App Terms and Conditions

These Terms and Conditions (“Terms”) are made part of the Services Agreement between Akooda, Inc. (the “Company”) and the Customer listed in the Order which references these Terms. These Terms will govern the use and provisioning of any Services purchased by Customer as described in any Order Form. Any terms not defined herein have the meaning given to them in the applicable Order.

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1. DEFINITIONS

1.1 “Access Credentials” means login information, passwords, security protocols, and policies through which Users access the Company Services.

1.2 “Company Services” means any Company service performed by Company identified in the Order related to the analysis of certain Data Subjects via a Third-Party Platform. References to any Company Services include the Documentation.

1.3 “Customer Content” means the data and content uploaded or submitted into the Company Services by or on behalf of Customer or its Users, including any data or content from a Data Subject.

1.4 “Confidential Information” means all written or oral information, disclosed by one party (the “Disclosing Party”) to the other (the“Recipient”), related to the business, products, services or operations of the Disclosing Party or a third party that has been identified as confidential or that by the nature of the information or the circumstances surrounding disclosure ought reasonably to be treated as confidential, including, without limitation: (i) trade secrets, inventions, ideas, processes, computer source and object code, formulae, data, programs, other works of authorship, know-how, improvements, discoveries, developments, designs and techniques; (ii) information regarding products, plans for research and development, marketing and business plans, budgets, financial statements, contracts, prices, employees, suppliers and agents; and(iii) information regarding the skills and compensation of the Disclosing Party’s employees, contractors, and other agents.

1.5 “Data Subjects” means the Company’s employees, consultants or other authorized parties that utilize the Third-Party Platform, and are the subject of any Services.

1.6 “Documentation” means the documentation, user manuals, help files and videos, and other materials that describe the features, functions and operation of the Company Services.

1.7 “Order” means the document signed by an authorized representative of each party that references these Terms and identifies the specific Services to be made available and the fees to be paid.

1.8 “Personal Information” means any Customer Content that identifies any specific individual and is protected under applicable privacy laws, rules and regulations.

1.9 “Platform” shall mean Company’s proprietary software-as-a- service application identified in the Order that allows Users to access certain features and functions related to the Company Services through a web interface found on Company’s website.

1.10 “Services” means the Company Services, the Platform and any other services set forth in an Order.

1.11 “Third-Party Platform” means the third-party platform identified in the Order to be integrated with the Services, as set forth in this Agreement.

1.12 “User” means each of Customer’s employees and independent contractors, who register as a User with Company for access to the Platform. The number of Users authorized by Company to access the Company Services is set forth int he applicable Order.

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2. SERVICES; PLATFORM

2.1 Services. Subject to the terms and conditions of this Agreement, Company shall use commercially reasonable efforts to perform Company Services, each as mutually agreed to and set forth in the Order.

2.2 License to Use Platform. To the extent specified in an Order and subject to the terms and conditions of this Agreement, Company agrees to make the Platform available to Customer and its Users during the Term (as defined in Section 7).

2.3 Access Credentials. Customer will safeguard, and ensure that all Users safeguard, the Access Credentials. Customer will be responsible for all acts and omissions of Users. Customer will notify Company immediately if it learns of any unauthorized use of any Access Credentials or any other known or suspected breach of security.

2.4 Customer Restrictions. During the Term and thereafter, Customer shall not, and shall not permit any of its employees, contractors, or Users to, directly or indirectly: (a) act as a reseller or distributor of, or a service bureau for, the Services or otherwise use, exploit, make available or encumber any of the Services to or for the benefit of any third party other than Customer’s customers; (b) use or demonstrate the Services in any other way that is in competition with Company; (c) reverse engineer, disassemble or decompile the Company Services or attempt to derive the source code or underlying ideas or algorithms of any part of the Company Services (except to the limited extent applicable laws specifically prohibit such restriction); (d) remove any notice of proprietary rights from the Services; (e) copy, modify, translate or otherwise create derivative works of any part of the Services; (f) use the Company Services in a manner that interferes or attempts to interfere with the proper working of the Company Services or any activities conducted on the Company Services, including bypassing or attempting to bypass any privacy settings or measures used to prevent or restrict access to the Company Services; (g) use manual or automated software, devices, robot, spider, or other processes to “crawl” or “spider” or to retrieve, index, “scrape”, “data mine” or in any way gather information, content or other materials from the Services in an unauthorized manner or reproduce or circumvent the navigational structure or presentation of the Services; (h) use the Services in a manner which interferes with or disrupt sits integrity or performance; (i) use or allow the transmission, transfer, export, re-export or other transfer of any software, technology or information forming a part of the Services in violation of any export control or other laws and regulations of the United States or any other relevant jurisdiction; (j) use the Services to share or store inappropriate materials, including (i) materials containing viruses or other harmful or malicious code; (ii) unsolicited mail (spam); (iii) copyrighted materials to which Customer does not have sufficient rights; (iv) harassing, tortious, or defamatory materials; or (v) other materials prohibited by applicable international, federal, state, or local laws and regulations; (k) create a database by systematically downloading and storing all or any of the Customer Content from the Service; (l) for ward any data generated from the Service without the prior written consent of theCompany; (m) transfer or assign Company Service accounts’ password, even temporarily, to a third party.

2.5 Customer Obligations. Customer will be responsible for obtaining and maintaining, at Customer’s expense, all of the necessary telecommunications, computer hardware, software, and Internet connectivity required by Customer or any User to access the Services from the Internet. In addition, in order for Company to provide the Company Services, Customer agrees to provide Company with access to the Third-Party Platform to enable Company to provide the Services. Customer represents and warrants that it has obtained and will maintain throughout the Term, all rights, consents and permissions for Company to access the Third-Party Platform to provide the Services. Customer shall use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify Company promptly of any such unauthorized use known to Customer.

2.6 Proprietary Rights and Confidential Information

(a) Confidential Information

‍(i) Use and Disclosure. During this Agreement, each party will have access to the other party’s Confidential Information. Except as otherwise expressly permitted, and without limiting each party’s obligations, under this Agreement, each Recipient agrees as follows: (A) it will not disclose the Confidential Information of the Disclosing Party to anyone except its employees and independent contractors who have a need to know and who have been advised of and have agreed to treat such information in accordance with the terms of this Agreement (each a “Representative”) and (B) it will not use or reproduce the Confidential Information disclosed by the Disclosing Party for any purpose other than exercising its rights and performing its obligations as described herein. Each Recipient will be liable for the acts and omissions of its Representatives with respect to the Disclosing Party’s Confidential Information.

(ii) Exceptions. The provisions of Section 2.6 (a) (i) will not apply to Confidential Information that: (A) becomes generally available to the public through no fault of the Recipient; (B) is lawfully provided to the Recipient by a third party free of any confidentiality duties or obligations; (C) Recipient can prove, by clear and convincing evidence, was already known to the Recipient without restriction at the time of disclosure; or (D) Recipient can prove, by clear and convincing evidence, was independently developed by employees and contractors of Recipient who had no access to the Confidential Information. Notwithstanding Section 2.6 (a) (i), each party may disclose Confidential Information to the limited extent required by a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order will first have given written notice to the other party and made a reasonable effort to obtain a protective order.

(b) Customer Content

‍(i) Customer Content Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Content. Customer will obtain all third party licenses, consents and permissions needed for Company to use the Customer Content to provide the Services, including the right to provide all Customer Content related to the Data Subject.

(ii) License in Customer Content. Customer grants to Company, on behalf of itself and its Users, a non-exclusive license to use the Customer Content as necessary for purposes of providing the Services. Except for the limited licenses granted to Company in any Customer Content, as between Customer and Company, Customer reserves all right, title and interest in the Customer Content. Notwithstanding anything to the contrary herein, Customer agrees that the Company has the right to collect, use and analyze any deidentified information derived from the Customer Content (collectively, the “Deidentified Data”) for Company’s lawful business purposes, including to improve and enhance the Services and for other development, diagnostic, and corrective purposes in connection with the Services and any other Company offerings. By submitting Customer Content to the Company, the Customer hereby grants the Company an irrevocable, worldwide, perpetual, non-exclusive, royalty-free, sub-licenseable and transferable license to use, copy, distribute, prepare derivative works, display in public and publicly perform the Deidentified Data.

(c) Company Services. Except for the limited access grant provided to Customer in this Agreement, Company reserves all right, title and interest in its intellectual property and business, including the Services, Documentation, and Company trademarks. Unless otherwise expressly set forth in an Order, and except for any Customer Content, all work product or services provided or developed pursuant to this Agreement or any Order (including any modifications and improvements to any Company Services pursuant subsection (d) or any intellectual property developed pursuant to subsection (e) below), and all intellectual property and other proprietary rights derived therefrom, will be the sole and exclusive property of Company.

(d) Continuous Development. Customer acknowledges that Company may continually develop, deliver and provide to Customer on-going innovation to the Company Services in the form of new features, functionality, and efficiencies. Accordingly, Company reserves the right to modify the Services, or any Company Services, from time to time. Some modifications will be provided to Customer at no additional charge. In the event the Company adds additional functionality to Company Services, the Company may condition the implementation of such modifications on Customer’s payment of additional fees provided Customer may continue to use the version of the Company Services that the Company makes generally available (without such features) without paying additional fees.

(e) Professional Services; Training and Support. Customer may request that the Company provide certain professional services related to Customer’s use of the Company Services. Excluding those agreed between the parties in the Order or a separate statement of work, the Company will have no obligation to provide or perform such services for or on behalf of Customer.

(f) Feedback. Customer agrees to use good faith efforts to promptly report to Company, either orally or in writing, any errors, problems, defects, or suggestions for changes and improvements to the Services (collectively, “Feedback”). Customer acknowledges and agrees that all Feedback and all intellectual property rights therein are the exclusive property of Company, and hereby assigns to Company, all right, title and interest to any and all Feedback. Further, Customer acknowledges and agrees that Feedback may be used by Company in Company’s development of and be incorporated into a version of the Services Company may make available for commercial distribution (“Commercial Release”) or any other software or intellectual property created by Company. Without limiting the foregoing, Company may incorporate Feedback into its products and services and Customer will gain no rights in such products or services by virtue of having disclosed Feedback. Customer agrees and acknowledges that the products and services incorporating such Feedback will be the sole and exclusive property of Company, and Customer will gain no right, title or interest in or to the Services, Documentation or any Commercial Release by virtue of Customer’s provision of Feedback to Company or for any other reason. Company has no obligation to create, distribute or otherwise offer a Commercial Release, and in the event of such Commercial Release, Company has no obligation to offer the Commercial Release to Customer or to offer Customer any discounted pricing schedules or special terms. Customer understands and agrees that the Commercial Release may contain functions and functionality, and perform in a manner significantly different from the current beta version of the Services. Accordingly, Customer acknowledges that any research or development performed, or business plans made, by Customer regarding or in reliance upon the Services are done entirely at Customer’s own risk.

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3. SECURITY. Company will maintain a information security program that contains appropriate administrative, technical and physical safeguards reasonably designed to protect Personal Information from unauthorized disclosure. Such information security program will include business continuity and disaster recovery plans that are consistent with industry standards and are designed to protect against loss of Customer Content. In the event that Company has reason to believe that there has been any unauthorized access to, or loss of, Personal Information from its systems or premises, then it will promptly notify Customer according to Company’s policies and protocols aligned with the data type and nature of the event.

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4. CONSIDERATION.

4.1 Invoicing. Except as otherwise set forth in any Order, all fees related to Customer’s subscription access to the Company Services will be invoiced by Company in advance on a monthly basis (“Subscription Fees”). Unless otherwise set forth in any Order, all other fees set forth in an Order will be invoiced in arrears within ten (10) days of the end of the month in which such services were rendered. The Subscription Fees and all other fees set forth in the Order will be referred to herein as “Fees”.

4.2 Fees. Customer will pay the Fees to Company in accordance with the payment schedule set forth in the applicable Order. Unless otherwise specified in any Order, all invoices issued by Company will be due and payable thirty (30) days after receipt by Customer. All Fees will be paid in U.S. dollars and exclude all applicable sales, use, and other taxes. Any portion of the Fees that is not paid when due will accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. The Fees exclude, and Customer will be solely responsible for, all sales, use, excise, withholding and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity in connection with the Services (excluding taxes based solely on Company’s income).

4.3 Expenses. Customer will reimburse the Company for any pre-approved travel and out-of-pocket expenses incurred by the Company in connection with the provision of Services, provided that Customer has approved such expenses in writing or via email.

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5. WARRANTIES; DISCLAIMERS; LIMITATIONS ON LIABILITY

5.1 General Representations. Each party represents and warrants that: (a) as of the Effective Date and throughout the Term, it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (b) that the execution and performance of the Agreement, or use of the Services, will not conflict with or violate any provision of any law having applicability to such party; and (c) that the Agreement, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms.

5.2 Customer Content. Customer represents and warrants that it has obtained and will maintain throughout the Term, all rights, consents and permissions for Customer to make available the Customer Content to Company and for Company to use the Customer Content as contemplated herein. Customer assumes sole responsibility for any Customer Content posted through the Service.

5.3 Compliance with Laws. Customer will use the Services in accordance with all applicable laws, rules and regulations.

5.4 Beta Services. Customer acknowledges that the Services contain prerelease code and are not at the level of performance and compatibility of a final, generally available product offering. Furthermore, Customer acknowledges that the Services may contain bugs, errors, omissions and other problems that could cause system or other failures and data loss. Customer understands and agrees that Customer shall review any results generated from the Services to confirm that those results are accurate.

5.5 Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. COMPANY DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS, THAT THE SERVICES WILL BE ACCURATE, WITHOUT INTERRUPTION, OR ERROR-FREE. COMPANY MAKES NO REPRESENTATIONS OR GUARANTEES REGARDING THE EFFECTIVENESS OF THE SERVICES OR TIMELINESS OF THE SERVICES IN MEETING YOUR OBJECTIVES. COMPANY IS NOT RESPONSIBLE OR LIABLE FOR ANY BUSINESS DECISIONS MADE FROM ANY USE OF THE SERVICES, FOR WHATEVER REASON MADE.

5.6 Disclaimer of Indirect Damages. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, INTERRUPTION OF SERVICE, OR LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL COMPANY BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES.

5.7 Limitations on Liability. EACH PARTY’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY COMPANY UNDER THE APPLICABLE ORDER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE FIRST DATE ON WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION ON LIABILITY WILL NOT APPLY TO A PARTY’S INDEMNIFICATION OBLIGATIONS.

5.8 Exceptions. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN LIABILITY , IN SUCH JURISDICTIONS THE LIABILITY OF COMPANY WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. THE PROVISIONS OF THIS SECTION 5 WILL APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED, ANY LIMITED REMEDY HEREIN IS HELD TO FAIL OF ITS ESSENTIAL PURPOSE OR THE FORM OF THE CLAIM OR CAUSE OF ACTION, WHETHER IN CONTRACT, WARRANTY, STATUTE, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE).

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6. INDEMNIFICATION

6.1 Company Indemnity. Company will indemnify, defend and hold Customer, its directors, officers, and employees (each a “Customer Indemnified Party”) harmless from and against any and all losses, damages, liability, costs and expenses awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys’ fees and court costs (collectively “Losses”) arising out of any third party claim to the extent alleging that the Services infringe any U.S.patent, copyright, trademark or trade secret.

6.2 Exclusions. Section 6.1 will not apply if the alleged claim arises, in whole or in part, from: (a) a use or modification of the Services by Customer or any User in breach of this Agreement, (b) a combination, operation or use of the Services with other software, hardware or technology not provided by the Company if the claim would not have arisen but for the combination, operation or use, or (c) the Customer Content (any of the foregoing circumstances under clauses (a), (b) or (c) will be collectively referred to as a “Customer Indemnity Responsibility”).

6.3 Customer Indemnity. Customer will indemnify, defend and hold harmless the Company, its directors, officers, and employees (each a “Company Indemnified Party”) from and against any and all Losses arising out of any third party claim (a) alleging a Customer breach of any Customer representation or warranty in this Agreement, and (b) arising out of any Customer Indemnity Responsibility.

6.4 Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified party: (a) notifying the indemnifying party promptly in writing of such action, (b) reasonably cooperating and assisting in such defense and (c) giving sole control of the defense and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified party, without consent.

6.5 Infringement. If the Services are, or in Company’s opinion, are likely to become, the subject of any infringement-related claim, then Company will, at its expense and in its discretion: (a) procure for Customer the right to continue using the Services; (b) replace or modify the infringing technology or material so that the Services become non-infringing and remain materially functionally equivalent; or (c) terminate the Order pursuant to which the Services are provided and give Customer a refund for any pre-paid but unused Fees.

6.6 THE PROVISIONS OF THIS SECTION 6 STATE COMPANY’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY CLAIM THAT THE SERVICES INFRINGE A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHT.

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7. TERM AND TERMINATION

7.1 Term. The term of this Agreement will commence on the Effective Date and shall remain in effect for the initial term set forth in the Order (the “Initial Term”). Except as set forth in the Order, thereafter, this Agreement shall automatically renew for successive one (1) year terms (each a “Renewal Term”), unless either party provides notice to the other of its intention not to renew at least thirty (30) days prior to expiration of the Initial Term or the then-current Renewal Term. The Initial Term and all Renewal Terms will collectively be referred to as the “Term”.

7.2 Termination. Either party may terminate this Agreement or any Order, at its discretion, effective immediately upon written notice to the other if the other party materially breaches any provision of this Agreement and does not substantially cure the breach within thirty (30) days after receiving written notice.

7.3 Suspension of Service(s). At any time during the Term, Company may, immediately upon notice to Customer, suspend access to any Service for the following reasons: (a) a threat to the technical security or technical integrity of the Services; (b) any amount due under this Agreement is not received by Company within fifteen (15) days after it was due, or (c) breach or violation by Customer or Customer’s User of any laws, rules, or regulations.

7.4 Return of Customer Content. Following the termination of this Agreement for any reason, Company reserves the right to permanently and definitively delete the Customer Content. Upon Customer’s request, the Company will use reasonable efforts to delete Customer Content, however that information may not be deleted immediately from Company’s back-up systems.

7.5 Effects of Termination. Upon termination or expiration of this Agreement for any reason, (a) any amounts owed to Company prior to such termination or expiration and all completed but unpaid Professional Services fees will be immediately due and payable and (b) all licensed and access rights granted will immediately cease to exist. Sections 1, 2.4, 2.6, 4, 5, 6, 7.4, 7.5 and 8 will survive any expiration or termination of this Agreement.

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8. GENERAL

8.1 Assignment. This Agreement may not be assigned by Customer without the prior written consent of Company; provided, however, that Customer may assign this Agreement in connection with a sale of all or substantially all of its assets. Any attempted assignment or delegation in violation of this Section 8.1 will be null, void and of no effect.

8.2 Publicity. During the Term and thereafter, the Company may refer to Customer as a Company customer, orally and in writing (including in promotion or marketing materials and on Company’s website and social media postings).

8.3 Notices. All notices, consents, and approvals under this Agreement must be delivered via email or in writing by courier, by electronic facsimile (fax), or by certified or registered mail, (postage prepaid and return receipt requested) to the other party at the address set forth in the Order and will be effective upon receipt. Either party may change its address by giving notice of the new address to the other party.

8.4 Governing Law; Disputes. This Agreement will be governed by the laws of the Commonwealth of Massachusetts, without reference to its conflicts of law principles. The United Nations Convention for the International Sale of Goods will not apply to this Agreement. Any dispute, controversy or claim arising out of or relating to this Agreement, will be made exclusively in the state or federal courts located in Boston, Massachusetts and both parties submit to the jurisdiction and venue of such courts.

8.5 Remedies. Customer acknowledges that any actual or threatened breach of Section 2 will constitute immediate, irreparable harm to Company for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach. If any legal action is brought to enforce this Agreement, the prevailing party will be entitled to receive its reasonable attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive.

8.6 Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

8.7 Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.

8.8 No Third Party Beneficiaries. The parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity (including any User, Administrator or Employee) other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.

8.9 Construction. The parties negotiated this Agreement with the opportunity to receive the aid of counsel and, accordingly, intend this Agreement to be construed fairly, according to its terms, in plain English, without constructive presumptions against the drafting party. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.”

8.10 Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a natural disaster, war, act of terror, or any other event beyond the reasonable control of such party. The affected party will use reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.

8.11 Entire Agreement. This Agreement constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. This Agreement may be amended only by a written document signed by both parties.

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