Master Services Agreement

This Master Services Agreement, including all Order Forms, addenda, exhibits and schedules hereto (collectively, this “Agreement”), is between Ontic Technologies, Inc., a Delaware corporation, located at 1608 W 5th St, Suite 100, Austin, Texas 78703 (“Ontic”) and (“Client”), and is effective as of the date of last signature below (“Effective Date”). Ontic and Client are each referred to individually as a “party,” and collectively as the “parties.”

For good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:

1. CERTAIN DEFINITIONS.

“Client Data” means the data or information entered into the SaaS Platform by, or on behalf of Client, by a User. Client Data does not include any Ontic Data.

“Data” means the Client Data and Data Feeds.

“Data Feeds” means the proprietary data feeds from Ontic’s third-party vendors accessible by Client through the Subscription Services.

“Documentation” means any release notes, specifications, and other written or electronic materials made available to Client within the SaaS Platform that describe the features, functionality, or operation of the Subscription Services, as updated by Ontic from time to time. In the event of a conflict between any Documentation and the terms of this Agreement, the terms of this Agreement shall control.

“Feedback” means all suggestions, comments, opinions, input, ideas, reports, information, know-how or other feedback provided by Client (whether in oral, electronic or written form) to Ontic related to the Subscription Services. Feedback will not include any Client Data.

“Implementation Services” means any implementation, onboarding, enablement and data migration services to be provided by Ontic to Client as set forth on an Order Form.

“Internal Purposes” means Client’s internal business use of the Subscription Services for the purposes of fulfilling Client’s protective intelligence and security requirements, solely for Client’s benefit and not for the benefit of any third party.

“Ontic Data” means the Data Feeds and Usage Data.

“Order Form” means each mutually agreed upon order form or statement of work (“SOW”) enumerating the specific Services being purchased by Client, including the type or quantity of items, the number of seats or users, the Fees for such items and any additional terms applicable to the use of such items.

“SaaS Platform” means Ontic’s proprietary multi-tenancy software as a service platform, including the hosted environment, databases, and web interfaces through which Users may access and use the Subscription Services.

“Security Incident” means a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Data or the SaaS Platform. A Security Incident does not include unsuccessful attempts or activities that do not compromise the security of Data or the SaaS Platform, including but not limited to, unsuccessful log-in attempts, pings, port scans, denial of service attacks, or other unsuccessful attempts to penetrate computer networks or servers maintained by Ontic or its subcontractors.

“Services” means the Subscription Services, Implementation Services, SIS and or any other services to be provided by Ontic as specified on the relevant Order Form.

“Strategic Intelligence Services” or “SIS” means the Ontic team that utilizes the SaaS Platform and supports Clients in achieving their business objectives through planning, conducting, and completing open source intelligence (OSINT) activities and research only at Client’s direction as agreed upon by the parties and specified in an executed Order Form. At Client’s request and direction, SIS may obtain and input public records and other publicly available data into Client’s instance of the SaaS Platform. The information identified by SIS is subject to Client’s verification and authentication. At no time will a SIS team member provide an assessment of risk, assign a threat level, or provide security directives. The data found by the SIS team is not meant to be an exhaustive investigation, and other relevant information may exist.

“Subscription Services” means any and all of the services, software and other offerings provided by Ontic pursuant to this Agreement, including the SaaS Platform, Data Feeds, mobile applications, application programming interfaces (APIs), and the offerings provided through the https://ontic.co and https://app.ontic.ai domains and subdomains.  Subscription Services will include any enhancements, updates, upgrades, derivatives or bug fixes to such services, software, and offerings, and any Documentation, add-ons, templates, and sample data sets, as provided by Ontic.

“Usage Data” means the statistical and technical information logged by Ontic’s systems and derived from Client’s use of the SaaS Platform, such as system performance metrics, feature usage statistics, error logs, and diagnostic data. Usage Data will not include any Client Data nor will it be used by Ontic in a way that would allow any third party to identify Client or any individual User.  Ontic may use Usage Data for any internal business purpose, including without limitation product development, analytics, benchmarking, service improvements.

“User” means a distinct employee or independent contractor of Client that Client authorizes to access and use the Subscription Services in accordance with this Agreement. Use of the Subscription Services by an independent contractor of Client is only permitted if the User is under confidentiality obligations with Client at least as restrictive as those in this Agreement. User shall not include any other third parties.

2. Subscription Services. Client’s use of the Services is subject to and governed by the terms and conditions in this Agreement, including those in the applicable Order Form. No deliverables will be delivered under any Order Form, nor will any intellectual property rights vest in Client, unless otherwise stated in the applicable Order Form. In the event of a conflict between the terms in an Order Form and this Agreement, the terms in the Order Form shall control with respect to the Subscription Services provided under such Order Form. Subject to and conditioned on Client’s compliance with the terms and conditions of this Agreement and those in the applicable Order Form, Ontic grants Client a non-exclusive, non-sublicensable, non-transferable, revocable, limited right during the Term to use the Subscription Services for Internal Purposes. Ontic shall take all commercially reasonable efforts to make the SaaS Platform available in accordance with the Service Level Agreement provided at: https://ontic.co/legal/sla (“SLA”).

• License to Client Data. Client grants to Ontic a non-exclusive, revocable, royalty-free, worldwide right and license to copy, cache, store, reproduce, perform, display, use, distribute and transmit the Client Data, for the purpose of providing and improving the Subscription Services and, as required, providing onboarding, training and troubleshooting to Client.

• Implementation Services and SIS. Ontic shall perform the Implementation Services and SIS as set forth on an applicable Order Form and Client agrees to pay Ontic the corresponding Fees as set forth in the applicable Order Form. Implementation Services and SIS shall be performed in a timely, workmanlike and professional manner by qualified personnel in accordance with the timelines and specifications set forth in the applicable Order Form. In connection with Ontic’s provision of the Implementation Services and SIS, Client shall perform any tasks, fulfill any necessary responsibilities, and provide any necessary assistance reasonably requested by Ontic in connection with Ontic’s provision of those services.

3. • Except as expressly authorized in this Agreement or in writing by Ontic, Client will not, and will not permit any third party to: (i) access or use the Services for any purpose other than Internal Purposes (including for any competitive analysis, commercial, professional, or other for-profit purposes); (ii) copy, modify, adapt, translate or create derivative works of the Subscription Services; (iii) decompile, disassemble, reverse-engineer, or otherwise attempt to derive the source code, algorithms, methods, or techniques used or embodied in the Subscription Services; (iv) rent, lease, loan, resell, transfer, sublicense, display or distribute the Subscription Services to any third party; (v) use or offer any functionality of the Services on a service provider, service bureau, hosted, software as a service, or time sharing basis; (vi) “frame”, “mirror” or create Internet “links” to the Subscription Services on any other server, or wireless or Internet-based device; (vii) use the Subscription Services or Implementation Services to build a similar or competitive product or service or disclose to any third party the results of any benchmark tests or other evaluation of the Subscription Services; (viii) remove, alter, obscure, cover or change any trademark, copyright or other proprietary notices, labels or markings from or on the Subscription Services; (ix) use the Subscription Services to transmit code, files, scripts, agents or programs intended to do harm, including without limitation viruses, worms, time bombs and trojan horses; (x) use the Services for any decision-making context regulated by the Fair Credit Reporting Act, 15 U.S.C. Section 1681, et seq. (“FCRA”), as amended; (xi) use the Services for any illegal, unauthorized or otherwise improper purposes (including but not limited to, defame, abuse, harass, stalk, threaten, promote injury against any individual or group) or otherwise violate any applicable laws; or (xii) store any patient medical records or Protected Health Information (as defined by the Health Insurance Portability and Accountability Act of 1996), payment card, bank account or other payment information, or any personal information of a minor (collectively, “Prohibited Information”).

• A unique account with Ontic must be established for each User to use and access the Subscription Services. Client shall (i) provide current, complete and accurate information to establish the account, (ii) maintain the security of the account credentials to prevent loss, theft, or unauthorized disclosure thereof. Users may operate the Subscription Services on Client’s behalf, provided that: (A) such use is only in connection with Client’s Internal Purposes and does not constitute an increase in the scope of the rights provided hereunder; and (B) Client is responsible for ensuring that all Users fully comply with the terms and conditions of this Agreement and shall be fully liable for any and all acts or omissions occurring under its login credentials.
• Ontic may suspend Client’s or any User’s access to the Subscription Services, in whole or in part, upon written notice to Client if Ontic reasonably believes that: (i) Client’s use poses a material security risk to Ontic or the SaaS Platform; or (ii) suspension is required to comply with applicable law or the terms of this Agreement. Ontic will restore access upon Client’s written confirmation that the applicable violation has been cured. Any suspension will not relieve Client of its payment obligations or limit Ontic’s other available remedies. 

4. • “Confidential Information” means information that either: (i) is designated as confidential by the Discloser at the time of disclosure; or (ii) would reasonably be understood by the Recipient, given the nature of the information or the circumstances surrounding its disclosure, to be confidential, including without limitation, Discloser’s product designs, product plans, data, software and technology, financial information, marketing plans, business opportunities, proposed terms, pricing information, discounts, inventions and know-how disclosed by Discloser to Recipient, whether in writing, verbally or otherwise, and whether prior to, on or after the Effective Date. Confidential Information of Ontic also includes the Subscription Services and the existence and terms and conditions of this Agreement.

• Use and Disclosure of Confidential Information. A party which receives Confidential Information under this Agreement (“Recipient”) may not use the Confidential Information from the party which discloses Confidential Information under this Agreement (“Discloser”) in any way, for its own benefit or the benefit of any third party, except as expressly permitted by, or as required to implement, this Agreement. Recipient will: (i) hold Confidential Information in strict confidence and take reasonable precautions to protect and secure such Confidential Information (such precautions to include, at a minimum, all precautions Recipient employs with respect to its own Confidential Information); and (ii) not divulge any Confidential Information to any third party without the prior written consent of Discloser, other than to Recipient’s employees, contractors or professional advisors who have a legitimate “need to know” such Confidential Information, are informed of its confidential nature and are bound by confidentiality obligations no less protective of the Confidential Information than the terms contained herein. Recipient will remain responsible and liable for each such person’s compliance with this Agreement.

• Confidentiality Period; Return or Destruction of Confidential Information. Recipient’s obligations with respect to Confidential Information under this Agreement expire two years from the date of expiration or earlier termination of this Agreement (except with respect to any trade secrets where such obligations will be perpetual for so long as such Confidential Information remains a trade secret under applicable law). Upon termination of this Agreement, an applicable Order Form or written request by Discloser, the Recipient will: (i) cease using the Confidential Information; and (ii) return to Discloser or destroy the Confidential Information and all copies, notes or extracts thereof within 30 days of such request or termination. Upon Discloser’s request, the Recipient will certify in writing that it has returned or destroyed all copies of the Discloser’s Confidential Information. Notwithstanding anything to the contrary herein, Recipient shall have the right to retain any of Discloser’s Confidential Information contained in an archived computer backup system stored as a result of automated backup procedures and may retain a reasonable number of archival copies of Discloser’s Confidential Information, as may be required by law or Recipient’s standard document retention policies; provided any such retained Confidential Information shall remain subject to the confidentiality obligations set forth herein for so long as such information is retained. 

• This Agreement imposes no obligations with respect to information which: (i) was in Recipient’s possession before receipt from Discloser; (ii) is or becomes a matter of public knowledge through no fault of Recipient; (iii) was rightfully disclosed to Recipient by a third party, who has no restriction on disclosure; or (iv) is developed by Recipient without use of, reliance on, or reference to the Confidential Information as can be shown by documentary evidence. Recipient may make disclosures to the extent required by law or court order, provided Recipient makes reasonable efforts, to the extent legally permitted, to provide Discloser with notice of such disclosure as promptly as possible and uses diligent efforts to limit, at Discloser’s expense, such disclosure and obtain confidential treatment or a protective order, and has allowed Discloser to participate in the proceeding.

5. TERM AND TERMINATION.
   • This Agreement will be effective from the Effective Date and shall continue for so long as an applicable Order Form remains outstanding, unless earlier terminated, as set forth below (the “Term”).

• This Agreement may be terminated, effective upon written notice or cause by either party: (i) if the other party materially breaches this Agreement and such breach is incapable of cure; (ii) upon 30 days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; (iii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors and is not discharged within 90 days of filing thereof; or (iv) by Client if Ontic fails to meet its SLA Platform Uptime Commitment (as defined in the SLA). 

• Effect of Termination. Immediately upon termination, (i) all Order Forms and rights granted under Section 2 of this Agreement, including any access to Data Feeds or provision of Services, will immediately terminate and Client will immediately cease all use of the Subscription Services; (ii) Client will destroy the Data Feeds in its possession, or upon request by Ontic, return to Ontic the Confidential Information that is in its possession or control; (iii) any and all of Client’s outstanding payment obligations under each Order Form will immediately become due; and (iv) if this Agreement is terminated by Client pursuant to Section 5(b), Ontic will refund any pre-paid but unused Fees paid by Client prior to the effective date of such termination. Sections 1, 3 – 13, and 14 – 17, will survive termination of this Agreement.

• Client Data. Within 30 days following the expiration or termination of this Agreement, at no additional cost to Client, Client may request in writing that Ontic extract all then-available Client Data from the SaaS Platform and Ontic will transfer such Client Data in a commercially reasonable timeframe to Client in xlsx format to an Ontic-provided SFTP location. Following such 30 day time-period, Ontic reserves the right to delete or destroy any Client Data from the SaaS Platform to the extent not legally prohibited, without liability or additional notice.

6. • Subscription Services. Ontic or its third-party vendors retain and reserve all rights to and in the Services not expressly granted in this Agreement. Ontic, its suppliers or its third-party vendors own all worldwide right, title and interest in and to the Subscription Services, including all worldwide intellectual property rights related thereto. Except as expressly stated in this Agreement, Ontic does not grant Client any rights in the Subscription Services. The Subscription Services are copyrighted and protected by the laws of the United States and other countries, and international treaty provisions. Ontic, its suppliers or its third-party vendors shall remain the sole and exclusive owner of all worldwide right, title and interest in and to the Ontic Data, including all intellectual property rights related thereto. Except as expressly stated in this Agreement, Ontic, its suppliers or its third-party vendors do not grant Client any rights, including any related intellectual property rights, in the Ontic Data. Ontic reserves all rights not expressly granted under this Agreement.

• Client Data. As between Client and Ontic, Client shall remain the sole and exclusive owner of all worldwide right, title and interest in and to the Client Data, including all intellectual property rights related thereto. Except as expressly stated in this Agreement, Client does not grant Ontic any rights, including any related intellectual property rights, in the Client Data.

7. • Fees and Expenses. Client shall pay all agreed upon fees for the Services as set forth in the applicable Order Form (“Fees”) and in accordance with any terms set forth therein.
   • Payment Terms. Client shall provide Ontic with complete and accurate billing contact information including a valid email address. If applicable, Client shall issue a purchase order within 15 business days from execution of an Order Form. All payments to Ontic are non-refundable except as otherwise expressly provided in the applicable Order Form or this Agreement. All payments will be made in United States dollars via electric funds transfer, as per the instructions of Ontic, or as otherwise agreed to in an Order Form or SOW.
   • Late Payments. If Client fails to pay any undisputed past due invoice, Ontic may revoke or suspend the Subscription Services, after providing five days’ written notice, until such amounts are paid in full. Ontic may charge interest on all past due invoices at a rate of 1.5% per month, or the highest rate allowed by applicable law, whichever is lower. Client will be responsible for all costs of collection associated with any such late payments.
   • All Fees exclude any and all taxes and similar fees now in force, enacted or imposed in the future on the transaction, delivery of the Subscription Services, including any sales, use or value added taxes, goods and services tax, consumption tax, customs duties or similar charges, but excluding withholding taxes and taxes solely based on Ontic’s net income, and Client shall be responsible for payment of all such taxes, duties and charges, and any related penalties and interest arising from the payment of such amounts. If Client is tax-exempt, it shall provide Ontic with its tax-exemption number and certificate within five days of the Effective Date.
8. Client may provide Ontic with Feedback. Ontic, in its sole discretion, may or may not respond to Client’s Feedback or agree to address all of Client’s Feedback in the development of future features or functionalities of the Subscription Services or any related or subsequent versions of such Subscription Services. Client assigns, at no charge, all rights, title and interests in Feedback to Ontic, and agrees that Ontic is free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in the Feedback in any form and any medium (whether now known or later developed), without credit or compensation to Client. Feedback shall not include any Client Data.

9. • Data Processing. Ontic shall process and use any personal Data in accordance with the Ontic Data Processing Addendum, which is incorporated herein, located at https://ontic.co/legal/dpa/. Ontic will maintain a security program materially in accordance with industry standards that are designed to protect the security, confidentiality and integrity of the Data. For the avoidance of doubt, Ontic may retain a User’s name, email address, or account identifier to the extent necessary for authentication, audit, or analytics purposes, and any such information shall be processed in accordance with the Ontic Data Processing Addendum and applicable data protection laws.

• Data Warranty and Obligations. Client represents, warrants and agrees that Client has all rights to provide the Client Data and other materials that Client provides or makes available to Ontic. Under no circumstances will Ontic be liable in any way for the content of any Client Data, including, but not limited to, any errors or omissions in any Client Data, or any loss or damages of any kind incurred as a result of Client’s use, deletion, modification, or correction of any Client Data. Client acknowledges and agrees that it is solely responsible for its conduct while using the Subscription Services and shall evaluate and bear all risks associated with its use and distribution of all Data. Client shall be solely responsible for (i) reviewing and approving all Data stored in the SaaS Platform, (ii) deleting or retaining Data stored in the SaaS Platform and (iii) restricting access to the Subscription Services and all Data therein to only those Users who have a need to know as part of their official duties.  Client acknowledges and agrees that it is responsible for the confidentiality and protection of the Data Feeds on its own systems and will maintain appropriate administrative, technical and physical safeguards aimed at protecting such Data. Ontic shall have no liability for Client’s failure to meet the foregoing obligations. Each party shall promptly, but no later than 24 hours, notify the other party in writing (for Ontic, notice must be sent to security@ontic.co) if it becomes aware of any Security Incident. Not more than once per calendar year, Ontic may request Client to verify that a random sample of searches were conducted in compliance with applicable laws and this Agreement. Client agrees to reasonably cooperate with Ontic in conjunction with such request including, but not limited to, requests to correct any deficiencies discovered and/or to suspend any further provision of the Services until such deficiencies are corrected to Ontic’s reasonable satisfaction.

• Prohibited Information. Client agrees that Data will not contain Prohibited Information. Ontic reserves the right to remove Prohibited Information from, or refuse to process, any Prohibited Information as part of the Subscription Services. Ontic reserves the right to suspend or terminate any User that created, entered or processed Prohibited Information and Client affirmatively consents to said suspension or termination of any User by Ontic for violation of this Section upon Ontic’s notice to Client of the suspension or termination (notice by email to the contact herein shall be sufficient).

• Data Vendors. Client acknowledges and agrees that the Subscription Services include and provide access to third-party products, services, content and offerings, including without limitation Data Feeds (“Third Party Services”). Client agrees that Ontic does not endorse and is not responsible or liable for any issues related to Third Party Services. Furthermore, Client acknowledges and agrees that any Data Feeds or information provided to or accessed by Client with respect to such Third Party Services are and shall remain the sole and exclusive property of the provider of such Third Party Services or the applicable licensor and no intellectual property rights in or to any such Third Party Services are being transferred to Client pursuant to this Agreement. ONTIC DOES NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, AS TO THE ACCURACY, ADEQUACY, TIMELINESS OR COMPLETENESS OF ANY DATA FEEDS OR ANY OTHER INFORMATION, CONTENT, OR OTHER MATERIALS PROVIDED BY ANY THIRD-PARTY PROVIDER OR PURSUANT TO ANY THIRD PARTY SERVICES. THE THIRD PARTY SERVICES ARE PROVIDED TO CLIENT ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES (I) AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, (II) WITH RESPECT TO THE RESULTS WHICH MAY BE OBTAINED FROM THE USE OF SUCH MATERIALS, NOR (III) REGARDING CLIENT’S USE OF THE SERVICES, IN AN EFFORT TO COMPLY WITH ANY APPLICABLE LAWS. THE SUBSCRIPTION SERVICES ARE NOT THE ORIGINAL SOURCE OF ANY DATA AVAILABLE THROUGH THE SUBSCRIPTION SERVICES, NOR ARE THE SUBSCRIPTION SERVICES A COMPREHENSIVE COMPILATION OF ANY PARTICULAR DATA SET. DATA ACCESSED THROUGH THE SUBSCRIPTION SERVICES SHOULD BE INDEPENDENTLY VERIFIED BY CLIENT AND IN NO EVENT SHALL ONTIC BE LIABLE FOR ANY DECISIONS MADE, ACTIONS TAKEN, OR OMISSIONS MADE IN RELIANCE UPON THE AVAILABILITY OF, OR INFORMATION MADE AVAILABLE, THROUGH THE SUBSCRIPTION SERVICES.

10. • Mutual Representations and Warranties. Each party represents and warrants that it has full right, power, and authority to enter into this Agreement and to perform its obligations and duties under this Agreement, and that the performance of such obligations and duties does not conflict with or result in a breach of any other agreement of such party or any judgment, order, or decree by which such party is bound.

• EXCEPT AS SET FORTH IN THIS AGREEMENT, ONTIC DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THIS AGREEMENT (INCLUDING WITHOUT LIMITATION, WITH RESPECT TO THE SERVICES), INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, TITLE, QUIET ENJOYMENT AND WARRANTIES ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR BY STATUTE OR IN LAW. ONTIC SPECIFICALLY DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES (INCLUDING ANY AI FEATURES) WILL MEET CLIENT’S REQUIREMENTS, THE OPERATION OR OUTPUT OF THE SUBSCRIPTION SERVICES WILL BE ERROR-FREE, VIRUS-FREE, SECURE, ACCURATE, RELIABLE, COMPLETE OR UNINTERRUPTED. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, CLIENT PROVIDES THE CLIENT DATA ON AN “AS IS” BASIS AND PROVIDES NO GUARANTEE OF THE ACCURACY OF THE CLIENT DATA PROVIDED TO ONTIC. ONTIC IS NOT OBLIGATED TO SUPPORT, UPDATE OR UPGRADE THE SUBSCRIPTION SERVICES EXCEPT AS PROVIDED IN THE SLA. ONTIC HAS NO OBLIGATION TO MONITOR, ANALYZE, OR INTERPRET ANY RESULTS OR OUTPUTS GENERATED BY THE SUBSCRIPTION SERVICES, AND ANY SUCH ACTIVITIES ARE OUTSIDE THE SCOPE OF THE SUBSCRIPTION SERVICES UNLESS EXPRESSLY SET FORTH IN A SEPARATE WRITTEN AGREEMENT BETWEEN THE PARTIES.
• No Consumer Reports. The Subscription Services are not provided by a “Consumer Reporting Agency,” as defined in the FCRA, as amended, and do not constitute “Consumer Reports” as defined in the FCRA. Accordingly, Client shall not use the Subscription Services in whole or in part as a factor in determining eligibility for credit, insurance, employment or for any other purpose for which a Consumer Report may be used under FCRA.
• Use for Investigative Purposes. The Data Feeds are not the original source of data and should not be used for criminal investigations or other governmental investigative purposes. Ontic shall not be responsible for Client’s use of the Subscription Services in connection with any such purposes.
• AI Features. The Subscription Services provided to Client pursuant to this Agreement may incorporate features that incorporate or leverage Artificial Intelligence (“AI Features”). “Artificial Intelligence” or “AI” means a machine-based system that, for a given set of human-defined objectives, generates predictions, recommendations, or outputs to support human decision-making, where such outputs influence real or virtual environments. Upon Client’s request, Ontic shall provide Documentation describing the AI Features and their intended purpose. Ontic will not use Client Data to train, retrain, or improve AI models for Ontic’s general benefit or for the benefit of other Ontic clients. Ontic will not provide Client Data as input to any third-party AI technology unless such third party is contractually prohibited from using Client Data to train or improve its own AI models and such third party is bound by confidentiality and data security obligations no less protective than those in this Agreement. Client acknowledges that outputs of the AI Features may incorporate or be derived from Data Feeds, and Ontic does not convey to Client any ownership interest in the Data Feeds or any AI outputs to the extent they constitute derivative works of the Data Feeds. Client acknowledges that AI Features generate probabilistic outputs that may be inaccurate, incomplete, or unreliable, and Client is responsible for independently reviewing all AI Feature outputs before relying on them or taking any action based on them. Ontic shall use commercially reasonable efforts to comply with applicable laws and generally accepted artificial intelligence industry standards in connection with its development of AI Features. Client may opt out of AI Features upon written notice to Ontic.
• Beta Releases. From time to time, Ontic may in its sole discretion grant Client access to “alpha”, “beta”, “technical preview”, pre-release or other early-stage features or products (each, a “Beta Release”). Access to any Beta Release shall be subject to, and Client shall comply with, all additional terms related to any Beta Releases as posted or otherwise made available by Ontic. Ontic may add or modify terms related to access or use of the Beta Release at any time. Ontic reserves the right to modify, suspend or discontinue any Beta Release, or to revoke Client’s access to any Beta Release, at any time and for any reason, without notice or liability. While Ontic may provide assistance with Beta Releases in its discretion, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, CLIENT AGREES THAT ALL BETA RELEASES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTY, SUPPORT, MAINTENANCE, STORAGE, OR SERVICE LEVEL COMMITMENTS OF ANY KIND. ONTIC DOES NOT WARRANT THAT ANY BETA RELEASE WILL BE COMPLETE, ERROR-FREE, FIT FOR ANY PURPOSE OR FULLY FUNCTIONAL AND ONTIC WILL NOT BE RESPONSIBLE FOR ANY BUGS, ERRORS, DATA LOSS, OMISSIONS, AND OTHER PROBLEMS ARISING FROM CLIENT’S USE OF ANY BETA RELEASE. Ontic makes no commitment that future versions of any Beta Release will be made available. Client’s access to any Beta Release will automatically terminate upon the earlier of (i) the release of a generally available version of the applicable Beta Release, (ii) notice of termination by Ontic, or (iii) the expiration or termination of this Agreement.

11. • Claims Against Client. Subject to the terms of this Agreement, Ontic will defend, at its own expense, and hold Client harmless against any claim, suit or action brought against Client by a third party to the extent that such claim, suit or action arises from (i) an allegation that the Subscription Services, when used as expressly permitted by this Agreement, infringes, misappropriates or violates the intellectual property rights of such third party (an “Infringement Claim”), (ii) Ontic’s failure to comply with any applicable laws or regulations in connection with its delivery of the Subscription Services, or (iii) Ontic’s gross negligence or willful misconduct in the performance of its obligations hereunder (each, a “Client Claim”), and Ontic will indemnify Client from liability incurred by Client to the extent arising from such Client Claim. If Ontic receives prompt notice of an Infringement Claim that, in Ontic’s reasonable opinion, is likely to result in an adverse ruling, then Ontic may at its sole discretion and expense: (A) obtain a right or license for Client to continue using the Subscription Services at issue; (B) modify such Subscription Services to make it non-infringing; (C) replace such Subscription Services with a non-infringing version; or (D) provide a pro rata refund of pre-paid, unused Fees for the allegedly infringing Subscription Services.

• Ontic Indemnity Limits. Notwithstanding the foregoing, Ontic will have no obligation under Section 11(a) or otherwise with respect to any Infringement Claim based upon: (i) any use of the Subscription Services in a manner not expressly permitted under this Agreement, where such claim would not have arisen but for such use; (ii) any use of the Subscription Services in combination with products, equipment, software, or data not provided or approved by Ontic, where such infringement would not have arisen but for such combination; (iii) any modification of the Subscription Services made by any person other than Ontic or its authorized agents or subcontractors; (iv) any output, recommendation, or result generated by any artificial intelligence or machine learning feature of the Subscription Services, to the extent such claim would not have arisen but for such output; or (v) any Data uploaded to or accessed through the Subscription Services by Client, except to the extent such claim arises solely from the Subscription Services themselves and not from the content of such Data (collectively, “Excluded Claims”). Section 11(a) states Ontic’s sole liability and Client’s exclusive remedy for all Client Claims.

 

• Claims Against Ontic. Subject to the terms of this Agreement, Client will defend, at its own expense, and hold Ontic harmless against any claim, suit or action against Ontic brought by a third party to the extent that such claim, suit or action arises from (i) Client’s violation of any applicable laws or regulations in connection with its use of the Services, (ii) Client’s use of the Services in breach or violation of this Agreement, (iii) Client Data, if processed and used by Ontic in accordance with this Agreement, or (iv) Excluded Claims (each, an “Ontic Claim” and, together with Client Claims, “Claims”), and Client will indemnify and hold Ontic harmless from liability incurred by Ontic that is specifically attributable to such Ontic Claim or those costs and damages agreed to in a monetary settlement of such Ontic Claim.

• The foregoing obligations are conditioned on the party seeking indemnification: (i) promptly notifying the indemnifying party in writing of such claim; (ii) giving the indemnifying party sole control of the defense thereof and any related settlement negotiations; (iii) cooperating and, at the indemnifying party’s request and expense, assisting in such defense; and (iv) mitigating its losses insofar as is reasonable under the circumstances. Neither party may make any public announcement of any claim, defense or settlement without the other party’s prior written approval. The indemnifying party may not settle, compromise or resolve a claim without the consent of the indemnified party, if such settlement, compromise or resolution causes or requires an admission or finding of guilt against the indemnified party, imposes obligations or any monetary damages against the indemnified party, or does not fully release the indemnified party from liability with respect to the claim. The indemnifying party’s obligations under this Section 11 will be limited to the extent to which a court of final jurisdiction finds that the indemnified party contributed to the third-party claim, suit or action.

12. LIMITATION OF LIABILITY.
    • TO THE EXTENT PERMISSIBLE BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR FOR ANY LOSS OF USE, DATA, GOODWILL OR PROFITS, BUSINESS INTERRUPTION, OR, IN THE CASE OF ONTIC, COSTS OF PROCURING SUBSTITUTE SOFTWARE (OTHER THAN AS MAY BE PROVIDED UNDER SECTION 11(A)), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, ONTIC WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY BUSINESS INTERRUPTION OR LOSS OF DATA ARISING FROM THE AUTOMATIC TERMINATION OR EXPIRATION OF THE RIGHTS GRANTED IN SECTION 2.

• EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 11, PAYMENT OF FEES, BREACH OF CONFIDENTIALITY, LIABILITY FOR BREACH OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS AND CLIENT’S BREACH OF SECTION 3(A), EACH PARTY’S TOTAL CUMULATIVE LIABILITY TO THE OTHER PARTY, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY IN CONNECTION WITH THIS AGREEMENT, INCLUDING ALL ORDER FORMS, WILL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY CLIENT TO ONTIC DURING THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
• NOTWITHSTANDING THE FOREGOING, ONTIC’S AGGREGATE LIABILITY TO CLIENT UNDER THIS AGREEMENT FOR ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY RESULTING FROM A SECURITY INCIDENT CAUSED BY ONTIC’S BREACH OF ITS SECURITY OBLIGATIONS UNDER SECTION 9(a) SHALL NOT EXCEED $1,000,000. FOR THE AVOIDANCE OF DOUBT, ONTIC’S LIABILITY FOR A SECURITY INCIDENT SHALL BE REDUCED PROPORTIONALLY TO THE EXTENT ANY SECURITY INCIDENT WAS CAUSED OR CONTRIBUTED TO BY CLIENT’S ACTS OR OMISSIONS, INCLUDING WITHOUT LIMITATION CLIENT’S FAILURE TO MAINTAIN APPROPRIATE SAFEGUARDS AS REQUIRED UNDER SECTION 9(b). 

• THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW.  THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

13. COMPLIANCE WITH LAWS.

Each party will comply fully with all applicable laws, including, without limitation: (a) all applicable laws relating to bribery or corruption, and export laws and regulations of the United States and any other country (“Export Laws”); (b) International Traffic in Arms Regulations; (c) rules and regulations promulgated by the Office of Foreign Assets Control; (d) Foreign Corrupt Practices Act; (e) the U.S. Government’s List of Specially Designated Nationals and Blocked Persons; (f) U.S. economic embargoes and sanctions; and (g) any applicable laws and regulations relating to privacy and data protection. Each party represents and warrants, to the extent applicable, that it is not (i) located in, or a resident or a national of, a restricted country; or (ii) on any of the relevant U.S. Government Lists of prohibited persons, including but not limited to the Treasury Department’s List of Specially Designated Nationals and the Commerce Department’s List of Denied Persons or Entity List. Client further represents and warrants that it shall not export, re-export, ship, or transfer the Subscription Services to any restricted countries or restricted end users or use the Subscription Services in any restricted countries or for any purposes prohibited by the Export Laws. Client understands that the requirements and restrictions of the Export Laws may vary depending on the specific Subscription Services and may change over time, and that, to determine the precise controls applicable to the Subscription Services, it is necessary to refer to the U.S. Export Administration Regulations and the U.S. Department of Treasury, Office of Foreign Assets Control Regulations. In the event an applicable law or regulation prohibits, limits or restricts the delivery or use of the Subscription Services, the parties agree to meet and negotiate in good faith to determine a mutually agreed upon solution in a timely manner to carry out the terms of this Agreement.

14. CHOICE OF LAW.

This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, as if performed wholly within the state and without giving effect to the principles of conflict of law rules of any jurisdiction.  The parties agree that neither the Uniform Computer Information Transaction Act (UCITA) nor the United Nations Convention on Contracts for the International Sale of Goods shall apply to this Agreement, regardless of the states in which the parties do business or are incorporated.

15. BINDING ARBITRATION AND CLASS ACTION WAIVER.
    • ALL CLAIMS SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT CLIENT MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THIS AGREEMENT AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF CLIENT’S CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.

• The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. Payment of all filing, administration and arbitrator fees shall be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, Client agrees that such hearing shall be conducted in Austin, Texas or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction. The prevailing party shall recover its reasonable attorneys’ fees, expert fees, costs including arbitration costs and fees.
• ONTIC AND CLIENT EACH AGREE THAT ALL CLAIMS SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR OTHER SIMILAR PROCESS (INCLUDING ARBITRATION). IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, ONTIC AND CLIENT EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. CLIENT HEREBY SUBMITS TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVES ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
• Notwithstanding anything to the contrary, each party may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect its Confidential Information or intellectual property rights, whether in aid of, pending, or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 15.

16. NON-SOLICIT.

During the Term and for a period of 12 months thereafter, neither party will directly or indirectly solicit or engage as an independent contractor or employee, any person employed by the other party or its affiliate except pursuant to a general solicitation that is not directed specifically to any employee. The parties acknowledge that the duration and scope of the restrictions contained in this Section 16 are reasonable.

17. Neither party may assign this Agreement or any of its rights or obligations, by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld, conditioned or delayed). However, either party may assign this Agreement, in whole or in part, in connection with a sale of all or substantially all of its assets or in the event of a merger or consolidation with another entity. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties’ permitted successors and assigns. Any attempt to assign this Agreement other than as permitted herein shall be null and void. This Agreement along with any additional terms incorporated herein by reference constitute the complete and exclusive understanding and agreement between the parties relating only to the subject matter of the Subscription Services, including Confidential Information, and shall supersede any and all prior or contemporaneous agreements, communications and understandings, written or oral, relating to such subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of both parties. All rights and remedies, whether conferred hereunder or by any other instrument or law, will be cumulative and may be exercised singularly or concurrently. The failure by either party to enforce any provisions of this Agreement will not constitute a waiver of any other right hereunder or of any subsequent enforcement of that or any other provisions. If a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, the remaining provisions of the Agreement will remain in full force and effect, and the provision affected will be construed so as to be enforceable to the maximum extent permissible by law. Any prevention of or delay in performance by Ontic hereunder due to labor disputes, acts of god, failure of the Internet, governmental restrictions, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay. This Agreement may be executed in several counterparts, all of which taken together shall constitute one single agreement between the parties hereto and signatures may be exchanged by facsimile, PDF or other electronic means. All notices required or permitted under this Agreement hereto will be in writing and delivered to the addresses below either in person or by email, overnight delivery service, or registered or certified mail, postage prepaid with return receipt requested, and in each instance will be deemed given upon receipt:

To Client: to the contact information provided herein or as subsequently provided in writing.

To Ontic: Ontic Technologies, Inc., 1608 W 5th St, Suite 100, Austin, Texas 78703 ATTN: Legal (email: Legal@ontic.co)