly or indirectly owned or controlled by a party, where “ownership” means the beneficial ownership of 50% or more of an entity’s voting equity securities or other equivalent voting interests and “control” means the power to direct the management or affairs of an entity.

19.3. “AggregatedData” means Customer Data (excluding Sensitive CDS Data) that has been de-identified or aggregated with other data such that the resulting data no longer reasonably identifies Customer or a specific individual.

19.4.  “Connected Data Source” means a database or other data source to which Customer provides Vendor access for the purposes of developing, maintaining or updating the Customer Model.

19.5. “Customer Data” means any data or information that: (a) Customer (including its Users) submits to the Services, including from Third-Party Platforms; and (b) is Processed by Vendor to provide the Services to Customer, including, without limitation, Input, CDS Credentials, CDS Data and the Customer Model.

19.6. “CustomerMaterials” means materials, systems, and other resources that Customer provides to Vendor in connection with Implementation Services.

19.7. “CustomerModel” means the artificial intelligence or machine learning model trained on CDS Data.

19.8. “DataProtection Laws” means: (a) the California Consumer Privacy Act of 2018 (California Civil Code §§ 1798.100 to 1798.199) and its implementing regulations, as amended or superseded from time to time; (b) the General DataProtection Regulation (EU) 2016/679 (“GDPR”), and the e-PrivacyDirective 2002/58/EC (as amended by Directive 2009/136/EC), their national implementations in the European Economic Area (“EEA”), and all other data protection laws of the EEA including laws of the European Union (“EU”),the data protection laws of the United Kingdom (“UK”) and Switzerland, each as applicable, and as may be amended or replaced from time to time; and (c) any similar Laws.

19.9. “Documentation”means the then-current version of Vendor’s written usage guidelines and technical documentation for the Services that Vendor provides or makes available to Customer from time to time.

19.10. “High Risk Activities” means activities where use or failure of a Service could lead to death, personal injury, or environmental damage, including life support systems, emergency services, nuclear facilities, autonomous vehicles, or air traffic control.

19.11. “Implementation Services” means any implementation, training, or configuration services provided by Vendor related to the Services, as identified in an Order. Implementation Services exclude Support.

19.12. “Inputs” means the queries, prompts or other inputs provided by Customer to the Services to elicit an Output.

19.13. “Laws” means all applicable relevant local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications, and export of data.

19.14. “Output” means the text, images, audio, information or other content, materials or works generated by the AI Features of the Service in response to prompts or queries provided by Customer.

19.15. “Process” means to collect, access, use, disclose, transfer, transmit, store, host, or otherwise process.

19.16. “Prohibited Data” means any: (a) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (b) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”); (c) credit, debit, or other payment card data subject to the Payment Card Industry DataSecurity Standards (“PCI DSS”); (d) other information subject to regulation or protection under specific Laws such as the Children’s OnlinePrivacy Protection Act or Gramm-Leach-Bliley Act (or related rules or regulations); (e) social security numbers, driver’s license numbers, or other government ID numbers; or (f) any data similar to the above protected Laws.

19.17. “Required Platforms” means OpenAI LLC’s Chat-GPT, and Slack Technologies, LLC’s Slack service, in each case, together with their related features and services necessary to provide or use the Services. Vendor may update the list of Required Platforms by notifyingCustomer.

19.18. “Sensitive CDS Data” means CDS Data obtained from a Connected Data Source that is marked as “Sensitive” in the applicable Order.

19.19. “Service” or “Services”means the then-current version of Vendor’s proprietary artificial intelligence-powered enterprise resource planning platform. Service includes the Software and Documentation for the Service but excludes Support and Implementation Services.

19.20. “Software” means any software, scripts, or other code provided by Vendor and required to operate a Service.

19.21. “Subscription Term” means the period during which Customer’s subscription to access and use the Services is in effect, as indicated on the applicable Order (or if not so indicated, then one month).

19.22. “Third-Party Platform” meansConnected Data Sources, Required Platforms, any third-party platform, website, add-on, service, or product that Customer elects to integrate or enable for use with any Service.

19.23. “Upgrades” means additions, enhancements, upgrades, new services, or modules that include new features and substantial increases in functionality to the Services that Vendor makes available to its customers for an additional fee.

19.24. “Uptime” means, for a given calendar month, the number of hours in which the Service was unavailable to Customer divided by the total number of hours in such calendar month less hours during which the Service was unavailable due to (A) scheduled downtime, or (B) causes not within Vendor’s reasonable control.

19.25. “Usage Data” means information generated from the use of the Services, which data does not identify Users, any other natural human persons, or Customer, such as technical logs, data, and learnings about Customer’s use of the Services, but excluding any Sensitive CDS Data or identifiable Customer Data.

19.26. “User” means any employee or contractor of Customer or its Affiliates that Customer allows to use the Services on Customer’s behalf.

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