This Software as a Service Agreement (this “Agreement”) governs the access to and use of the Otti platform provided by Otti, Inc., a Delaware corporation with its principal place of business at 7200 Wisconsin Ave #500, Bethesda, MD 20814 (“Provider”). This Agreement is entered into by Provider and the customer entity identified in an applicable Order Form that references this Agreement (“Customer”). Provider and Customer are referred to collectively as the “Parties” and individually as a “Party.”

WHEREAS, Provider provides access to the Services (as defined below) to its customers; and 

WHEREAS, Customer desires to access the Services, and Provider desires to provide Customer with access to the Services, in each case, on the terms and subject to the conditions set forth herein.

NOW, THEREFORE, in consideration of the mutual covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree to the foregoing and as follows:

By executing an Order Form or other ordering document that references this Agreement, Customer agrees to be bound by the terms of this Software as a Service Agreement as of the Effective Date. The “Effective Date” of this Agreement will be the date on which the applicable Order Form is executed by both Provider and Customer.

1. DEFINITIONS

   1.1. “Authorized User” means any employee, consultant, or contractor of Customer who (i) is authorized by Customer to access and use the Services, and (ii) has been provisioned access under a valid subscription purchased by Customer.

   1.2. “Customer Data” means (i) information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services; and (ii) data that is generated and made available to Customer by the Services through use of the data described in subsection (i) above, other than De-Identified Data. 

   1.3 “De-Identified Data” means data and information related to Customer’s use of the Services or otherwise based on Customer Data that is de-identified in accordance with applicable laws and used for legally permissible purposes, including to compile statistical and performance information related to the provision and operation of the Services.

   1.4. “Documentation” means Provider’s user manuals, handbooks, and guides and other training and supporting materials relating to the Services, which may be provided by Provider to Customer electronically.

   1.5. “Fees” means the Subscription Fees and the Maintenance and Support Fees.

   1.6. “Order Form” means a written purchase order document executed by the Parties, substantially in the form attached hereto as Exhibit A.

   1.7. “Provider IP” means the Services, the Documentation and all other technology, including software and other works of authorship, graphical user interfaces, workflows, products, processes and algorithms, data, know-how and trade secrets, designs, techniques, inventions and other tangible or intangible technical material or information, provided by or on behalf of Provider in connection with the foregoing, whether created, developed or reduced to practice as part of the provision of the Services or otherwise, and all improvements, enhancements, modifications and derivative works of any of the foregoing, in each case, together with all intellectual property rights therein. Provider IP includes De-Identified Data and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Services, but does not include Customer Data.

   1.8. “Subscription Period” means the period during which Customer may access and use the Services, as provided in an applicable Order Form.

   1.9. “Third-Party Products” means any third-party products described in an Order Form that are provided with or incorporated into the Services, or to which Customer is otherwise required to have access in order to use the Services.
   
   

2. SERVICES

   2.1. Provision of Access. Subject to and conditioned on Customer’s payment of the Fees and compliance with the terms and conditions of this Agreement, Provider hereby grants Customer a non-exclusive, non-sublicenseable, non-transferable (except in compliance with Section 14.9) right to access and use the software-as-a-service offering(s) described in an Order Form (the “Services”) for Customer’s internal business purposes only during the applicable Subscription Period, solely for use by Customer and its Authorized Users in accordance with the terms and conditions herein. Provider will provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services. In the event of any conflict between the terms of this Agreement and the terms of any Order Form, the terms of this Agreement will control.

   2.2. Documentation License. Subject to the terms and conditions contained in this Agreement, Provider hereby grants to Customer a non-exclusive, non-sublicenseable, non-transferable (except in compliance with Section 14.9) license to use the Documentation for Customer’s internal business purposes only during the Term, solely for use by Customer and its Authorized Users in connection with the use of the Services hereunder. All Documentation is deemed to be Provider’s Confidential Information

   2.3. Privacy Policy. Customers’ and its Authorized Users’ access to the Services is subject to Provider’s Privacy Policy, available at: https://otti.com/privacy (“Privacy Policy”), as may be updated from time to time. Customer acknowledges that it has reviewed the Privacy Policy and agrees to comply with the terms thereof, and will use all necessary efforts to cause each Authorized User to acknowledge, agree to and comply with the Privacy Policy.

   2.4. Use Restrictions. Customer will not use the Services for any purposes beyond the scope of the access rights granted in this Agreement. Without limiting the foregoing, Customer will not at any time, directly or indirectly, and will ensure that its Authorized Users do not: (a) copy, reproduce, modify, translate, or create derivative works of the Services or Documentation, in whole or in part; (b) rent, lease, lend, sell, license, sublicense, encumber, assign, transfer, distribute, publish, display or otherwise make available the Services or Documentation; (c) use the Services in a timesharing or service bureau arrangement; (d) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (e) interfere with or disrupt the functionality of the Services or otherwise access or use the Services in a manner that could reasonably damage, disable, overburden or impair Provider’s systems; (f) use the Services to create or develop any competing products or services; (g) bypass, delete, or disable any copy protection or security mechanisms associated with the Services; (h) alter, remove, obscure, or destroy any proprietary marks, legends or notices placed upon the Services or Documentation; (i) make the Services available to anyone other than the Authorized Users; or (j) use or permit the use of the Services or Documentation in any manner or for any purpose, in each case, that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, rule or regulation. Customer will use the Services in accordance with the Documentation and all acceptable use policies that may be provided by Provider from time to time.

   2.5. Suspension. Notwithstanding anything to the contrary in this Agreement, Provider may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (a) Provider reasonably determines that (i) there is a threat or attack on any Provider IP; (ii) Customer’s or any Authorized User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (iii) Customer, or any Authorized User, is using the Provider IP for fraudulent or illegal activities; (iv) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (v) Provider’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; (b) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the Services; or (c) in accordance with Section 6.4(c) (any such suspension described in subsection (a), (b), or (c), a “Service Suspension”). Provider will use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider will use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension. 
   
   

3. SUPPORT SERVICES

   3.1. Maintenance and Support. Provider will provide Customer with bug fixes, error corrections, and updates relating to the Services (the “Maintenance and Support Services”) for the duration of the Term at no additional charge beyond the Subscription Fees, as generally provided by Provider to its other customers. Maintenance and Support Services do not include any custom development, professional services, or other services outside the scope of Provider’s standard offerings. If the Parties wish to address additional support or professional services needs, they may do so under a separate written statement of work signed by both Parties.

   3.4. Technical Support. Provider will provide technical support to Customer for the Services. In connection with the provision of such technical support, Provider will (a) maintain email, Slack, or in-product chat support from 9am - 8pm ET, Monday to Friday, excluding U.S. federal holidays and other Provider-designated holidays (including the Friday following Thanksgiving in the US); and (b) maintain a staff of personnel to respond to support inquiries via at least one of these channels during the stated support hours.
   
   

4. CUSTOMER RESPONSIBILITIES 

   4.1. General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for (a) all acts and omissions of Authorized Users, and for any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer; and (b) safeguarding the confidentiality of all passwords and usernames associated with Customer and its Authorized Users’ accounts, and for any use (or misuse) of the Services by anyone using such passwords or usernames. Customer will use all reasonable efforts to make all Authorized Users aware of the provisions of this Agreement as applicable to such Authorized User’s use of the Services, and will cause Authorized Users to comply with such provisions.

   4.2. Third-Party Products. Provider may from time to time make Third-Party Product integrations available to Customer in connection with the Services, or Customer may otherwise be required to obtain and maintain Third-Party Products in order to use the Services. For purposes of this Agreement, such Third-Party Products are subject to, and Customer will be solely responsible for compliance with, the terms and conditions and applicable flow through provisions with respect to such Third-Party Products they choose to leverage in connection with the service provided. Provider will not be responsible for any liability arising from Customer’s use or misuse of any such Third-Party Products.
   
   

5. FEES AND PAYMENT 

   5.1. Fees. 

   1. Subscription Fees: In consideration of the access to and use of the Services provided under this Agreement, Customer will pay to Provider the subscription fees specified in the applicable Order Form (the “Subscription Fees”). Unless otherwise indicated in the applicable Order Form, the Subscription Fees are based on a Per Employee Per Month (PEPM) pricing model.

   2. Taxes:  Any applicable sales, use, or similar taxes required by law will be separately itemized on Customer’s invoice.

   5.2. Invoices and Payment. Provider will invoice Customer for the Fees in advance and in accordance with the terms set forth in the applicable Order Form, and Customer will make all payments of Fees hereunder in U.S. dollars on or before the due date set forth in the Order Form, without offset or deduction. 

   5.3. Disputes.  In the event of an invoice dispute, Customer will deliver a written statement to Provider no later than [10] business days prior to the date payment is due on the disputed invoice, providing a detailed description of the disputed item, which will include the disputed amount. Amounts not so disputed, including all undisputed portions of any invoice hereunder, will be deemed accepted and paid, notwithstanding disputes on other items, within the period set forth in Section 6.2. The Parties will seek to resolve all such disputes expeditiously and in good faith. If all or any portion of the disputed amount is determined to have been due to Provider, then Customer will pay the amount so due together with interest thereon at a rate which is the lower of 1.5% per month or the highest rate permitted under applicable law.

   5.4. Failure to Pay. If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies: (a) Provider may charge interest on the past due amount at the lower of (x) 1.5% per month; or (y) the highest rate permitted under applicable law, calculated daily and compounded monthly; (b) Customer will reimburse Provider for all reasonable costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (c) if such failure continues for five business days or more after Provider’s delivery of written notice thereof, Provider may suspend Customer’s and its Authorized Users’ access to the Services or any portion thereof until such amounts are paid in full.

   5.5. Modification of Fees.  Provider reserves the right to modify the Fees upon written notice at least thirty (30) days prior to the end of the then-current Subscription Period. The modified Fees will be effective at the start of the next Subscription Period, unless Customer notifies Provider of non-renewal at least thirty (30) days prior to the end of the then-current Subscription Period.

   5.6. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.

   5.7. Audit Rights and Required Records. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two years after the termination or expiration of this Agreement with respect to matters reasonably necessary for accurately determining amounts due hereunder, including the calculation of the Subscription Fees payable hereunder. Provider may, on reasonable prior notice, periodically inspect and audit Customer’s records with respect to matters covered by this Agreement, and Customer agrees to cooperate with Provider in connection with any such inspection and audit by Provider, including by promptly providing all such records reasonably requested by Provider. If such inspection and audit reveals that Customer has underpaid Provider with respect to any amounts due and payable during any Subscription Period, (a) Customer will promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 6.3; and (b) if such inspection and audit determines that Customer’s underpayment equals or exceeds 10% of the aggregate amount due and payable for the applicable period covered by the audit, Customer will reimburse Provider for all reasonable costs incurred by Provider in conducting such audit. Provider’s inspection and audit rights will extend for a period of two years after the termination or expiration of this Agreement.

6. CONFIDENTIALITY. 

   6.1. Confidential Information. From time to time during the Term, either Party (in such capacity, the “Disclosing Party”) may disclose or make available to the other Party (in such capacity, the “Receiving Party”) technical and non-technical information that is either indicated to be proprietary or confidential information of the Disclosing Party or which by its nature the Receiving Party would reasonably deem to be proprietary or confidential, regardless of any marking to such effect (including trade secrets, know-how, third-party confidential information, and other sensitive or proprietary information), in each case, whether in written, oral, graphic or electronic form (collectively, “Confidential Information”). Confidential Information does not include information that: (a) at the time of disclosure is, or subsequently becomes (through no action or inaction on the part of the Receiving Party) in the public domain; (b) is known to the Receiving Party at the time of disclosure; (c) after the date of this Agreement is rightfully obtained by the Receiving Party on a non-confidential basis from a third-party; or (d) is independently developed by the Receiving Party without use of or reference to any Confidential Information of the Disclosing Party. 

   6.2. Obligations of Non-disclosure and Non-use. The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose other than the exercise of its rights or performance of its obligations hereunder, except with the Disclosing Party’s prior written permission.  The Receiving Party will not disclose the Disclosing Party’s Confidential Information to any person or entity, except to the Receiving Party’s employees and agents who have a need to know such Confidential Information in order for the Receiving Party to exercise its rights or perform its obligations hereunder. The Receiving Party will use at least the same standard of care as it uses to protect its own information of comparable importance (and in no event less than reasonable care) to ensure that its employees and agents do not disclose or make any unauthorized use of such Confidential Information. The Receiving Party will promptly notify the Disclosing Party upon discovery of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information of the Disclosing Party to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, rule or regulation, provided, that, to the extent permitted to do so, the Receiving Party will (a) notify the Disclosing Party as soon as reasonably practicable upon becoming aware of the obligation to disclose; and (b) reasonably cooperate with the Disclosing Party in avoiding or limiting the disclosure and obtaining assurances as to confidentiality from the body to whom the Confidential Information is to be disclosed. 

   6.3. Obligations on Expiration or Termination. On expiration or termination of this Agreement, the Receiving Party will promptly return to the Disclosing Party all copies, whether in written, electronic, or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years after the expiration or termination of this Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

   6.4. Publicity. Upon request by Provider, the Parties agree to issue a mutually approved joint press release (such approval not to be unreasonably withheld, conditioned or delayed) announcing this Agreement and the decision by Customer to become a customer of Provider. Customer further agrees to participate in additional press announcements as may be reasonably requested by Provider.
   
   

7. CUSTOMER DATA 

   7.1. Ownership and License. Provider acknowledges that, as between Provider and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. All Customer Data is deemed to be Customer’s Confidential Information. Customer hereby grants to Provider a non-exclusive, worldwide, royalty-free, fully-paid, sublicensable, transferable license to use and disclose the Customer Data and perform all acts with respect to the Customer Data (a) as may be necessary for Provider to provide the Services to Customer in accordance with applicable laws; and (b) to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services, including to train, validate, test, improve or deploy Provider’s algorithms. 

   7.2. Customer Data Security. Customer’s access to the Services may require Customer or Authorized Users to provide Customer Data that includes personal information.  The types of personal information that Provider might collect to provide the Services include logon credentials, name, email address, telephone number, organization name, employment title, other data synchronized by the Customer to Otti, and user-generated content. Provider will use commercially reasonable efforts to maintain the appropriate safeguards for the protection of Customer Data, provided, that Customer acknowledges and agrees that, despite the use of commercially reasonable efforts to safeguard Customer Data, transmissions made on or through the Internet may not always be secure, and unauthorized third-parties may breach the security of Provider’s or its agents’ information systems where Customer Data is stored.  Accordingly, Provider will not be responsible for any breach in security except to the extent the breach is due to Provider’s gross negligence.  Provider will not disclose Customer Data except in accordance with the Privacy Policy or as expressly permitted by Customer.  Provider retains the right to provide notice of security breaches as necessary to comply with applicable privacy laws, rules and regulations.  In the event of a security breach, Customer, at its own cost, is responsible for notifying its employees and customers of such breach.  Customer will convey information notices as required by applicable law, gain any necessary consents from Authorized Users, and enforce and comply with any request from Authorized Users or authorities to access, rectify, and/or delete any Customer Data of Authorized Users.  Customer agrees to indemnify Provider against any suits, actions, claims, or proceedings arising from an Authorized User or other third-party with regards to these obligations.  

   7.3. De-Identified Data. Customer acknowledges that its effective use of the Services depends on Provider’s use of Customer Data, including, without limitation, Provider’s ability to aggregate the Customer Data in order to analyze use of the Services and data trends. Accordingly, notwithstanding anything to the contrary in this Agreement, Customer acknowledges that Provider may monitor Customer’s use of the Services and collect and compile De-Identified Data based on Customer Data. As between Provider and Customer, all right, title, and interest in De-Identified Data, and all intellectual property rights therein, belong to and are retained solely by Provider. Customer acknowledges and agrees that Provider may (a) make De-Identified Data publicly available in compliance with applicable law; and (b) use De-Identified Data in any manner permitted under applicable law, provided, that such De-Identified Data does not identify Customer or Customer’s Confidential Information.

   7.4. California Resident Data. This Section 8.4 only applies to the extent Customer is a “business” under the California Consumer Privacy Act, as amended, and all regulations promulgated thereunder (collectively, the “CCPA”) and Customer Data includes “personal information” (as such term is defined under the CCPA) of California residents. Provider will process such personal information for the limited and specific purpose of providing the Services and, in connection therewith, will: (a) comply with applicable obligations under the CCPA, except where otherwise required by law, and provide the same level of privacy protection as is required by the CCPA; (b) notify Customer without undue delay if Provider makes a determination that it can no longer meet its obligations under the CCPA; (c) upon reasonable written notice that Customer reasonably believes Provider is using personal information in violation of the CCPA, grant Customer the right to take reasonable and appropriate steps to help ensure that Provider uses personal information in a manner consistent with Customer’s obligations under the CCPA and stop and remediate any unauthorized use of the personal information; and (d) reasonably assist Customer in responding to requests from individuals pursuant to their rights under the CCPA. Except to the extent permitted by the CCPA, Provider will not: (i) sell the personal information or share it for cross-context behavioral advertising purposes; (ii) retain, use, or disclose the personal information outside of the direct business relationship between Provider and Customer and for any purpose other than for the specific purpose of performing the Services; or (iii) combine the personal information received from Customer with any personal information that may be collected from Provider’s separate interactions with the relevant individual(s) or from any other sources.

   7.5. Disaster Recovery and Business Continuity.  Provider’s disaster recovery and business continuity processes are governed by an internal policy, which Provider may amend at any time in its sole discretion.  Provider will use commercially reasonable efforts to help ensure the availability of Customer Data following any significant interruption to the Services.  However, the Services do not replace the need for Customer to routinely back up Customer Data.  Provider has no obligation or liability for any loss, alteration, destruction, damage, corruption, or recovery of Customer Data. 
   
   

8. INTELLECTUAL PROPERTY 

   8.1. Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP [and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products]. Nothing in this Agreement constitutes a transfer of Provider’s ownership of any intellectual property rights in, to or under the Provider IP, and Provider reserves all rights thereto.

   8.2. Feedback. Customer and its Authorized Users will report to Provider, and upon request by Provider, reasonably assist Provider in connection with correcting, any errors, problems or defects in the Services discovered by Customer. In addition, if Customer or any of its Authorized Users sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including new features or functionality relating thereto, or any comments, questions, suggestions, or similar feedback (collectively with any error, problem or defect reports submitted by Customer and its Authorized Users in accordance with this Section 9.2, “Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Provider, on behalf of itself and its employees, contractors and agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever. For the avoidance of doubt, Provider is not required to use any Feedback. All such Feedback is deemed to be Provider’s Confidential Information.

   8.3. Trademark License. Customer hereby grants to Provider, on behalf of itself and its affiliates, a limited, non-exclusive, royalty-free, fully paid-up license to use and display Customer’s trademarks, service marks, trade names, logos and other indicia of origin (“Trademarks”) for purposes of advertising and marketing the Services, including using Customer’s Trademarks to identify Customer as a customer of Provider in its customer lists and in its advertising and marketing materials. Provider will not (a) use Customer’s Trademarks in any manner that would reasonably damage or tarnish the reputation of Customer or its affiliates or the goodwill associated with such Trademarks; or (b) adopt, use or attempt to register any trademarks or trade names that are confusingly similar to Customer’s Trademarks or in such a way as to create combination marks with Customer’s Trademarks. Provider acknowledges Customer’s exclusive ownership of Customer’s Trademarks and agrees not to contest the ownership or validity of Customer’s Trademarks. Customer and/or its affiliates will retain all right, title and interest in and to Customer’s Trademarks and all goodwill associated therewith.

   8.4. Non-Assertion. During the Term, Customer will not assert, and Customer will not authorize, assist, or encourage any third party to assert, against Provider or any of its affiliates any patent infringement or other intellectual property infringement claim with respect to the Services.

   8.5. Reservation of Rights. Provider reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third-party any intellectual property rights or other right, title, or interest in or to the Provider IP.
   
   

9. TERM AND TERMINATION 

   9.1. Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect for one year (the “Initial Term”). This Agreement will automatically renew for additional, successive one year terms unless earlier terminated pursuant to this Agreement’s express provisions or either Party gives the other Party written notice of non-renewal at least 30 days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”).

   9.2. Termination. In addition to any other express termination right set forth in this Agreement:

   1. Provider may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues for more than [10] business days after Provider’s delivery of written notice thereof; or (ii) breaches any of its obligations under Section 2.4 or Section 7;

   2. either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured [30] days after the non-breaching Party provides the breaching Party with written notice of such breach; and

   3. either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

   9.3. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer will immediately discontinue use of the Provider IP and, without limiting Customer’s obligations under Section 7, Customer will delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Customer to any refund. This Section 10.3 and Sections 1, 6, 7, 8, 9, 11, 12, 13 and 14 will survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

   
   

10. LIMITED REPRESENTATIONS AND WARRANTIES

    10.1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that (a) it is duly organized and validly existing under the laws of the state or country of its incorporation and has full corporate power and authority to enter into this Agreement and to carry out the provisions hereof; (b) it has the requisite power and authority to enter into this Agreement and to perform its obligations under this Agreement; (c) the execution, delivery and performance of the Agreement and the performance of its obligations under this Agreement have been duly authorized by requisite action on the part of such Party; and (d) it will comply with all applicable laws in the performance of its obligations under this Agreement.

    10.2. Provider Warranties. Provider represents and warrants that (a) the Services will perform in accordance with the specifications set forth in the applicable Documentation; and (b) the Services, and any use of the Services in accordance with this Agreement, do not infringe or misappropriate any third-party’s intellectual property rights, including patents, copyrights, or trade secrets.

    10.3. Customer Warranties. Customer represents and warrants that: (a) Customer has all rights necessary to grant Provider the license set forth in Section 8.1 and to enable Provider to exercise its rights under such license without infringement or misappropriation of the rights of any third-party (including any privacy rights); and (b) the Customer Data is not illegal, and Provider’s receipt and processing of the Customer Data in accordance with this Agreement does not and will not violate any applicable laws or regulations.

    10.4. Warranty Disclaimers. 

    1. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, PROVIDER HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE UNDER THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, ACCURACY, QUIET ENJOYMENT, TITLE OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, INTERFERENCE WITH ENJOYMENT, COMPLETENESS, INTEGRATION, FREEDOM FROM DEFECTS OR DISABLING DEVICES OR UNINTERRUPTED USE, AND ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OF TRADE. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT CUSTOMER’S AND ANY AUTHORIZED USERS’ USE OF THE SERVICES IS AT CUSTOMER’S SOLE RISK. PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS OR ACHIEVE ANY INTENDED RESULT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PROVIDER OR ITS AUTHORIZED REPRESENTATIVE OR AGENTS WILL CREATE A WARRANTY. 
       
       

    2. ANY TRIAL SERVICES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES IN CONNECTION WITH THE TRIAL SERVICES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. 
       
       

11. INDEMNIFICATION 

    11.1 Provider Indemnification. Provider will indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by Customer resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third-party’s intellectual property rights, including patents, copyrights, or trade secrets, provided, that Customer (a) promptly notifies Provider in writing of such Third-Party Claim; (b) cooperates with Provider in connection with such Third-Party Claim; and (c) allows Provider sole authority to control the defense and any settlement of such Third-Party Claim. If such a Third-Party Claim is made or appears possible, Customer agrees to permit Provider, at Provider’s sole discretion, to (i) modify or replace the Services, or component or part thereof, to make the Services, or such component or part, as applicable, non-infringing; or (ii) obtain the right for Customer to continue use of the Services, or component or part thereof, as applicable. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. This Section 12.1 will not apply, and Provider will have no obligation, with respect to any Third-Party Claim arising from or relating to: (1) compliance with Customer specifications; (2) use of the Services in combination with data, software, hardware, equipment, technology or other products or services not supplied or expressly authorized in writing by Provider; (3) any adaptation or modification of the Services other than by Provider; (4) Customer’s failure to follow instructions provided by Provider which would have cured the cause of action; (5) use of the Services in a manner not authorized by this Agreement; (6) Customer’s continued use of a version of the Services other than the most recently released version; [or] (7) Customer Data[; or (8) Third-Party Products]. 

    11.2. Customer Indemnification. Customer will indemnify, hold harmless, and, at Provider’s option, defend Provider from and against any Losses resulting from any Third-Party Claim (a) that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third-party’s intellectual property rights; and (b) based on Customer’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, technology or other products or services not supplied or expressly authorized in writing by Provider; or (iv) adaptation or modification of the Services other than as expressly instructed by Provider, provided, that Customer may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and provided, further, that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice. 

    11.3. Sole Remedy. THIS SECTION 12 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PROVIDER’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD-PARTY.
    
    

12. LIMITATIONS OF LIABILITY

    12.1. LIMITATIONS OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (B) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (C) LOSS OF GOODWILL OR REPUTATION; (D) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (E) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO ANY CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) AND STRICT LIABILITY, EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE LIMITATIONS OF LIABILITY SET OUT IN THIS SECTION 13.1 WILL NOT APPLY TO ANY LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 12, BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER SECTION 7 OR BREACH OF LICENSE RESTRICTIONS UNDER SECTION 2.4. 

    12.2. Customer Claims Against Provider.  Customer waives any claim, suit, action, or proceeding against Provider six (6) months after the event giving rise to such claim, suit, action, or proceeding occurs.  Customer may not bring any claim, suit, action, or proceeding against Provider for any reason more than [six] months after the event giving rise to such claim, suit, action, or proceeding.

    12.3. Essential Terms. Customer agrees that the above limitations of liability together with the other provisions in this Agreement that limit liability are essential terms of this Agreement and that Provider would not be willing to grant Customer or any Authorized User the rights set forth in this Agreement but for Customer’s agreement to the above limitations of liability. 
    
    

13. MISCELLANEOUS 

    13.1. Headings; Construction. The headings set forth in this Agreement are for convenience of reference purposes only and will not affect or be deemed to affect in any way the meaning or interpretation of this Agreement or any term or provision hereof. Unless otherwise indicated, all references herein to Sections or Exhibits will be deemed to refer to Sections or Exhibits of or to this Agreement, as applicable, and all references herein to “paragraphs” or “clauses” will be deemed references to separate paragraphs or clauses of the section or subsection in which the reference occurs. The words “hereof,” “herein,” “hereby,” “herewith” and words of similar import will, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement. Unless otherwise indicated, the words “include,” “includes” and “including,” when used herein, will be deemed in each case to be followed by the words “without limitation.” When used herein, the word “extent” and the phrase “to the extent” will mean the degree to which a subject or other thing extends, and such word or phrase will not simply mean “if.” References to “$” and “dollars” are to the currency of the United States of America, and references to “U.S.” or “United States” mean and refer to the United States of America. Whenever this Agreement refers to a number of days, such number will refer to calendar days unless business days are specified. Whenever any action must be taken hereunder on or by a day that is not a business day, then such action may be validly taken on or by the next day that is a business day.

    13.2. Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (“Notices”) must be in writing and addressed to the receiving Party at the address set forth in the most recent Order Form, or to such other address as that Party may designate in writing. Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (return receipt requested, postage pre-paid). A Notice is deemed given when delivered in person, upon delivery by courier, or five business days after being deposited in the mail.  Notices related to day-to-day operations or support may be delivered by email to the email address designated in the applicable Order Form or otherwise provided by a Party for such purposes. Email notices will be deemed delivered when sent, provided no bounce-back or error message is received.

    13.3. Mutual Non-Solicit.  Subject to applicable law, during the Term and for a period of [12] months thereafter, Customer will not solicit or hire any of Provider’s employees without Provider’s prior written consent, provided, that Customer may engage in non-targeted solicitations and may hire anyone who responds to such a solicitation.

    13.4. Force Majeure. In no event will Provider be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond Provider’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

    13.5. Independent Contractor Status.  Each Party agrees that its relationship with the other Party is that of an independent contractor and that nothing in this Agreement should be construed to create a partnership, joint venture, or employer-employee relationship.  Neither Party will be responsible to the other Party and neither Party has the authority to act for, bind, or incur any debts or liabilities on behalf of the other Party.  

    13.6. Amendment and Modification; Waiver. Provider may update or modify this Agreement from time to time by posting a revised version at www.otti.com/msa, and will provide Customer with reasonable notice of any material changes. Continued use of the Services after such notice constitutes acceptance of the modified Agreement. Any changes to pricing or commercial terms will be made only through a new or amended Order Form signed by both Parties.  No waiver by either Party of any provision of this Agreement will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement: (a) no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; and (b) no single or partial exercise of any such right, remedy, power, or privilege will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

    13.7. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties will negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

    13.8. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. All disputes arising hereunder, other than disputes concerning infringement or misappropriation of intellectual property rights, shall be resolved by confidential binding arbitration, under the commercial rules of the Judicial Arbitration and Mediation Service (“JAMS”), with one arbitrator mutually agreed upon by the Parties.  If the Parties are unable to agree upon an arbitrator, JAMS will appoint the arbitrator in accordance with its rules. Any such arbitration shall occur in [Santa Clara County, California]. The decision of such arbitration shall be final and binding on the Parties.  Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder concerning infringement or misappropriation of intellectual property rights shall, at Provider’s election, be subject to the exclusive jurisdiction of the federal and state courts located [Santa Clara County, California] and the courts have jurisdiction over appeals therefrom, and Customer hereby consents to the jurisdiction of such courts and venue therein.

    13.9. Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns. 

    13.10. Export Regulation. The Services utilize software and technology that may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. Customer will not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer will comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the US. 

    13.11. US Government Rights. Each of the Documentation and the software components that constitute the Services is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212. Accordingly, if Customer is an agency of the U.S. Government or any contractor therefor, Customer only receives those rights with respect to the Services and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other U.S. Government users and their contractors.

    13.12. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of Customer, Section 2.4, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise. 

    13.13. Entire Agreement. This Agreement, together with all related Exhibits and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.