Kimaru AI Inc.

Customer’s use of any Services provided by Kimaru AI Inc. (“Kimaru”) to Customer under an Order Form shall be governed by the terms and conditions set forth herein which shall supersede any terms and conditions contained in any purchase orders or other documents issued by or on behalf of Customer. Capitalized terms used but not defined herein shall have the respective meanings given to them in the applicable Order Form.

FROM TIME TO TIME, KIMARU MAY UPDATE OR MODIFY THESE TERMS IN ACCORDANCE WITH SECTION 12.11. EXCEPT AS OTHERWISE SET FORTH IN SECTION 12.11, THE UPDATED TERMS WILL BECOME EFFECTIVE AS OF THE “LAST UPDATED” DATE INDICATED ABOVE AND ANY USE OF THE SERVICES THEREAFTER CONSTITUTES CUSTOMER’S ACCEPTANCE OF THE UPDATED TERMS.

[THESE TERMS INCLUDE AN AGREEMENT TO RESOLVE DISPUTES BY ARBITRATION, WHICH MEANS THAT YOU AND KIMARU WAIVE THE RIGHT TO A TRIAL BY JURY AND AGREE TO RESOLVE ANY AND ALL DISPUTES THROUGH BINDING ARBITRATION ON AN INDIVIDUAL BASIS.]

1. Definitions

Capitalized terms below shall have the following meanings:

1.1. “Affiliate”

means an organization, person or entity that directly or indirectly controls, is controlled by, or is under common control with a party, where “control” means: (a) direct or indirect ownership of more than 50% of the voting interests of the organization; or (b) the right to direct the management or business affairs of an entity.

1.2. “Agreement”

means, collectively, these Terms together with all Order Forms.

1.3. “AI Agent”

means, in each case, an adaptive Artificial Intelligence agent Platform model based on Customer Data.

1.4. “Artificial Intelligence”

means a machine-based system that infers, from the input it receives, how to generate outputs, including the application of any mathematical model that is derived from any algorithm using any dataset.

1.5. “Background IP”

means, in respect of a Party, any and all Intellectual Property and Intellectual Property rights that: (a) was or were Generated by such Party prior to the earliest Order Form Effective Date; (b) was or were owned by such Party prior to the earliest Order Form Effective Date; (c) was or were licensed to such Party by a Third Party prior to the earliest Order Form Effective Date; or (d) is a modification, alteration or enhancement to any item described in clause (a), (b) or (c) of this definition.

1.6. “Claim”

means any actual, threatened or potential civil, criminal, administrative, regulatory, arbitral or investigative demand, allegation, action, suit, investigation or proceeding or any other claim or demand.

1.7. “Custom Feature”

means any additional feature that Customer requests that Kimaru develops pursuant to an Order Form for such development or as otherwise agreed by the Parties as part of any Implementation Services.

1.8. “Customer”

means the person or entity indicated as the customer on an Order Form to which the Services are provided under such Order Form.

1.9. “Customer Data”

means any data that is uploaded to the Platform, is analyzed by or is Generated through the use of the Services, including Interaction Data.

1.10. “Customer System”

means any information technology system of Customer, including hardware and software, used to access or otherwise realize the benefit of the Platform or Services.

1.11. “Data Processing Agreement”

means the Kimaru data processing agreement attached hereto as Appendix I.

1.12. “Documentation”

means the current technical and user documentation for the Platform, available upon request. The Documentation may be modified from time to time in Kimaru’s sole discretion.

1.13. “Fees”

means, collectively, the fees set out in an Order Form.

1.14. “Generate”

means to create, author, develop, invent or otherwise generate.

1.15. “Generative AI”

means any type of Artificial Intelligence or machine learning technology that can be used to Generate output, including based on prompts or inputs.

1.16. “Implementation Services”

means the services to be performed by Kimaru in connection with integration of the Services with Customer Systems.

1.17. “Intellectual Property”

means all algorithms, application programming interfaces (APIs), apparatus, concepts, Confidential Information, data, databases and data collections, deliverables, designs, diagrams, documentation, drawings, flow charts, formulae, ideas and inventions (whether or not patentable or reduced to practice), know-how, materials, marketing and development plans, marks (including brand names, product names, logos and slogans), methods, models, procedures, processes, schematics, software code (in any form including source code and executable or object code), specifications, subroutines, techniques, tools, uniform resource identifiers, user interfaces, works of authorship, and other forms of technology.

1.18. “Interaction”

means interaction between an individual and an AI Agent, in each case handled through the Platform.

1.19. “Interaction Data”

means the data and information collected or Generated by the Platform when the Platform is used for Interactions, including Output.

1.20. “Law”

means any declaration, decree, directive, legislative enactment, order, common law, ordinance, regulation, rule, guideline, guidance or other binding restriction or requirement of or by any governmental authority, as may be amended or replaced from time to time.

1.21. “Losses”

means any and all damages, fines, penalties, deficiencies, losses, liabilities (including settlements and judgments), costs and expenses (including interest, court costs, reasonable fees and expenses of lawyers, accountants and other experts and professionals or other reasonable fees and expenses of litigation or other proceedings or of any Claim, default or assessment).

1.22. “Order Form”

means any order form, subscription agreement, statement of work or similar purchasing document between the Parties, which the Parties may agree to and execute from time to time and which incorporates by reference these Terms.

1.23. “Order Form Term”

means the duration of an Order Form set forth therein.

1.24. “Output”

means the Interaction information, data, analytics, feedback and other output Generated by the Platform, including the output of any AI Agent.

1.25. “Party”

means each of Kimaru and Customer, and together they are the “Parties”.

1.26. “Platform”

means Kimaru’s proprietary artificial intelligence-powered retail supply chain management platform, as further described online at kimaru.ai, together with the related services and those capabilities all as defined within the Documentation.

1.27. “Professional Services”

means any custom development or other professional or consulting services, other than Implementation Services, provided by Kimaru to Customer pursuant to an Order Form.

1.28. “Professional Services Fee”

means the amount, if any, specified as the “Professional Service Fee” in the Order Form.

1.29. “Services”

means, collectively, the services to be provided pursuant to an Order Form including provision of the Platform and use of any Platform application programming interface made available to Customer by Kimaru from time to time.

1.30. “Terms”

means this license agreement pursuant to which Kimaru provides the Services and which governs each Order Form, subject to Section 2.1.

1.31. “Third Party”

means any person or entity other than a Party or any Affiliate of a Party.

1.32. “Trial Period”

means the duration of Trial Services set forth in an applicable Order Form.

1.33. “Trial Services”

means the Services provided under an Order Form for Trial Services which are subject to the terms set forth in Section 2.2.

1.34. “User”

means any personnel of Customer authorized by Customer to use the Platform in accordance with this Agreement and who has been supplied User Credentials by Customer pursuant to Section 3.7, regardless of whether the individual is actively using the Platform at any given time.

2. Services; License.

2.1. Order Forms.

Customer’s purchase of the Services and use of the Platform is subject to the terms of this Agreement. In the event of a conflict between these Terms and any Order Form, these Terms shall govern unless such Order Form specifically states that such term within such Order Form supersedes these Terms. Any terms which may appear as pre-printed language or otherwise be on, attached to or inserted within any order form, quote, invoice, bill or other form or document issued by Customer shall be of no force or effect even if such form or document is accepted or executed by Kimaru. Customer and Kimaru may amend any Order Form upon mutual written agreement, which shall take the form of a written addendum or amendment to such Order Form signed by both Parties. Any such addendum or amendment shall be governed by the terms of this Agreement.

2.2. Trial Period Terms.

(a) During any Trial Period, NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS-IS” AND “AS-AVAILABLE”, WITHOUT WARRANTIES OF ANY KIND.

(b) Trial Services are available only for the duration of the applicable Trial Period and are subject to the terms and conditions specified in the applicable Order Form. Trial Services shall automatically renew as paid Services as set forth in an applicable Order Form. If no renewal term is specified for such renewal, then the Order Form shall renew for an additional twelve (12) month period, and thereafter renew for successive twelve (12) month periods in accordance with these Terms.

(c) Except as set forth above in this Section 2.2 or as otherwise set forth in this Agreement, the Services during the Trial Period are subject to all other terms and conditions of this Agreement.

2.3. General License.

Subject to these Terms and payment of all Fees and any other amounts due hereunder, Kimaru hereby grants to Customer, during the Order Form Term, a limited, non-exclusive, non-transferable license, without the right to sublicense, to have Users access and use: (a) the Services; (b) the Professional Services; and (c) any Custom Feature as set forth in Section 3.5, via the Platform in accordance with the Documentation, including to Generate, use, reproduce and display Output, solely for Customer’s internal business purposes and not for the benefit of any other person or entity.

2.4. Copies.

Customer may make a reasonable number of copies of the Documentation during the Order Form Term solely for back up or disaster recovery purposes. Customer shall reproduce all copyright, trademark, trade secret and other proprietary notices in such copies. Customer may not make a copy of any aspect of the Platform other than the Documentation. Upon termination of this Agreement, Customer shall promptly destroy or return to Kimaru, at Kimaru’s election, all copies of the Documentation.

2.5. General Use Restrictions.

Customer shall not, directly or indirectly, and shall not allow any Affiliate, User or other Third Party to: (a) decompile, disassemble, translate, reverse engineer or otherwise attempt to derive source code or any underlying algorithm or idea from the Platform; (b) use any Output for purposes of training, validation of, testing of, or any other development of, any Artificial Intelligence or any other machine learning technologies; (c) circumvent or violate any technical restriction of the Platform; (d) make any copies of the Platform or any portion thereof or any Documentation, except as otherwise authorized herein; (e) disclose the Platform or any portion thereof, or any Documentation to any Third Party; (f) sublicense, rent, lease, lend or host the Platform to or for any other Third Party; (g) attempt to unlock or bypass any initialization system, encryption method or copy protection devices in the Platform; (h) alter, remove or obscure any patent, trademark or copyright notice in the Platform or Documentation; (i) use components of the Platform independent of the Platform; (j) post, send, process or store infringing, obscene, threatening, libelous or otherwise unlawful or tortious material, including violating any Third Party’s rights using the Platform; (k) use the Platform to perform any activity which does or may violate any applicable Law, or is or may be, directly or indirectly, harmful, threatening, abusive, harassing, tortious or defamatory, or to perform any activity which violates the rights of any Third Party; (l) use any Confidential Information of Kimaru to contest the validity of any Intellectual Property of Kimaru; (m) publish or disclose to any third party any evaluation of the Platform; or (n) interfere with or disrupt the integrity or performance of the Platform.

2.6. Third Party Products.

Customer acknowledges and agrees that the Services operate on or with or using application programming interfaces (APIs) or other software or services operated or provided by Third Parties (“Third Party Services”). Kimaru is not responsible for the operation of any Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof (collectively, “Third Party Notices”). Kimaru does not make any representations or warranties with respect to Third Party Services or any Third Party service provider. Any exchange of data or other interaction between Customer and a Third Party provider is solely between Customer and such Third Party service provider and is governed by the applicable Third Party Notice. The Third Party Notices may include important licensing and warranty information and disclaimers. In the event of conflict between any Third Party Notice and other portions of this Agreement, the Third Party Notices will take precedence, but solely as to the Third Party Service to which such Third Party Notice relates. Except to the extent expressly provided otherwise in the Third Party Notices, Customer acknowledges that the Third Party Services are licensed for use solely with the Platform and may not be used on a standalone basis or with any other product of a Third Party and that Sections 7.1 and 9.2 of these Terms shall not be applicable to any Third Party Service. KIMARU MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH REGARD TO ANY THIRD PARTY PRODUCTS. KIMARU EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, QUALITY OF INFORMATION, QUIET ENJOYMENT, OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO ANY THIRD PARTY PRODUCT. CUSTOMER SHOULD CONSULT THE RESPECTIVE VENDORS OR MANUFACTURERS OF EACH THIRD PARTY PRODUCT FOR WARRANTY AND PERFORMANCE INFORMATION.

2.7. Affiliates.

Customer and Kimaru may mutually agree to allow the use of the Platform and Services by an Affiliate of Customer pursuant to this Agreement (including these Terms). Any such use shall be mutually agreed upon and documented in an addendum or amendment hereto executed by a duly authorized representative of Customer, Kimaru and such Affiliate. In such case, Customer and Affiliate shall be jointly and severally liable for all obligations hereunder and a breach by Customer or Affiliate shall be deemed to be a breach of this Agreement by Customer.

2.8. AI Terms; AI Agents; Output.

(a) Certain Output may be Generated by the Services, including via the AI Agent, using Generative AI. Generative AI sometimes produces output that is unpredictable, random, inaccurate, incorrect or inapplicable (“AI Hallucinations”). Accordingly, such output, including Output Generated as part of an Interaction, may include such errors and biases, and AI Agents may fail to record certain information or act correctly on the basis of such information. Kimaru employs commercially reasonable measures designed to reduce the risk of AI Hallucinations and bias.

(b) Notwithstanding the training Kimaru provides to Customer as part of the Implementation Services, Customer acknowledges and agrees that: (i) Customer is solely responsible for configuring and training each AI Agent for Customer’s purposes; (ii) Customer is responsible for verifying the training and performance of each AI Agent, including the accuracy and appropriateness of any Output before relying on or promoting the reliance upon any such Output; (iii) relying upon any Output without a human operator’s review or intervention could result in harm, including legal, financial and physical harm; (iv) Output may resemble, be substantially similar to or identical to Output Generated by other users of the Services who provide similar input, including configuring AI Agents in a similar manner; (v) any right, title or interest of Customer in Output Generated through Customer’s use of the Services shall not be interpreted to limit the rights of other users of the Services; and (vi) Customer obtains no right, title or interest in or to output Generated through another user’s use of the Services, regardless of any level of similarity. Kimaru cannot control and has no duty to take any action regarding how Customer or Customer’s individual clients may interpret, rely on or use any Output or what actions Customer or such individual may take as a result of having been exposed to Output.

3. Responsibilities of the Parties.

3.1. Delivery of Services.

Kimaru will use commercially reasonable efforts to provide Customer with access to the Platform and enable the use of the Services subject to the applicable Order Form on the applicable Order Form Effective Date.

3.2. Implementation Services.

Kimaru will provide Implementation Services according to the mutually agreed upon implementation plan. Notwithstanding the foregoing, in the even that Kimaru determines, in its discretion, that Customer’s requirements or the nature of the Customer Systems necessitate resources in excess of Kimaru’s customary offering, Customer agrees to enter into an Order Form for such additional resources.

3.3. Professional Services.

From time to time Customer may request that Kimaru provide certain Professional Services in addition to any agreed upon scope of Services. The terms applicable to such Professional Services will be set forth in an Order Form for Professional Services. Customer will provide Kimaru with: (a) reasonable assistance to facilitate scheduling and performance of Professional Services; (b) information required to perform the Professional Services; and (c) an engagement manager to help ensure effective delivery of the Professional Services. Professional Services are accepted when delivered unless otherwise set forth in the Order Form. Kimaru may engage any qualified subcontractor to provide Professional Services.

3.4. Support.

As part of the Services, Kimaru will provide to Customer technical support, including training sufficient for Customer to train or enable Users to utilize the Platform, during the applicable Order Form Term in accordance with Kimaru’s generally applicable support practices applicable at the time of the performance of such services. During the applicable Order Form Term, Kimaru may update any Service as part of such support, as long as Kimaru does not materially and adversely change the performance thereof. Additional support and Customer training may be made available pursuant to a Professional Services Order Form.

3.5. Custom Features; Professional Services.

(a) Customer may from time-to-time request that Kimaru develop a Custom Feature. In such case, the Parties will mutually agree upon the terms for development of the Custom Feature which shall be set forth in a Professional Services Order Form hereunder executed by both Parties which shall include the payment of Professional Services Fees for the Professional Services required to develop such Custom Feature. Upon acceptance of such Custom Feature, Customer shall be licensed to use such Custom Feature in accordance with the license set forth in Section 2.3.

(b) Except as expressly set forth in the applicable Order Form for Professional Services, Kimaru shall be the sole owner of all right, title and interest in and to any Custom Feature and any improvement to any Service, including any modification, alteration or enhancement made as any Custom Feature that may be developed in accordance with this Section 3.5. Customer hereby assigns to Kimaru all of Customer’s right, title and interest in and to any Intellectual Property in any Custom Feature.

3.6. Equipment.

Customer is responsible for all hardware and software required in order to access and use the Platform and the Services, including Internet connectivity.

3.7. User Credentials; Access Privileges.

Upon Customer’s request, Kimaru shall authorize a Customer account manager to create and issue to each User, a unique username and password for access to and use of the Platform or enable single sign-on or login using Third Party services credentials, and assign to such User an applicable set of privileges with respect to the Platform and configuration of AI Agents (in each case with respect to a User, “User Credentials”). Customer and its Users are responsible for maintaining the confidentiality of all User Credentials and shall ensure that each User uses only such User’s own User Credentials, and does not share such User Credentials with any Third Party or other employee, agent or contractor of Customer. Customer is responsible for all use of such User Credentials and will immediately notify Kimaru of any unauthorized use of any User Credentials. Kimaru shall have no liability for any loss or damage arising from Customer’s failure to comply with the terms of this Section 3.7.

3.8. Customer Personnel.

Customer shall ensure all Customer personnel necessary for the provision of Trial Services or Professional Services are reasonably available to Kimaru. The unavailability of Customer personnel due to ordinary illness shall not be an event of force majeure as set forth in Section 12.2 and shall not relieve Customer of any of its obligations hereunder.

3.9. Customer Systems.

Kimaru may from time-to-time be required to access Customer Systems including in connection with Implementation Services, Professional Services and support services, and Customer shall provide Kimaru with such access and assistance as Kimaru may reasonably require in connection with the foregoing. Kimaru will comply with the applicable Customer Systems access policies provided to Kimaru in advance.

3.10. Interactions.

Customer acknowledges and agrees that as part of the ordinary functioning of the Platform, the counterparty on any Interaction will be notified that the Interaction is being recorded and includes the use of Generative AI.

3.11. Data Processing Agreement.

In connection with Services that involve the use or disclosure of personally identifiable information, the Parties agree that the terms of the Data Processing Agreement are incorporated by reference into and form part of this Agreement. In the event of a conflict between these Terms and the terms of the Data Processing Agreement, the terms of the Data Processing Agreement shall govern with respect to the use or disclosure of personally identifiable information.

4. Fees; Taxes.

4.1. Fees.

During the Order Form Term, Customer shall pay to Kimaru the Fees set forth in each Order Form or as otherwise invoiced, and reimburse Kimaru for any costs or expenses associated with the Professional Services, subject to Kimaru’s compliance with Customer’s policies for such costs or expenses that have been provided to Kimaru in advance. Fees and reimbursement of costs or expenses are due and payable within ten (10) days from the date of Kimaru’s invoice or as otherwise set forth in the Order Form. Customer will pay a late charge of one percent (1%) per month or the highest amount permitted by applicable Law, whichever is less, on any Fees or costs or expenses not paid by the due date. Unless otherwise identified in an Order Form, all Fees are stated in, and all Fees and reimbursement of costs or expenses must be paid in, United States dollars. In the event that Customer fails to pay any Fees or other amount payable to Kimaru hereunder when due, Kimaru may immediately suspend the provision of Services until Customer has paid all past-due and outstanding amounts in full.

4.2. Adjustments.

The Fees are fixed for the duration of the initial Order Form Term and are subject to change for any subsequent renewal of such Order Form. Kimaru shall provide Customer at least sixty (60) days’ prior notice of any change to the Fees for any such renewal.

4.3. Taxes.

The Fees do not include do not include additional charges that may apply in a particular jurisdiction including applicable taxes or other regulatory fees. Customer will pay all international, national, federal, state, provincial or local sales, use, value added, goods and services, property, excise, or other taxes imposed on or with respect to this Agreement, except for any taxes imposed on the income of Kimaru. If any sales, use, value added, goods and services, property, excise, or other taxes (except for taxes based on Kimaru’s net income) are assessed against or required to be collected in connection with the Services, Kimaru will include such amounts on each invoice.

4.4. Payment Processor.

Kimaru may use Third Party payment processor services to bill or facilitate processing of Fees. By submitting payment account information, Customer grants to Kimaru and its payment processor the right to store and process Customer’s information with the third-party payment service, which may change from time to time. Customer agrees that during any Order Form Term, Kimaru may charge and the payment processor may pay to Kimaru any periodic Fees as they become due. Any payment processor services will be subject to the payment processor’s separate terms and conditions in addition to this Agreement. In no event will Kimaru be responsible for any action or omission of any payment processor, including as to whether any payment is sent or received or sent or received to a party other than the intended party.

5. Intellectual Property.

5.1. Output.

Except for any existing right, title or interest that Kimaru has in and to any Background IP of Kimaru contained or utilized in any Output, and subject to Customer’s compliance with the terms of this Agreement, including payment of all Fees, Kimaru hereby assigns to Customer all right, title and interest in and to any Intellectual Property in any Output.

5.2. No Sale.

The license granted hereunder and any grant of rights to the Platform is not a sale of the Platform or any portion thereof. Kimaru retains all right, title and interest in and to the Platform, including any modifications, alterations or enhancements thereto.

5.3. No Implied Licenses.

Except for the express license set forth in these Terms, these Terms do not grant to Customer any license, by implication, estoppel or otherwise.

5.4. No Assignment.

Except for the express assignments and licenses set forth in these Terms, these Terms do not transfer any right, title or interest in any Intellectual Property right of either Party to the other Party. This is not a work made-for-hire agreement (as that term is defined in Section 101 of Title 17 of the United States Code).

5.5. Feedback.

If Customer elects to provide Kimaru with any suggestion, idea for improvement, recommendation or other feedback (collectively, “Feedback”), Kimaru may use such Feedback without any restriction or payment, including to improve the Platform and Kimaru shall own all rights, title and interest in and to any such Feedback.

5.6. Improvement.

Kimaru has the right to collect and analyze data relating to the provision, use or performance of any Service other than Customer Data (except as set out in Section 5.8), and Kimaru may: (a) use such data to improve any Service or for other development, diagnostic or corrective purposes in connection with any Service or to develop other Kimaru offerings; (b) disclose such data solely in aggregate or de-identified form; and (c) use any such improvement or make any such disclosure without limitation hereunder.

5.7. No Challenge.

Customer shall not, and shall ensure that each Affiliate of Customer shall not, make any claim against Kimaru, any Affiliate of Kimaru or any of its or their direct or indirect customers or licensees for infringement of any patent or other Intellectual Property right owned by Customer or any related entity of Customer relating to Intellectual Property developed by or for Customer using the Platform.

5.8. Customer Data.

(a) As between the Parties, Customer is the sole and exclusive owner of Customer Data. Customer hereby grants to Kimaru a non-exclusive, irrevocable, royalty-free, fully paid, worldwide license to:

i. process, store and otherwise use Customer Data for the purposes of providing the Services during the Order Form Term including through combination with the data provided by or collected from other customers of Kimaru;

ii. process, store and otherwise use analytical output processed from metadata relating to Customer Data for any purpose perpetually;

iii. aggregate and de-identify Interaction Data in accordance with applicable data protection Laws and the Data Processing Agreement (“Aggregated Data”). Aggregated Data shall be the sole and exclusive property of Kimaru and shall constitute Background IP of Kimaru; and

iv. improve the Platform through application of Artificial Intelligence, tuning or any enhancement, modification, derivative or other improvement to the Platform in connection with the provision of any Service (“AI Improvements”). Customer agrees that, in the ordinary course of Artificial Intelligence development, as part of such AI Improvements, Kimaru may extract and retain patterns from Customer Data processed in connection with this Agreement which do not identify Customer and do not enable reconstruction of the Customer Data (“Patterns”) and use, copy, prepare derivative works of or otherwise exploit any such Pattern to continue to improve the Platform, or successor product or service, in perpetuity. Any AI Improvement arising from this Agreement shall be the sole and exclusive property of Kimaru and shall constitute part Background IP of Kimaru.

(b) Customer shall be solely responsible for the accuracy, quality, integrity, legality, appropriation of and the right to use any Customer Data hereunder. Customer shall be responsible for obtaining any consent or other right necessary to process, store or otherwise use any Customer Data.

(c) Customer may request the deletion of Customer Data at any time and Kimaru shall promptly comply with any such request. Customer acknowledges and agrees that any inability of Kimaru to provide any Service as a result of the deletion of Customer Data in accordance with this Section 5.8(c) shall not be a breach of this Agreement and shall not entitle Customer to terminate this Agreement or to any other remedy.

(d) Customer acknowledges and agrees that while the Platform is designed to retain all Customer Data and to display Output to Users during an Order Form Term, the Platform is not a storage service and Customer, not Kimaru, is solely responsible for backing up all Customer Data and any Output.

6. Confidentiality.

6.1. Confidential Information.

Each Party may from time to time disclose confidential information to the other Party in connection with this Agreement, whether or not marked as such, and whether disclosed in writing, orally, visually or otherwise (“Confidential Information”). Customer Data and Output shall be deemed to be the Confidential Information of Customer. The Platform, any Feedback and any information regarding Fees shall each be deemed to be Confidential Information of Kimaru. Notwithstanding the foregoing, Confidential Information does not include any information that: (a) is or becomes available to the public other than through a breach of this Agreement by the receiving Party; (b) is received by the receiving Party from a Third Party not subject to any confidentiality obligation in favor of the disclosing Party; or (c) is independently developed by the receiving Party without access or reference to Confidential Information of the disclosing Party.

6.2. Obligations.

The receiving Party agrees to safeguard all Confidential Information of the disclosing Party with at least the same degree of care (which in no event shall be less than reasonable care) as the receiving Party uses to protect its own Confidential Information. The receiving Party shall not use any Confidential Information of the disclosing Party for any purpose other than in furtherance of this Agreement and shall not disclose any Confidential Information of the disclosing Party except to those of its employees, consultants or representatives with a “need to know” such Confidential Information for purposes of fulfilling its obligations under this Agreement and who are bound by confidentiality obligations at least as stringent as those set forth herein. The receiving Party shall be responsible for any action or omission by any such employee, consultant or other representative as if made by the receiving Party. The receiving Party shall promptly notify the disclosing Party of any breach of this Section 6.2.

6.3. Permitted Disclosures.

Notwithstanding Section 6.2, the receiving Party may disclose Confidential Information of the disclosing Party to the extent that the receiving Party is required or requested to do so pursuant to applicable Law by any governmental authority or rules of a stock exchange; provided, however, that prior to any such disclosure, the receiving Party shall: (a) assert the confidential nature of the Confidential Information of the disclosing Party to such governmental authority or stock exchange; (b) promptly notify the disclosing Party of the governmental authority’s requirement or request to disclose; and (c) cooperate with the disclosing Party in contesting any such disclosure or obtaining a protective order, confidential treatment or the like at the expense of the disclosing Party.

6.4. Breach.

Notwithstanding any other provision of this Agreement, each Party acknowledges that any use of Confidential Information of the disclosing Party in a manner inconsistent with this Agreement, or Customer’s use of the Platform in breach of this Agreement, may cause the other Party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, each Party agrees that, in addition to any other remedy to which the other Party may be entitled hereunder, at law or in equity, the other Party shall be entitled to injunctive relief, without the posting of any bond and without proof of actual damages, to restrain such use in addition to any other applicable remedy available under applicable Law.

7. Warranties.

7.1. Kimaru Warranties.

Kimaru represents and warrants to Customer that the Platform and the Services shall perform materially in accordance with the Documentation and any Professional Services shall be performed in a professional and workmanlike manner in accordance with applicable industry standards. As Customer’s sole and exclusive remedy in the event of a breach of such warranty, Kimaru shall use commercially reasonable efforts to correct any failure to comply with such warranty.

7.2. Customer Warranties.

Customer represents, warrants and covenants to Kimaru that:

(a) Customer has the right to provide the Customer Data to Kimaru and to permit Kimaru to access any systems of Customer that host any Customer Data, for the purposes of this Agreement; and

(b) Customer will comply with all applicable Laws in connection with its use of the Platform or any Service or Output, including any applicable securities Laws, U.S. Export Administration Regulations, anti-corruption Laws and U.S. embargoes, as well as any Laws of any jurisdiction outside of the United States where the Platform or any Service or Output is used.

7.3. Disclaimer.

KIMARU DOES NOT WARRANT THAT THE PLATFORM OR SERVICES WILL OPERATE ERROR-FREE, WITHOUT INTERRUPTION, OR THAT KIMARU WILL CORRECT ANY ERROR. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 7, THE PLATFORM AND SERVICES ARE PROVIDED “AS IS” AND “AS-AVAILABLE”. KIMARU AND ITS THIRD PARTY SUPPLIERS DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PLATFORM OR SERVICES FURNISHED UNDER THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, RELIABILITY, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE.

8. Limitation of Liability.

8.1.

SUBJECT TO SECTION 8.3, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF DATA, PROFITS, REVENUES OR USE OF THE SERVICE, OR FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, MULTIPLE, CONSEQUENTIAL, PUNITIVE OR OTHER INDIRECT DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE SERVICES OR THE PLATFORM.

8.2.

SUBJECT TO SECTION 8.3, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION, FOR AN AMOUNT IN EXCESS OF THE AGGREGATE FEES PAID TO KIMARU IN THE THREE (3) MONTHS PRECEDING THE EVENTS GIVING RISE TO THE MOST RECENT CLAIM UNDER THE ORDER FORM UNDER WHICH THE CLAIM AROSE.

8.3.

The limitations and exculpations of liability set forth in Sections 8.1 and 8.2 shall not apply in respect of: (a) any breach of Sections 2 or 6; (b) a Party’s indemnification obligations set forth in Section 9; (c) any Fees owed hereunder; or (d) a Party’s infringement of the other Party’s Intellectual Property rights, but shall otherwise apply to the maximum extent permitted by applicable Law. EACH PARTY ACKNOWLEDGES THAT THE LIMITATIONS AND EXCULPATIONS OF LIABILITY SET FORTH IN THIS SECTION 8 ARE AN ESSENTIAL BASIS OF THE BARGAIN AND THAT, ABSENT SUCH LIMITATIONS AND EXCULPATIONS, THE FEES WOULD HAVE NECESSARILY BEEN MUCH HIGHER.

8.4.

ANY CLAIM BY CUSTOMER SHALL BE BROUGHT WITHIN TWELVE (12) MONTHS FOLLOWING THE EVENTS GIVING RISE TO SUCH CLAIM.

9. Indemnification.

9.1. Customer Indemnification.

Subject to Section 9.4, Customer hereby agrees to defend, indemnify and hold harmless Kimaru and its Affiliates and their respective principals, partners, members, managers, trustees, beneficiaries, directors, officers, stockholders, representatives, and the successors and assigns of each of the foregoing, for, from and against any and all Losses suffered or incurred by any of them directly or indirectly arising from or in connection with: (a) any death or bodily injury of any person (including any Customer employee, agent or representative); or (b) Third Party Claims arising from or related to: (i) any failure by Customer to comply with any applicable Laws; (ii) any violation of privacy rights of any Third Party, whether by or on behalf of Customer; (iii) any gross negligence or intentional misconduct of Customer; (iv) use of any Service by Customer in combination with products or software not provided by Kimaru; (v) any modification, alteration or enhancement of any Service not created by or on behalf of Kimaru with Kimaru’s prior written consent; or (vi) the inaccuracy, untruthfulness or breach of any representation, warranty or covenant set forth in Section 7.2.

9.2. Kimaru Indemnification.

Subject to Sections 9.3 and 9.4, Kimaru hereby agrees to defend, indemnify and hold harmless Customer and its Affiliates and their respective principals, partners, members, managers, trustees, beneficiaries, directors, officers, stockholders, representatives, and the successors and assigns of each of the foregoing, for, from and against any and all Losses suffered or incurred by any of them directly or indirectly arising from or in connection with Third Party Claims arising from or related to: (a) the gross negligence or intentional misconduct of Kimaru; or (b) the Platform infringing a United States patent, copyright, trademark or trade secret of such Third Party. If Customer’s use of the Platform is, or in Kimaru’s opinion is likely to be, found to infringe, Kimaru may, in its sole discretion: (i) modify the infringing element of the Platform to be non-infringing without materially degrading the functionality of the Platform; (ii) procure for Customer the right to continue using the Platform; or (iii) terminate the affected Order Form and refund to Customer the pro rata portion of any prepaid Fees associated with the Platform for any unused portion of the applicable Order Form Term. THIS SECTION 9.2 SETS FORTH KIMARU’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT BY THE PLATFORM OR SERVICES.

9.3. Exceptions.

The defense and indemnification obligations of Kimaru shall not apply to the extent the alleged infringement arises out of: (a) use of any Service by Customer in combination with products or software not provided by Kimaru; (b) any modification, alteration or enhancement of any Service not created by or on behalf of Kimaru with Kimaru’s prior written consent; (c) failure to implement the latest release of the Platform, or (d) any matter indemnified by Customer in Section 9.1.

9.4. Indemnity Conditions.

As a condition to the indemnity obligations of a Party hereunder, the indemnified party shall: (a) provide prompt notice of any indemnifiable claim; (b) tender the defense of such claim to the indemnifying Party at the indemnifying Party’s request; (c) cooperate with the indemnifying Party in the defense of such claim at the indemnifying Party’s expense; and (d) not settle or compromise any such claim without the consent of the indemnifying Party. Customer will immediately inform Kimaru as soon as Customer becomes aware of any threatened or actual Claim by any Third Party relating to the Platform or Services. The indemnifying Party shall pay all Losses incurred by the indemnified Party in connection with any such Claim.

10. Term; Termination; Suspension.

10.1. Term; Order Form Renewal.

This Agreement commences on the Order Form Effective Date of the first Order Form and continues until the date that is the later of: (a) the one (1) year anniversary of the Order Form Effective Date for the first Order Form; or (b) such later date as there is no then-active Order Form (the “Term”). Except as otherwise set forth in an Order Form, each Order Form shall automatically renew for successive periods equal in length to the initial Order Form Term unless either Party provides notice of non-renewal to the other Party at least thirty (30) days prior to the end of the then-current Order Form Term. Kimaru may enable Customer to provide such non-renewal notice via the Platform, in which case such notice shall be in lieu of the requirements set forth in Section 12.1.

10.2. Termination.

This Agreement may be terminated by either Party if the other Party materially breaches this Agreement and does not cure such breach within thirty (30) days after notice of such breach, effective as of the date set forth in such notice.

10.3. Suspension.

Notwithstanding anything to the contrary in these Terms or any Order Form, Kimaru may suspend Customer’s or any Users’ access to, or use of, the Services, without liability to Customer for such suspension, if Kimaru reasonably believes that: (a) there is a significant threat to the functionality, security, integrity, or availability of the Services or any content, data, or applications in the Services; or (b) Customer or any User is accessing or using the Services to commit an illegal act or in violation of these Terms. When reasonably practicable and lawfully permitted, Kimaru will provide Customer with advance notice of any such suspension. Kimaru will use reasonable efforts to re-establish the Services promptly after Kimaru determines that the issue causing the suspension has been resolved. During any suspension period, Kimaru will make Customer Data (as it existed on the suspension date) available to Customer. Any suspension under this Section 10.3 shall not excuse Customer from any payment obligations.

10.4. Irrevocability.

Customer’s order for Services as set forth in an Order Form is irrevocable in all respects, subject only to termination in accordance with this Agreement. By executing the Order Form, Customer agrees to pay all Fees set forth therein for the Order Form Term.

10.5. Effect of Termination.

Upon termination of this Agreement: (a) Customer will immediately cease use of the Platform and promptly return or destroy all copies of the Documentation; (b) all amounts owing, including Fees for Services rendered up to the effective date of such termination, will be immediately due and payable; and (c) subject to Section 5.8(d), each Party will promptly return or destroy any Confidential Information of the other Party.

10.6. Survival.

Sections 2.2(a), 2.4, 2.7, 3.5(b), 4, 5, 6, 7.3, 8, 9, 10.5, 10.6, 11 and 12 will survive termination of this Agreement or any Order Form.

11. Arbitration

11.1. Scope; Governing Rules.

Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be determined by final and binding arbitration administered by the International Chamber of Commerce (“ICC”) under its Arbitration Rules (“Rules”), including, if appropriate, the International Commercial Arbitration Supplementary Procedures.

11.2. Selection of Arbitrator.

There shall be one arbitrator agreed to by the Parties within twenty (20) days of receipt by the respondent of the request for arbitration or in default thereof appointed by the ICC in accordance with its Rules.

11.3. Proceedings.

The seat or place of arbitration shall be [New York, New York, USA]. The arbitration shall be conducted and the award shall be rendered in the English language. The award rendered by the arbitrator shall be final and binding on the Parties and may be entered and enforced in any court having jurisdiction, and any court where a Party or its assets is located (to whose jurisdiction the Parties consent for the purposes of enforcing the award). Judgment on the award shall be final and non-appealable.

11.4. Confidentiality.

Except as may be required by law, neither a Party nor the arbitrator may disclose the existence, content or results of any arbitration without the prior written consent of both Parties, unless to protect or pursue a legal right.

11.5. Interim Relief.

Notwithstanding anything to the contrary in this Section 11, Customer and Kimaru shall each have the right to apply to any court of competent jurisdiction for a temporary restraining order, preliminary injunction, or other similar interim or conservatory relief, as necessary, pending resolution under the arbitration procedures set forth in this Section 11. Nothing in the preceding sentence shall be interpreted as limiting the powers of the arbitrator with respect to any dispute subject to arbitration under this Agreement.

12. Miscellaneous.

12.1. Notices.

Any communication, demand, approval, consent or other notice from one Party to the other Party required to be given under this Agreement shall be in writing and personally delivered, sent via certified mail, postage prepaid and return receipt requested, sent via internationally recognized courier service or sent via email with a copy sent by one of the other previous means, to the other Party at the address set forth on the applicable Order Form or such other address as either Party may from time to time designate in writing to the other Party. No change of address shall be binding upon the other Party until notice thereof is received by such Party. Each notice shall be in English. Each notice shall be effective: (a) on personal delivery; (b) five (5) days after delivery by certified mail, postage prepaid and return receipt requested; (c) two (2) business days after being sent via internationally recognized courier service; or (d) the next business day after being sent via email with a copy sent by one of the other previous means. This Section 12.1 will not apply to communication between the Parties made in the ordinary course of business.

12.2. Force Majeure.

Except for Customer’s payment obligations, neither Party is responsible for any delay or failure to perform resulting from any cause beyond such Party’s reasonable control, which may include, but is not limited to, any act of God, fire, hurricane, flood, terrorism, act of war, labor disturbance, telecommunications failure, utility failure, network failure, pandemic, act of governmental authorities or change of applicable Laws.

12.3. Assignment.

Customer is not permitted to transfer or assign (by operation of law or otherwise) any of its rights or obligations under this Agreement without the prior consent of Kimaru, which consent will not be unreasonably withheld, delayed or denied. Any such transfer or assignment without Kimaru’s consent will be void and of no force and effect.

12.4. Publicity.

Kimaru is happy to have Customer as a valued customer. Customer hereby grants to Kimaru a worldwide, non-exclusive, royalty-free, non-transferable license to use Customer’s trademarks, service marks or logos (“Marks”) for the purpose of including Customer in its representative list of clients. Customer may notify Kimaru if Customer prefers that Kimaru not use Customer’s name or use Customer’s Marks in a particular way. Kimaru will respect Customer’s wishes upon receipt of such notice. Except as set out in this Section 12.4, neither Party will use the name of the other Party in publicity releases or similar activity without the consent of the other Party.

12.5. Severability.

If any provision of this Agreement, or portion thereof, is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, such provision will be severed and the remaining provisions of this Agreement will remain in full force and effect.

12.6. Independent Contractor.

Each Party will act as an independent contractor and employees of one Party will not be considered to be employees of the other Party. No agency, partnership, joint venture or other joint relationship is created by this Agreement. Neither Party may make any commitments binding on the other Party, nor may either Party make any representation that they are acting for, or on behalf of, the other Party.

12.7. Governing Law and Venue.

This Agreement will be governed by, and construed in accordance with, the Laws of the State of Delaware, USA, without giving effect to the conflict of Laws principles thereof.

12.8. Headings.

Captions and headings contained in these Terms have been included for ease of reference and convenience and shall not be considered in interpreting or construing these Terms.

12.9. Interpretation.

Except where the context expressly requires otherwise: (a) the use of the singular will be deemed to include the plural (and vice versa); (b) the words “include”, “includes”, “including” or “e.g.” will be deemed to be followed by the phrase “without limitation”; (c) the word “will” will be construed to have the same meaning and effect as the word “shall”; (d) the words “herein”, “hereof” and “hereunder”, or any word of similar import, will be construed to refer to this Agreement in its entirety and not to any particular provision hereof, including each Order Form that references these Terms; and (e) the term “or” will be interpreted in the inclusive sense commonly associated with the term “and/or”.

12.10. Entire Agreement.

This Agreement, including these Terms and any Order Forms, and all appendices, exhibits, schedules and attachments thereto and hereto, constitutes the sole and complete agreement between the Parties with regard to its subject matter. Except as otherwise provided herein, this Agreement may not be modified or amended except by a writing signed by both Parties, and supersedes all proposals, understandings, representations, prior agreements or communications relating to the Platform and the subject matter of this Agreement. This Agreement also supersedes any pre-printed terms contained on any purchase order or similar document issued by Customer and any such terms will have no force or effect. This Agreement will not be construed against the drafting Party, but instead will be construed as if both Parties prepared this Agreement.

12.11. Changes to these Terms.

Notwithstanding anything to the contrary, we may update these Terms at any time, in our discretion, by providing Customer with reasonable notice, including by posting the update on the Services. If, in Kimaru’s sole discretion, an update materially impacts Customer’s rights or obligations (a “Material Update”), Kimaru will provide at least thirty (30) days’ prior notice of the Material Update or as advance much notice as reasonably practicable if Kimaru reasonably determines the Material Update is required sooner for the purpose of compliance with any applicable Law. All other updates will be effective on the date that Kimaru makes available the updated Terms. Customer’s continued use of, or access to, the Platform after the effective date of an update will constitute acceptance of the update; provided, however, that if Customer does not agree with a Material Update and Customer notifies Kimaru within thirty (30) days of receipt of notice of the Material Update, Kimaru will agree that the then-prior version of these Terms will apply to Customer’s use of the Services until the end of the then-current Term. The updated Terms will apply to any subsequent Term or Renewal Term.

Appendix I

Data Processing Agreement