Terms of service

1. The Services

a. Generally

The Services provide a marketplace for users who desire machine learning and artificial intelligence data, models, tools, or expertise (“Customer”) with users who want to provide such data, models, tools, or expertise (“Supplier”). aiXplain, a Customer and a Supplier may also be referred to as a “Party”, or collectively the “Parties”. You may be a Customer or Supplier, depending on the Services you utilize.

b. Engaged User

As a user of the Services, aiXplain may suggest to You a Supplier(s) based on a variety of factors, including budget, years of experience, project scope and timeline, and the suggested user(s)’ reviews. You have sole discretion on whether to engage with the suggested user(s), or subsets thereof. You may also engage with any other user in the marketplace that were not suggested to You. Such users You engage with are “Engaged Users.”

c. All Users

All users will be required to provide profile details (“User Profile”) to aiXplain before any engagement with Engaged Users may be started.

d. Projects and Your Data

In engagements where You are a Customer, You shall provide to aiXplain all the parameters requested of Your project (“Project”). Your User Profile and Project parameters may be used to determine an Engaged User for You. You may also provide to aiXplain any data, models, or tools that You would like aiXplain or an Engaged User to use as part of completing Your Project. In engagements where You are a Supplier, aiXplain may use Your User Profile to determine an Engaged User for You. You may also provide to aiXplain any data, models, or tools that You would like aiXplain or an Engaged user to use as part of completing another user’s Project. In either instance, the data you provide to aiXplain is referred to as “Your Data.”

e. Project Proposal

Before engaging with an Engaged User on a Project, aiXplain will provide You a project proposal (“Project Proposal”). The Project Proposal will include final details about the Project. Your acceptance of the Project Proposal legally binds You to the terms of the Project Proposal.

2. The Engagement

a. Deliverables

A project will include deliverables (“Deliverables”), which are defined by a Customer. aiXplain may also assist Customer with the definition of Customer’s Deliverables. Customer will inspect the Deliverables within a reasonable period after delivery, such inspection not to exceed three (3) business days (“Deliverable Acceptance Period”). Deliverables will be presumed accepted unless Supplier receives written notice of rejection from Customer, explaining the basis for rejection within the Deliverable Acceptance Period (“Acceptance”).  Rejection may be based solely upon the failure of the Deliverables to materially comply with the parameters set forth in the applicable project through no fault of Customer.  All claims not made by Customer in writing as specified above and received by Supplier within the Deliverable Acceptance Period will be deemed waived.  Upon receipt of Customer’s written notice, Supplier will have the opportunity to inspect, evaluate and test the Deliverable at Customer’s premises or at any other location mutually agreed upon between the Parties.  No Deliverable shall be returned to Supplier without Supplier’s prior written consent.  No inspection or any other actions by third-parties are authorized or will be paid for by Supplier without Supplier’s prior written consent. Customer’s sole and exclusive remedy, and the entire liability of Supplier and its third-party vendors for any rightful rejection of the Deliverable during the Deliverable Acceptance Period is, at Supplier’s sole option and expense, (i) the repair or replacement of the Deliverable; or (ii) a refund equal to the purchase price of the Deliverable in lieu of any obligation to repair or replace Deliverables under this section. If Supplier reasonably determines that rejection was improper, Customer will be responsible for all expenses incurred by Supplier arising from the improper rejection.

b. Changes

Either Customer or Supplier may request changes in the Deliverables. If a party initiates a change proposal, it will do so by preparing and submitting to the other party a completed, proposed change project request for the other party’s written approval, setting forth in detail the requested changes and stating that the proposed change project request constitutes a change project request. In the event that changes to a Project cause an increase or decrease in the costs of or time required for the performance of any part of the Deliverables set forth under a Project, such Project shall be modified via the Services accordingly to reflect a mutually agreed upon adjustment in the compensation, price and/or delivery schedule, including any change in fees reflecting the inclusion, deletion, or substitution of Deliverables and Supplier’s direct costs of processing such change. Upon acceptance by both Parties of the change project request, the Parties shall undertake the changes described therein. Such change shall be reflected in an updated Project Proposal.

c. Compensation

Each Project sets forth the compensation in U.S. dollars due to Supplier for the Deliverables. Customer shall also reimburse Supplier for business expenses that are authorized in the project or approved in advance and in writing by Customer’s authorized representative.

d. Invoice

In Project Proposals where You are Customer, aiXplain shall invoice You (“Customer Invoice“) for the Deliverables accepted by You and for any authorized business expenses. Customer Invoices shall be presented to You in a schedule reflected in the Project Proposal, and shall be payable upon receipt of the Customer Invoice. Customer Invoices may include supporting documentation as may be reasonably requested by aiXplain to establish the extent to which Deliverables have been accepted by You. In the event of any dispute regarding any Customer Invoice, the disputed portion of the Customer Invoice will be payable upon resolution of the dispute. In Project Proposals where You are Supplier, You shall invoice aiXplain (“Supplier Invoice“) for the Deliverables accepted by Customer and for any authorized business expenses. Supplier Invoices shall be presented to aiXplain in accordance with the schedule set forth in the Project and undisputed invoices will be due and payable forty-five (45) days after date of the Supplier Invoice, unless otherwise stated in the applicable Project Proposal. Supplier Invoices will accurately document the Deliverables provided during the invoice period and will include such supporting documentation as may be reasonably requested by aiXplain to establish the extent to which Deliverables have been accepted by Customer.

e. Payment

Your failure to pay any undisputed amount when due will be deemed a material breach.  You shall have fifteen (15) days to cure such breach, otherwise undisputed past due amounts will be subject to the maximum legal rate of interest or one and one-half percent (1.5%) per month, whichever is less.  You shall pay all costs and expenses incurred by aiXplain as a result of non-payment or delinquent payment by You, including without limitation collection costs, interest, and reasonable attorneys’ fees. If You default on any payment obligation to aiXplain, or if aiXplain has reasonable doubt as to Your credit worthiness, aiXplain or Supplier, if applicable, in their sole discretion, may suspend production or shipment of the Deliverables. aiXplain and Supplier, if applicable, may further pursue any remedies available at law or equity available.  If You refuse to accept shipments in accordance with the Project Proposal, Supplier will further have the right, in addition to all other available rights and remedies, to suspend performance, terminate the project, withhold further deliveries, and declare all unpaid amounts for Deliverables previously delivered immediately due and payable. Such deliverables shall be considered accepted by You.

f. Taxes

All pricing excludes all sales, use, excise, value-added, and other similar taxes, charges and duties (including import and export duties).

3. Relationship of Parties and aiXplain

a. Work Made for Hire

Your relationship with aiXplain and any Engaged User in connection with this Agreement shall be that of an independent contractor and nothing in this Agreement should be construed to create a partnership, joint venture, or employer-employee relationship.  aiXplain and the Engaged User are not Your agents, and are not authorized to make any representation, contract, or commitment on Your behalf or other otherwise bind You in any manner.  Unless otherwise expressly provided herein, no provisions of this Agreement are intended or shall be construed to confer upon or give to any person or entity other than aiXplain and You any rights, remedies or other benefits under or by reason of this Agreement. Further, You recognize that the Services may be utilized by others who are competitors of Yours, or who may be engaged in activity that is competitive to You. Nothing in this Agreement, nor any Projects engaged, shall be construed as prohibiting You or any other user from engaging with any user via the Services. Similarly, Engaged Users are free to engage with other users who are competitive with You, even after Engaged Users have engaged with You.

b. Non-Solicitation

During the Agreement and a period of one year thereafter, each Party shall not directly, or indirectly through any other person, induce or attempt to induce any employee or independent contractor of the other Party or any Engaged User to leave the employ or service, as applicable, of the other Party or any Engaged User. The foregoing does not apply to creating and/or responding to a general advertisement offering employment or contractor engagement that does not specifically target the other party to this Agreement.

4. Intellectual Property

a. Work Made for Hire

Excluding Supplier Intellectual Property (defined below) and subject to Customer’s payment of all fees and expenses owed to aiXplain under this Agreement, all Deliverables developed by Supplier for Customer pursuant to a project will be deemed work made for hire, as that term is defined in the U.S. Copyright Act, and Supplier hereby assigns to Customer all right, title, and interest it may have in the Deliverables.

b. Supplier Intellectual Property

The Parties acknowledge that Supplier may use preexisting proprietary computer software, methodology, techniques, software libraries, tools, algorithms, materials, products, ideas, skills, designs, know-how, or other intellectual property, including patents and trade secrets (“Intellectual Property”) owned by Supplier.  For avoidance of doubt, Supplier may also modify or further develop such Intellectual Property in the performance of the Project. All proprietary rights to such Intellectual Property, as it existed on the Effective Date and as it may be modified or further developed solely by Supplier in the course of the Project, including patent, copyright, trademark, and trade secret rights (all of the foregoing, the “Supplier Intellectual Property”), are the sole and exclusive property of Supplier, free from any claim or retention of rights by Customer, and Customer hereby assigns to Supplier any rights Customer may have in any of the foregoing.

c. Customer License Rights

Supplier hereby grants to Customer under Intellectual Property owned or licensable by Supplier a limited, worldwide, royalty-free, nonexclusive, nontransferable, and perpetual right and license to use, distribute, sublicense, execute, display and perform any Supplier Intellectual Property that has been included by Supplier in the Deliverables, and only as part of the Deliverables.

d. Restrictions

Customer shall not copy, use, modify, or distribute any Supplier Intellectual Property except as expressly licensed in subsection (c) above. Customer shall not use the Supplier Intellectual Property separate from the Deliverables or cause or permit the modification, distribution, reverse-engineering, decompilation, disassembly, or other translation of the Supplier Intellectual Property. Customer shall not, where applicable, alter, change, or remove from the Supplier Intellectual Property any identification, including copyright and trademark notices, and shall include these markings on any copies.

e. Rights Upon Project Completion

Customer may create or develop Customer’s own source code to utilize the Deliverables; provided Customer may not cause any portion of  Supplier Intellectual Property, or any derivative thereof, to become subject to all or part of the license obligations or other intellectual property rights or restrictions of any third party, including any open source software requirements, and will not cause any portion of the Supplier Intellectual Property, or any derivative thereof to be: (i) disclosed or distributed in source code form, or (ii) be licensed to third parties for the purpose of making derivatives of such software, or (iii) be redistributed free of charge.

f. aiXplain License Rights and License Fees to You

To further develop, improve and market the Services, You hereby grant aiXplain, for the duration of this Agreement, a limited, non-revocable, world-wide, fully paid up, sub-licensable license to host, make copies of, distribute, use, and run analytics on Your Data and, to the extent licensable by You, the Deliverables as part of the Services. Further, if Your Data or the licensable Deliverables is sublicensed by aiXplain to another user via the Services, You shall collect eighty percent (80%) of fees collected via the Services for such sublicensed material, or as otherwise agreed to in writing. Such sublicense to another user shall be perpetual, and survive termination of this Agreement, and aiXplain shall be able to host, make copies of, distribute, use, and run analytics on such sublicensed Your Data after expiration of termination of this Agreement.

g. Use of Trademarks

Neither party is authorized or granted the right to use any trademarks, logos, services marks or trade names (“Marks”). Notwithstanding the foregoing, You hereby grants aiXplain a world-wide, fully paid-up license to use, display, have displayed, and distribute Your Marks on marketing collateral, on any medium, to identify You as a customer for as long as this Agreement is in force. After termination or expiration of this Agreement, aiXplain may continue using Your Marks for historical references only. For the avoidance of doubt, no new marketing collateral may be created using Your Marks after such termination or expiration of this Agreement.

h. Open Source Software

To the extent Deliverables contain free or open source software (collectively, “OSS”), such OSS may be subject to separate third party OSS licensing terms and conditions (“OSS-Terms and Conditions”).  Under such OSS-Terms and Conditions, Supplier may be required to provide the OSS-Terms and Conditions to Customer and Customer must comply with all of the applicable OSS-Terms and Conditions and fulfill all corresponding obligations of the applicable OSS-Terms and Conditions, especially if Customer further distributes, publish or provide the Deliverables through sales or other transfer to third parties.  Such obligations may include, for example, documentation obligations or obligations to provide the source code of any software in which the OSS has also been integrated.  An overview of all OSS-components contained in the Deliverables, as well as corresponding license text of the applicable OSS Terms and Conditions, are part of or are included with the Deliverables. Customer shall use commercially reasonable efforts to not combine Deliverables with any OSS which would result in the Deliverables becoming subject to the terms of an OSS license. For any software provided to Supplier by or on behalf of Customer, Customer shall disclose in writing a list of all applicable OSS-Terms and Conditions, and third party software included in such software, at the time of delivery of such software to Supplier. Customer shall indemnify Supplier for all costs, expenses and damages caused by Customer’s failure to disclose OSS-Terms and Conditions and/or third party license terms in software provided by Customer, directed by Customer or on behalf of Customer. Except in the event Customer has an indemnification obligation as provided in the preceding sentence and subject to the limitations set forth in Section 8(a), Supplier shall indemnify Customer for all costs, expenses and damages directly caused by Supplier’s failure to disclose OSS-Terms and Conditions and/or license terms for third party software that Supplier incorporates in the Deliverables.

i. No Other License or Use Right

Unless specifically provided herein, neither party hereby grants any license or use right, express or implied.

5. Confidentiality and Data Protection

a.

In the course of performing under this Agreement, a Party (a “Disclosing Party”) may provide Confidential Information to the other Party (a “Receiving Party”). For purposes of this Agreement, “Confidential Information” means all nonpublic information that is disclosed during the course of performance under this Agreement by the Disclosing Party, in writing, orally or by inspection of premises or tangible objects to the Receiving Party that is: (i) marked confidential or proprietary, or (ii) given the nature of the information or the circumstances surrounding its disclosure, reasonably should be deemed confidential.  Confidential Information includes, but is not limited to documents, drawings, models, apparatus, sketches, designs, schedules, product plans, marketing plans, technical procedures, manufacturing processes, software, prototypes, samples, methodologies, formulations, trade secrets, patent applications, know-how, experimental results, specifications and other business information.

b.

The Receiving Party will use Confidential Information only in connection with its performance under this Agreement. The Receiving Party shall use the same degree of care to avoid disclosure or use of the Confidential Information as it uses for its own confidential, proprietary and trade secret information, but in no case use less than a reasonable degree of care. The Receiving Party agrees to limit disclosure of Confidential Information to employees and employees having a specific need to know such Confidential Information in furtherance of its performance under this Agreement. Receiving Party will not disclose or permit access to Confidential Information to contract workers, consultants or contractors of Receiving Party or its Affiliates unless such persons are bound by obligations of confidentiality comparable to the terms and conditions in this section.  Receiving Party shall not without Disclosing Party’s prior written consent reverse engineer, disassemble or decompile any prototypes, software or other objects which embody the Disclosing Party’s Confidential Information to obtain access to Disclosing Party’s trade secrets and to the extent such consent is granted, Receiving Party shall receive and hold such Confidential Information subject to the terms of this section.  Receiving Party shall provide written notice to Disclosing Party without undue delay of any misuse or misappropriation of Confidential Information, which may come to the attention of Receiving Party.  The Receiving Party shall cooperate with and aid the Disclosing Party in mitigating and preventing the unauthorized use and disclosure and any furtherance thereof.

c.

The confidentiality obligations under this section to do not apply to Confidential Information that (i) is generally known, or readily ascertainable by proper means, by the public other than through a breach of this Agreement by the Receiving Party; (ii) was known by or in the possession the Receiving Party at the time of disclosure as shown by the Receiving Party’s files and records prior to the time of disclosure, otherwise than as a result of any improper act or omission of Receiving Party; (iii) is rightly received by the Receiving Party from a third party not subject to any nondisclosure obligations with respect to the Confidential Information; or (iv) is independently developed by Receiving Party without reference to the Confidential Information.

d.

If Receiving Party is requested, ordered or required by a regulatory agency or any other government authority or a court to disclose any Confidential Information, Receiving Party shall promptly notify Disclosing Party of such request, order or requirement so that Disclosing Party may have the opportunity to contest the disclosure, including seeking a protective order, or waive Receiving Party’s compliance with this Agreement.  If Receiving Party is, in the opinion of its counsel, compelled to disclose any Confidential Information, or else be liable for contempt or other penalty or be subject to claims from a third party, Receiving Party may disclose such Confidential Information without liability under this Agreement.

e.

The Confidential Information provided by the Disclosing Party shall not be copied or reproduced without the Disclosing Party’s prior written permission, except for such copies as may reasonably be required for its performance of its obligations under this Agreement or a Project. Upon the termination of this Agreement, or conclusion of a Project, Receiving Party shall, within thirty (30) days of such termination or expiration, return to the Disclosing Party (or its designees) or certify as destroyed all Confidential Information, in whatever form, including written or electronically recorded information and all copies thereof (other than copies retained in automatic back-up and archive systems), provided however that Receiving Party shall be entitled to retain one copy of the Confidential Information with its legal counsel or other appropriate corporate representative to evidence the exchange of information hereunder and in connection with legal or statutory requirements or to address issues arising out of this Agreement or a Project. All such retained copies shall remain subject to the use and disclosure restrictions in this Agreement.

f.

The Services utilize state of the art technical and organizational measures to safeguard Your information, including Your Confidential Information and Your Data. See Exhibit A for aiXplain’s Data Privacy and Data Protection Policy. By signing this Agreement, You understand and agree to aiXplain’s Data Privacy and Data Protection Policy.

6. Termination and Expiration

a. Termination for Cause

aiXplain or You may terminate this Agreement, effective upon written notice to the other (the “Defaulting Party“) if the Defaulting Party:

1. Materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within 30 days after receipt of written notice of such breach. 
2. Becomes insolvent or admits its inability to pay its debts generally as they become due.
3. Becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law, which is not fully stayed within seven (7) business days or is not dismissed or vacated within 45 days after filing.
4. Is dissolved or liquidated or takes any corporate action for such purpose. 
5. Makes a general assignment for the benefit of creditors.
6. Has 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.

b. Expiration

Unless terminated earlier in accordance with the terms hereof, this Agreement will remain in force as long as you have an active account with aiXplain. You may cancel your account at any time, but such cancellation will not take effect until you have completed all current Project Proposals.

c. Effect of Expiration of Termination

Upon termination of this Agreement, You shall discontinue use of the Services, and shall pay to aiXplain any amounts due for Deliverables completed prior to the date of termination.

7. Representations and Warranties

a.

You, as a Customer, expressly acknowledges that Supplier is not responsible or liable for: (a) products, software, services, components or systems that Supplier has not supplied; (b) products, software, services, components originating from third parties that are supplied by Supplier under or at the direction of Customer; (c) any end product or software in which the Deliverables are installed or incorporated as a component or subpart; or (d) conditions, changes, alterations, additions or applications to or for Deliverables, unless made or specifically authorized in writing by Supplier.  Supplier shall have no liability, obligation or responsibility for components and systems over which Supplier has no control.

b.

You, as a Supplier, warrant that the Project will be performed in a professional and workmanlike manner, consistent with commercially reasonable standards in the industry, and that You have and will continue to have, the full right and authority to perform the Project. For any breach of warranty under this section, Customer must provide a written claim within three (3) business days after provision of the applicable Deliverable specifying in reasonable detail the nonconformity with such warranty, and Customer’s sole and exclusive remedy and the entire liability of You for breach of warranty under this provision is, at Your sole option and expense to use commercially reasonable efforts to re-perform the identified nonconforming Deliverable. If You conclude that re-performance of these nonconforming Deliverables is impracticable for any reason, then You will refund the fees paid by Customer allocable to those nonconforming Deliverables. You shall have no liability, obligation or responsibility for components and systems over which You have no control.

c.

If You are entering in this Agreement as a corporation, You represent and warrant:

1. You have the requisite corporate power and authority to enter into this Agreement and to carry out the transactions contemplated by this Agreement; and
2. The execution, delivery and performance of this Agreement and the consummation of the transactions contemplated by this Agreement by it have been duly authorized by the requisite corporate action on its part.

d.

EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, AIXPLAIN MAKES NO OTHER WARRANTY OR REPRESENTATION TO YOU, EITHER EXPRESS OR IMPLIED, AND TO THE FULLEST EXTENT PERMITTED BY LAW, AIXPLAIN SPECIFICALLY AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ANY OTHER WARRANTIES ARISING FROM OR OUT OF ANY COURSE OF DEALING, USAGE OF TRADE, SPECIFICATION, PROPOSAL, PERFORMANCE OR CUSTOM, AND ANY STATUTORY WARRANTY ON HIDDEN OR LATENT DEFECTS.

e.

FURTHER, SUPPLIER MAKES NO WARRANTY OR REPRESENTATION TO CUSTOMER, EITHER EXPRESS OR IMPLIED, AS TO THE RESULT OF ANY MACHINE LEARNING ALGORITHM DELIVERED AS PART OF A DELIVERABLE.

8. Indemnification

a. Customer Indemnification

You, as a Customer, shall indemnify and defend aiXplain, Supplier and their employees, officers and directors (“Supplier Indemnified Parties”) from all cost, loss, damage, liability, or expenses of whatsoever nature, including reasonable attorney’s fees, which are finally awarded by a court of competent jurisdiction, arising from or in any way connected with any proceeding (legal or equitable) or claim brought or asserted by a third party against the Supplier Indemnified Parties based on, relating  to, arising from, or resulting from: (i) any use or distribution of the Deliverables by Customer other than in a manner authorized in writing by Supplier; (ii) any modification or alteration of Deliverables by Customer; or (iii) based on software, data, hardware or other materials, provided by Customer to Supplier Indemnified Parties, infringing or misappropriating third party Intellectual Property.

b. Supplier Indemnification

You, as a Supplier, shall indemnify and defend aiXplain, Customer and our employees, officers and directors (“Customer Indemnified Parties”), from all cost, loss, damage, liability, or expenses of whatsoever nature, including reasonable attorney’s fees, which are finally awarded by a court of competent jurisdiction, arising from or in any way connected with any proceeding (legal or equitable) or claim brought or asserted by a third party against the Customer Indemnified Parties based on the Deliverables, or any part thereof, as delivered by Supplier, infringing or misappropriating any third party Intellectual Property, or any claims that Customer Indemnified Parties’ distribution of the Deliverables as contemplated by this Agreement or applicable Project requires Customer Indemnified Parties to license any of Customer Indemnified Parties’ proprietary code under an open source license.  The foregoing indemnities are conditioned on and subject to: (i) The Customer Indemnified Party providing Supplier prompt written notice of any such claim, and (ii) Supplier having full control over the defense of such claim (after acknowledging and accepting such indemnification obligation), and (iii) Supplier receiving the Customer Indemnified Party’s reasonable cooperation, at the Customer Indemnified Party’s expense, in the defense thereof.  The foregoing indemnity shall not apply to any claim to the extent resulting from any modification or alteration of the Deliverables by Customer Indemnified Parties, any claim to the extent the application or use of the Deliverables by Customer Indemnified Parties not in accordance with written documentation, or any claim based on or relating to Supplier’s written instructions from Customer Indemnified Parties directing the specifics of development of the Deliverables, or any claim based on or relating software, data, hardware or other materials provided by Customer.

c. aiXplain Indemnification

aiXplain shall indemnify and defend You and Your employees, officers and directors (“Your Indemnified Parties”) from all cost, loss, damage, liability, or expenses of whatsoever nature, including reasonable attorney’s fees, which are finally awarded by a court of competent jurisdiction, arising from or in any way connected with any proceeding (legal or equitable) or claim brought or asserted by a third party (including other users of the Services) against Your Indemnified Parties based on, relating to, arising from, or resulting from Your use of the Services in accordance with all applicable documentation.

d. Indemnification Procedure

The indemnified party must notify the indemnifying party of any claim in writing within 30 days of learning of the claim.  The indemnified party agrees to provide the indemnifying party with assistance and information in the indemnifying party’s control as required to assist the indemnifying party in defending claims under this section.  The indemnifying party further agrees to reimburse the indemnified party for reasonable third party expenses incurred by the indemnified party providing such assistance.

9. Limitation of Liability

a. No Liability

IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, OR ANY LOSS OF USE, REVENUE, OR PROFIT OR DIMINUTION IN VALUE, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

b. Maximum Liability; Direct Damages

EXCEPT FOR INDEMNITY OBLIGATIONS UNDER SECTION 8, IN NO EVENT SHALL AIXPLAIN OR YOUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT AND/OR ANY PROJECT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE PURSUANT TO THE APPLICABLE PROJECT UNDER WHICH THE CLAIM ARISES OR RELATES IN THE SIX MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.  NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL AIXPLAIN’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT AND/OR ANY PROJECT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED US$100,000

10. Compliance with Laws

a.

In its performance under this Agreement and any Project, You shall comply with all applicable laws of countries and regions in which You operate, including, but not limited to, environmental, labor, child labor abuse, forced labor, working environment, anti-trust, unfair competition, consumer protection, and privacy laws and regulations.

b.

You shall comply with any export control requirements imposed by United States law and will take any actions necessary to ensure that You remain compliant with United States law with respect to transactions under this Agreement.  You will require compliance with the same condition by Your subsidiaries, contractors, service providers, agents, carriers, and freight forwarders and ensure their compliance.  You agree that neither You nor Your contractors, service providers, agents, carriers, and freight forwarders will directly or indirectly export, reexport, transfer, or release, or cause to be exported or re-exported (“Export”), any such product/technical information or materials to any destination or entity prohibited or restricted under U.S. law including but not limited to U.S. government embargoed or sanctioned countries or entities, unless it shall obtain prior to Export an authorization from the applicable U.S. government agency either in writing or as provided by applicable regulation.  The terms of this Export compliance assurance shall survive and continue in effect upon termination of the Agreement.

11. Modifications

aiXplain may modify this Agreement (including any Policies) at any time by posting a revised version via the Services or by otherwise notifying you in writing. The modified terms will become effective upon posting or, if we notify you by email, as stated in the email message. By continuing to use the Service after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is Your responsibility to check the Services regularly for modifications to this Agreement. We last modified this Agreement on the date listed at the end of this Agreement.

12. General

a. Force Majeure

To the extent that Your or aiXplain is not able to perform an obligation under this Agreement or any Project, due to fire, flood, earthquakes, acts of God, severe weather conditions, national, state or municipal emergencies, political revolutions, epidemics, pandemics, labor disputes, war or other violence, acts of terrorism, any law or order of any governmental agency, or other cause beyond that party’s reasonable control (each a “Force Majeure Event”), that party may be excused from such performance so long as such party provides the other party with prompt written notice describing the condition and takes all reasonable steps to avoid or remove such causes of nonperformance and immediately continues performance whenever and to the extent such causes are removed.  If any Force Majeure Event continues for thirty (30) days, either party may give notice in writing to the other Party to terminate this Agreement or any Project with immediate effect subject in all respects to the terms of Section 6(c).

b. Assignment; Binding Effect

You may not assign Your rights or delegate Your duties under this Agreement or any Project either in whole or in part without the prior written consent of aiXplain. Any attempted assignment or delegation without such consent will be void. This Agreement and any Projects shall be binding upon and shall inure to the benefit of the successors, assigns, executors, administrators and heirs of the parties.

c. Attorneys’ Fees

If any action is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and expenses in addition to any other relief to which such prevailing party may be entitled.

d. Jointly Drafted/Consultation with Counsel

YOU ACKNOWLEDGE THAT YOU HAVE BEEN GIVEN THE OPPORTUNITY TO CONSULT WITH COUNSEL OF YOUR CHOICE BEFORE EXECUTING THIS AGREEMENT AND ARE DOING SO WITHOUT DURESS, INTIMIDATION, OR COERCION AND WITHOUT RELIANCE UPON ANY REPRESENTATIONS, WARRANTIES OR COMMITMENTS OTHER  THAN THOSE REPRESENTATIONS, WARRANTIES OR COMMITMENTS SET FORTH IN THIS AGREEMENT.  ANY AMBIGUOUS LANGUAGE IN THIS AGREEMENT WILL NOT NECESSARILY BE CONSTRUED AGAINST ANY PARTICULAR PARTY AS THE DRAFTER OF THE LANGUAGE.

e. Choice of Law; Arbitration

This Agreement and all disputes arising out of or related thereto shall be governed by the laws of the State of California, except for its choice of law rules; the United Nations Convention on the International Sale of Goods shall not apply. You acknowledge that this Agreement evidences a transaction involving interstate commerce. You shall first endeavor to resolve through good faith negotiations any dispute arising under or related to this Agreement. If a dispute cannot be resolved through good faith negotiations within a reasonable time, You may request non-binding mediation by a mediator approved by aiXplain. If mediation fails to resolve the dispute within thirty (30) days after the first mediation session, then, upon notice by either party to the other, any and all disputes, controversies, differences, or claims arising out of or relating to this Agreement (including the formation, existence, validity, interpretation (including of this Arbitration clause), breach or termination thereof) shall be resolved exclusively through binding arbitration, except that either party shall have the right, at its option, to seek injunctive relief, under seal to maintain confidentiality to the extent permitted by law in courts located in Santa Clara County, California, or (ii) pursuant to the American Arbitration Association Commercial Rules for Emergency Measures of Protection. A request to a court of competent jurisdiction for such interim measures shall not be deemed incompatible with, or a waiver of, this agreement to arbitrate.  You agree that any ruling by the arbitration tribunal on interim measures shall be deemed to be a final award for purposes of enforcement. The arbitration proceedings shall be conducted in accordance with the Commercial Arbitration Rules of the AAA as amended from time to time, except as modified by this clause or by mutual agreement, and shall be governed by the United States Federal Arbitration Act. The arbitration shall be conducted in San Jose, California, and the language of the arbitration shall be English. The arbitrators’ award shall be final and binding. The arbitrators shall issue a written opinion setting forth the basis for the arbitrators’ decision.  The written opinion may be issued separately from the award by the arbitrators where necessary to preserve confidentiality, in the arbitrators’ discretion.  You shall bear Your own fees and costs, and one half the cost of the arbitration hearing fees, and the cost of the arbitrator, unless the arbitrators find the claims to have been frivolous or harassing, which may include an award of legal fees and costs. The arbitrators shall have no authority to award punitive damages or any other damages excluded herein, to the maximum extent permitted by law.  Except as may be required by law, You, nor Your counsel, nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of the other party.

f. Notices

All notices and correspondence pertaining to this Agreement will be delivered by electronic delivery to Your email address registered with aiXplain. For notices to aiXplain, such notice may be delivered to legal@aixplain.com.

g. Entire Agreement

This Agreement, together with any Addendums hereto, constitutes the entire agreement of the parties pertaining to the subject matter hereof and supersedes all prior and contemporaneous agreements, representations, and understandings of the parties, written or oral.  This Agreement or any Addendums hereto may be amended or modified only in a writing signed by You and aiXplain.

h. Waiver; Severability

The waiver of any breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach of the same or any provision hereof.  In the event any term or provision of this Agreement shall be determined by a court of competent jurisdiction to be void or unenforceable, such provision shall be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, shall be deemed severed and deleted from this Agreement while the remaining terms and provisions of this Agreement shall remain in full force and effect.

i. Survival of Terms

The provisions of Sections 2(a) (for any undisputed amounts unpaid for Services actually rendered), 4, 5, 8, 9, 10 and 11 shall survive termination or expiration of this Agreement and Statement of Work, provided that the parties agree and understand that this Agreement shall survive until the termination of the last Statement of Work.