Customer Agreement

1. Definitions

1.1 The following terms, when used in this Agreement will have the following meanings:

"Affiliate" means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists, wherein "Control" means beneficial ownership of 50% or more of the voting power or equity in an entity or power to direct an entity's management.

"Confidential Information" means any information disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, "Confidential Information" will not include any information that (a) is in the public domain through no fault of the receiving party; (b) was properly known to the receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to the receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information.

"Customer Materials" means any data, content or materials that Customer (including its Users) submits to its Clive Product accounts.

"Documentation" means Clive's standard usage documentation for the Clive Product.

"Third Party Platform" means any product, service or platform not provided by Clive that Customer elects to use with the Clive Product.

"User" means anyone that Customer allows to use its accounts for the Clive Product, consisting of (a) Customer's employees and contractors (solely for purposes of providing services to Customer) and (b) others if permitted in the Documentation or an Order Form.

2. Clive Product

2.1 Provision of Clive Product

Subject to this Agreement and the applicable Order Form, Clive will make the Clive Product available to Customer and hereby grants Customer a non-exclusive right to access and use the Clive Product for its internal business purposes during the applicable subscription term. Customer may permit Users to use the Clive Product on its behalf. Customer is responsible for provisioning and managing its User accounts, for actions conducted under any such User accounts through the Clive Product and for their compliance with this Agreement.

2.2 Data Security

(a) Clive will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer Materials; (ii) protect against threats or hazards to the security or integrity of Customer Materials; and (iii) prevent unauthorized access to Customer Materials.

(b) To the extent that Clive processes any Personal Data (as defined in the DPA referenced below) contained in Customer Materials that is subject to Data Protection Legislation (as defined in the DPA), on Customer's behalf, in the provision of the Clive Product, the Data Processing Addendum ("DPA") currently available at: https://www.cliveapp.ai/dpa is hereby deemed part of this Agreement and incorporated herein by reference.

2.3 Customer Responsibilities

(a) Customer acknowledges that Clive's provision of the Clive Product is dependent on Customer providing all reasonably required cooperation (including the prompt provision of access to Customer's systems, personnel, cooperation and materials as reasonably required and any other access as may be specified in the applicable Order Form), and Customer will provide all such cooperation in a diligent and timely manner.

(b) Customer will (i) use commercially reasonable efforts to prevent unauthorized access to or use of the Clive Product and notify Clive promptly of any such unauthorized access or use or any other known or suspected breach of security or misuse of the Clive Product and (ii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Clive Product, including as set forth in the Documentation. Customer will be solely responsible for its failure to maintain such equipment, software and services, and Clive will have no liability for such failure. As between the parties, Customer is responsible for the content and accuracy of Customer Materials.

2.4 Affiliates

Any Affiliate of Customer will have the right to enter into an Order Form executed by such Affiliate and Clive and this Agreement will apply to each such Order Form as if such Affiliate were a signatory to this Agreement. With respect to such Order Forms, such Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Affiliate. Each Order Form is a separate obligation of the Customer entity that executes such Order Form, and no other Customer entity has any liability or obligation under such Order Form.

2.5 Clive AI Tools

If Customer elects to use any features or functionality that utilize artificial intelligence technology or data models trained by machine learning, including Clive's modeling tools (collectively, "Clive AI Tools"), the use of such Clive AI Tools is subject to the following terms and conditions. For purposes hereof, "Input" means any Customer Materials provided by Customer or Users to be processed by Clive AI Tools; and "Output" means any output generated and returned to Customer or its Users, or automatically generated and transmitted on behalf of Customer or its Users, by Clive AI Tools based on the Input.

(a) Input and Output. Input and Output constitute Customer Materials hereunder. Customer must ensure that its Input, Output and use of Clive AI Tools do not violate any applicable law or infringe, violate, or misappropriate any proprietary rights. Customer acknowledges that due to the nature of machine learning and the technology powering Clive AI Tools, Output may not be unique, and Clive AI Tools may generate the same or similar output for third parties.

(b) Other Restrictions. Customer will not use Clive AI Tools: (i) to mislead any person that Output was solely human generated; or (ii) in violation of OpenAI's Usage Policy, or any other third party terms, guidelines, policies or the like to which the Clive AI Tools link in connection with generation of Output.

3. Fees

3.1 Fees

Customer will pay Clive the fees set forth in the applicable Order Form. Customer will pay those amounts due and not disputed in good faith within thirty (30) days of the date of receipt of the applicable invoice (the "Payment Period"), unless a specific date for payment is set forth in such Order Form, in which case payment will be due on the date specified. Except as otherwise specified herein or in such Order Form, payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable. If Customer disputes an invoice in good faith, it will notify Clive within the Payment Period and the parties will seek to resolve the dispute as soon as reasonably practicable. Clive may provide Customer with written notice of a change or increase in pricing for such Order Form at least sixty (60) days prior to the end of the then-current subscription term, and such modified pricing will become effective thereafter at the time of the renewal.

3.2 Late Payment

Clive may suspend access to the Clive Product immediately upon notice if Customer fails to pay any amounts hereunder at least five (5) days past the applicable due date. If Clive has not received payment within five (5) days after the applicable due date, interest will accrue on past due amounts at the rate of one percent (1%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by Clive.

3.3 Taxes

All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively, "Taxes"). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Clive. Customer will not withhold any Taxes from any amounts due to Clive.

4. Proprietary Rights

4.1 Proprietary Rights

As between the parties, Clive exclusively owns all right, title and interest in and to the Clive Product, System Data and Clive's Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Materials, output produced specifically for Customer via the use of the Clive Product by Customer (which will constitute Customer Materials for purposes hereof) and Customer's Confidential Information. "System Data" means data collected by Clive regarding the Clive Product that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the Clive Product.

4.2 Feedback

Customer may from time to time provide Clive suggestions or comments for enhancements or improvements, new features or functionality or other feedback ("Feedback") with respect to the Clive Product. Clive will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. Clive will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services. All Feedback is provided "AS IS" and Clive will not publicly identify Customer as the source of Feedback without Customer's permission.

4.3 Product Improvement and Aggregated Statistics

Customer further agrees that, notwithstanding anything herein, Clive is hereby granted the right to aggregate, collect, retain and analyze information relating to the performance of the Clive Product and will be free (during and after the term hereof) to (a) use such data and other information to provide and improve Clive's products and services, and (b) disclose such data and other information solely in an aggregated and anonymized format that does not identify Customer or any individual.

5. Confidentiality; Restrictions

5.1 Confidentiality

Each receiving party agrees that it will use the Confidential Information of the disclosing party solely in accordance with the provisions of this Agreement and it will not disclose the same to any third party without the disclosing party's prior written consent, except as otherwise permitted hereunder. However, the receiving party may disclose such Confidential Information (a) to its employees and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and (b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law). Neither party will disclose the terms of this Agreement to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers.

5.2 Technology Restrictions

Customer will not directly or indirectly: (a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the Clive Product; (b) attempt to probe, scan or test the vulnerability of the Clive Product, breach the security or authentication measures of the Clive Product without proper authorization or wilfully render any part of the Clive Product unusable; (c) use or access the Clive Product to develop a product or service that is competitive with Clive's products or services or engage in competitive analysis or benchmarking; (d) transfer, distribute, resell, lease, license, or assign the Clive Product or otherwise offer the Clive Product on a standalone basis; or (e) otherwise use the Clive Product in violation of applicable law (including any export law) or outside the scope expressly permitted hereunder and in the applicable Order Form.

5.3 Injunctive Relief

In the event of actual or threatened breach of the provisions of this Section, the non-breaching party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it.

6. Warranties and Disclaimers

6.1 Mutual

Each party warrants that (a) it has the legal power and authority to enter into this Agreement and (b) it will use industry-standard measures to avoid introducing viruses or other malicious code into the Clive Product.

6.2 Clive

Clive warrants that the Clive Product will perform materially as described in the Documentation and Clive will not materially decrease the overall functionality of the Clive Product during the applicable subscription term (the "Performance Warranty"). Clive will use reasonable efforts to correct a verified breach of the Performance Warranty reported by Customer. If Clive fails to do so within 30 days after Customer's warranty report, then either party may terminate the applicable Order Form as it relates to the non-conforming Clive Product, in which case Clive will provide Customer a pro rata refund of any prepaid subscription fees corresponding to the terminated portion of the applicable subscription term. To receive these remedies, Customer must report a breach of warranty in reasonable detail within 30 days after discovering the issue in the Clive Product. These procedures are Customer's exclusive remedies and Clive's sole liability for breach of the Performance Warranty.

6.3 Customer

Customer warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit Clive to use the same as contemplated hereunder.

6.4 Disclaimers

6.5 No-Charge Products

From time to time, Customer may have access to free accounts or trial use, pre-release, alpha or beta versions or features (collectively, "No-Charge Products") offered by Clive. Customer's use of No-Charge Products is subject to any additional terms that Clive may specify. Except as otherwise set forth in this Section, this Agreement applies to No-Charge Products. Clive may modify or terminate Customer's right to use No-Charge Products at any time. NOTWITHSTANDING ANYTHING TO THE CONTRARY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLIVE DISCLAIMS ALL OBLIGATIONS, WARRANTIES AND LIABILITIES WITH RESPECT TO NO-CHARGE PRODUCTS, INCLUDING ANY SERVICE LEVEL OR INDEMNITY OBLIGATIONS.

7. Indemnification

7.1 Indemnity by Clive

Clive will defend Customer against any claim, demand, suit, or proceeding ("Claim") made or brought against Customer by a third party alleging that the use of the Clive Product as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against Customer (or any settlement approved by Clive) in connection with any such Claim; provided that (a) Customer will promptly notify Clive of such Claim, (b) Clive will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Clive may not settle any Claim without Customer's prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability) and (c) Customer reasonably cooperates with Clive in connection therewith. If the use of the Clive Product by Customer has become, or in Clive's opinion is likely to become, the subject of any claim of infringement, Clive may at its option and expense (i) procure for Customer the right to continue using and receiving the Clive Product as set forth hereunder; (ii) replace or modify the Clive Product to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate the applicable Order Form and provide Customer a pro rata refund of any prepaid subscription fees corresponding to the terminated portion of the applicable subscription term. Clive will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) designs, guidelines, configurations, plans or specifications provided by Customer; (B) use of the Clive Product by Customer not in accordance with this Agreement; (C) modification of the Clive Product by or on behalf of Customer; (D) Customer Materials, or (E) the combination, operation or use of the Clive Product with other products or services where the Clive Product would not by itself be infringing (clauses (A) through (E), "Excluded Claims"). This Section states Clive's sole and exclusive liability and obligation, and Customer's exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.

7.2 Indemnification by Customer

Customer will defend Clive against any Claim made or brought against Clive by a third party arising out of any Excluded Claims, and Customer will indemnify Clive for any damages finally awarded against Clive (or any settlement approved by Customer) in connection with any such Claim; provided that (a) Clive will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without Clive's prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Clive of all liability) and (c) Clive reasonably cooperates with Customer in connection therewith.

8. Limitation of Liability

9. Termination

9.1 Term

The term of this Agreement will commence on the date of the initial Order Form and continue until terminated as set forth below. The initial term of each Order Form will begin on the start date indicated in such Order Form and will continue for the subscription term set forth therein. Except as set forth in such Order Form, the term of such Order Form will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term. If Customer does not agree to automatic renewals, Customer may opt out of automatic renewals by providing written notice to Clive within fourteen (14) days after the date of the initial Order Form.

9.2 Termination

Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect. Each party may also terminate this Agreement or the applicable Order Form upon written notice (a) in the event the other party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party's liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party becomes the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.

9.3 Survival

Upon expiration or termination of this Agreement (a) all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such expiration or termination will survive, including the terms and conditions relating to payment, proprietary rights and confidentiality, technology restrictions, disclaimers, indemnification, limitations of liability and termination and the general provisions below, and (b) each receiving party will return or destroy, at the disclosing party's option, any Confidential Information of such disclosing party in the receiving party's possession or control.

9.4 Customer Materials Retrieval

Upon Customer's written request made on or prior to expiration or termination of the applicable Order Form, Clive will give Customer limited access to the Clive Product for a period of up to thirty (30) days after such expiration or termination, at no additional cost, solely for purposes of retrieving Customer Materials. Subject to such retrieval period and Clive's legal obligations, Clive has no obligation to maintain or provide any Customer Materials and will, unless legally prohibited, delete Customer Materials after such expiration or termination; provided, however, that Clive will not be required to remove copies of the Customer Materials from its backup media and servers until such time as the backup copies are scheduled to be deleted, provided further that in all cases Clive will continue to protect the Customer Materials in accordance with this Agreement. For clarity, during the term of the applicable Order Form, Customer may extract Customer Materials using Clive's standard web services as described in the Documentation.

10. General

10.1 Publicity

Customer agrees that Clive may refer to Customer's name and trademarks in Clive's marketing materials and website; however, Clive will not use Customer's name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer's prior written consent (which may be by email). If Customer does not agree to Clive's use of Customer's name or trademarks in Clive's marketing materials or website, Customer may opt out of such use by providing written notice to Clive within fourteen (14) days after the date of the initial Order Form.

10.2 Assignment

Neither party hereto may assign this Agreement without the other party's prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.

10.3 Amendment; Waiver

Clive reserves the right, in its sole discretion, to modify these terms and conditions from time to time. With respect to each Order Form, any such modification will become effective upon the commencement of the next renewal term for such Order Form. Customer is responsible for reviewing these terms and conditions periodically for changes. If Customer does not agree to the modified terms and conditions, Customer may provide notice of non-renewal at any time before the commencement of Customer's next renewal term. No waiver by either party of any breach or default hereunder will be deemed a waiver of any prior or subsequent breach or default. Any such waiver will apply only to the specific provision and circumstances for which it was given and will not apply to any repeated or continuing violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision. Section headings are for convenience only and will not affect interpretation of this Agreement.

10.4 Relationship

Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.

10.5 Unenforceability

If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.

10.6 Governing Law

This Agreement will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

10.7 Notices

Any notice required or permitted to be given hereunder will be in writing and delivered by personal delivery, certified mail, return receipt requested, or overnight delivery. Notices to Customer may be sent to the address specified in the applicable Order Form or the email address provided by Customer when creating its Clive Product account. Notices to Clive must be sent to the following:

10.8 Entire Agreement

This Agreement comprises the entire agreement between Customer and Clive with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Clive, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement.

10.9 Force Majeure

Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations (excluding payment obligations) due to causes beyond its reasonable control ("Force Majeure Event"), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.

10.10 Interpretation

For purposes hereof, "including" means "including without limitation".