Master Services Agreement

Last updated: 14 June 2021

This MASTER SERVICES AGREEMENT (the “Agreement”) is entered into by and between you and Lilt, Inc., a Delaware corporation (“Lilt”). Specific business terms associated with your subscription to the Services (as defined in the “The Services” section below) will be stated in one or more ordering documents executed by the parties (or you and a Reseller) that reference this Agreement and are hereby incorporated into this Agreement by reference (“Order Form”). For the purposes of this Agreement, “you”, “your”, or “Customer” means the party identified as the customer in the applicable Order Form. By executing an Order Form that references this Agreement, each party signifies that it has read, understands, and agrees to be bound by its terms. This Agreement governs all Order Forms; any conflicting or additional terms and conditions are of no force or effect unless agreed to in a writing signed by both parties. In consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

1. The Services.

1.1 Ordering. Lilt is the provider of certain technology-powered translation services (“Services”). Lilt will provide the Services to Customer pursuant to one or more Order Forms. Further details regarding rush requests, word per-day limitations, etc. will also be stated on the applicable Order Form or service level agreement (“SLA”) attached to the Order Form. Order Forms may also include specific descriptions of translation deliverables to be supplied to Customer (“Deliverables”), milestones, and other related terms. For the purposes of this Agreement, a “Reseller” means a resale partner that is authorized by Lilt to resell the Services and/or Platform (as defined below). Customer’s affiliates may utilize the Services pursuant to Order Forms executed under this Agreement provided that Customer represents and warrants that it: (i) has the authority to negotiate this Agreement on behalf of each of its Affiliates which will utilize the Services hereunder, and (ii) shall be responsible for any breach of the terms and conditions of this Agreement by such Affiliates. An “affiliate” means any entity under the control of Customer where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity.

1.2 Schedules. If a schedule for provision of the Deliverables is stated in an Order Form, Lilt will make commercially reasonable efforts to adhere to such schedule. If Customer’s acts or omissions result in delays that affect Lilt’s ability to adhere to an agreed-upon schedule, such schedule will be appropriately and equitably extended.

1.3 Deliverables and Acceptance. When it believes it has appropriately completed a Deliverable, Lilt will deliver such Deliverable to Customer. Customer will accept or reject the Deliverable within five (5) days after delivery; failure to give notice of acceptance or rejection within that period will constitute acceptance. If a Deliverable is accepted, Lilt will be conclusively presumed to have met its obligations with respect to that Deliverable. If Customer properly rejects a Deliverable, Lilt will use diligent commercial efforts to promptly correct the failures properly specified in the rejection notice. Customer may only reject the Deliverable if the Deliverable fails in some material respect to meet the requirements stated in the applicable Order Form; Customer’s rejection notice must provide a detailed description of any such failures. When it believes that it has made the necessary corrections, Lilt will again deliver the Deliverable to Customer and the acceptance/rejection/correction provisions above shall be reapplied until the Deliverable is accepted; provided, however, that upon the fourth or any subsequent rejection, Lilt may terminate the relevant Order Form upon five (5) days’ prior, written notice unless the Deliverable is accepted during the notice period. If Customer identifies a failure with a Deliverable and Lilt can show that the failure was caused by something other than Lilt’s acts or omissions, Customer will pay Lilt for any related services performed to fix such Deliverable.

1.4 Assistance. Customer will provide all assistance and cooperation reasonably necessary to permit Lilt to perform the Services (including but not limited to any tasks stated on an Order Form). Customer acknowledges and agrees that if it does not provide such assistance and cooperation, Lilt’s ability to provide the Services may be impaired, which may result in additional charges being invoiced to Customer as a result of additional time or expenses incurred by Lilt. Lilt will not be responsible for delays in the provision of Services caused solely by Customer’s failure to comply with this Agreement or any Order Form.

1.5 Lilt Personnel. Lilt will be responsible for the professional quality, technical accuracy and timely completion of Services furnished under each Order Form, including the manner and means in which such Services are rendered. Lilt will determine, and be solely responsible for, all matters governing the terms and conditions of employment of Lilt employee(s), subcontractor(s), and any other person(s) hired, retained or employed by Lilt (collectively "Lilt Personnel"). Such matters include, but are not limited to, hours, wages, working conditions, discipline, hiring and discharging, and any other terms of employment or requirements of law. Lilt will have full and exclusive direction, supervision and control of the Lilt Personnel. Lilt has sole authority to discipline and discharge Lilt Personnel.

1.6 Change Process. If either party proposes a change to an Order Form regarding the Services, such party must do so in writing and the other party will reasonably and in good faith consider and discuss such change with the proposing party (“Change Order”). Lilt will inform Customer of the cost of such Change Order and no Change Order will be considered effective unless and until either the Change Order or an amended Order Form is executed by both parties. If no Change Order or amended Order Form is executed, each party will continue performing under the unchanged Order Form. Neither party will unreasonably withhold consent to a Change Order. Customer will be responsible for the costs associated with changes made pursuant to any Change Order and/or amended Order Form. The right to submit Change Orders does not apply to Customer’s subscription to the Platform.

2. Customer Materials.

2.1 Customer Materials. Customer is the owner of certain documents, data, files, information, materials, or resources that it wishes to be translated from one language to one or more other languages (“Customer Materials”). Customer will provide the Customer Materials to Lilt for the purpose of Lilt providing the Services and the Platform (as defined below) to Customer; Customer hereby grants Lilt a limited license to use Customer Materials for the purposes of providing the Services and Platform to Customer. Customer acknowledges and agrees that Lilt will be using and relying on the Customer Materials, and Lilt will not be responsible, and Customer will be fully responsible for the accuracy or completeness of the Customer Materials.

2.2 Customer Materials Restrictions. Customer is responsible for the content of any Customer Materials and the way Customer and its Users choose to use the Platform to store or process any Customer Materials. Except for Lilt’s own obligations of confidentiality and data security hereunder, Customer is solely responsible for ensuring compliance with all applicable laws that may apply to Customer Materials, including but not limited to data privacy laws. Unless otherwise agreed to in writing by both parties, Customer may not submit any Customer Materials that include social security numbers, passport numbers, driver’s license numbers, or similar identifiers, credit card or debit card data, or any other information which may be subject to data privacy and security laws intended to protect sensitive personal information including, but not limited to, the Gramm-Leach-Bliley Act (GLBA), the Health Insurance Portability and Accountability Act (HIPAA), the Health Information Technology for Economic and Clinical Health Act (HiTECH), the Family Educational Rights and Privacy Act of 1974 (FERPA), or the Children's Online Privacy Protection Act (COPPA). Except as otherwise described herein, Lilt does not make any representations as to the adequacy of the Platform to process information which may be subject to data privacy and security laws intended to protect sensitive personal information or to satisfy any legal or compliance requirements which may apply to Customer Materials.

3. The Platform.

3.1 Platform Use and Description. Lilt is also the owner and operator of an artificial intelligence tool and online, hosted service that assists customers with translating documents and other information (the “Platform”). For Customers receiving Services from Lilt, Customer may (if directed by Lilt) use the Platform for the sole purpose of providing the Customer Materials to and receiving the Deliverables from Lilt. If purchased under an Order Form for a specified period (“Subscription Period”), Customer and its authorized employees and contractors working for the benefit of Customer (“Users”) may use and access the Platform during such Subscription Period (and any Renewal Periods, as defined below) for the purpose of translating Customer Materials.

3.2 Support. Lilt will make commercially reasonable efforts to provide basic technical support for the Platform (“Support Services”).

3.3 Use Restrictions. Customer agrees that it will not and will not allow third parties or Users of the Platform to directly or indirectly: (i) harass, threaten, impersonate or intimidate anyone; (ii) upload, post, email, transmit or otherwise provide any content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable, or makes unauthorized disclosure of confidential or proprietary information or trade secrets to the Platform; (iii) infringe, violate or misappropriate the intellectual property, publicity, privacy or other rights of any third party; (iv) violate any applicable law, rule or regulation; (v) interfere with or damage the Platform, including without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, packet or IP spoofing, forged routing or electronic mail address information, or similar methods or technology; (vi) bypass Lilt’s robot exclusion headers, interfere with the working of the Platform, or impose an unreasonable or disproportionately large load on Lilt’s infrastructure; (vii) modify, translate, copy or create derivative works based on the Platform, (viii) reverse assemble, reverse compile, reverse engineer, decompile or otherwise attempt to discover the object code, source code, non-public APIs or underlying ideas or algorithms of the Platform, except as and only to the extent this restriction is prohibited by law, (ix) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Platform available to any third party, (x) remove or obscure any copyright, trademark or other proprietary notices, legends or Lilt-branding contained in or on the Platform, or (xi) use or access the Platform to build or support and/or assist a third party in building or supporting products or services competitive to the Platform.

3.4 Customer Responsibilities. Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation, and Order Forms, (b) be responsible for the accuracy, quality and legality of Customer Materials, including the means by which Customer acquired Customer Materials, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Platform, and notify Lilt promptly of any such unauthorized access or use, and (d) be responsible for the security and confidentiality of User’s passwords and login information in its possession. Any use of the Platform in breach of the foregoing or the “Use Restrictions” section above by Customer or Users that in Lilt’s judgment threatens the security, integrity or availability of Lilt’s Services, may result in Lilt’s immediate suspension of provision of the Services and access to the Platform, however Lilt will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.

3.5 User Information. In order to sign into and use the Platform, Customer and its Users will provide Lilt with a username, password, and any other personally identifiable information reasonably requested by Lilt, which may include Users’ name, and email address, occupation, and relevant industry (“User Information”). Customer represents and warrants that it has the appropriate rights required to lawfully transfer User Information to Lilt and for Lilt to process the User Information as contemplated herein. Customer (on behalf of its Users) grants Lilt and its subcontractors the right to access, use, process, access, retrieve, copy, distribute, perform, export and display User Information, only as reasonably necessary (a) to provide the Services and Platform to Customer (including the transfer of User Information to the U.S.); (b) to prevent or address Platform, security, support or technical issues; (c) as required by law; and (d) as expressly permitted in writing by Customer.

3.6 Removal of Customer Materials from the Platform. If Customer or Lilt receives notice that Customer Materials must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or the “Use Restrictions” section above, Customer will promptly do so. If Customer does not take such action, Lilt may remove the applicable Customer Materials until the potential violation is resolved. If requested by Lilt, Customer will confirm such deletion and discontinuance of use in writing and Lilt will be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as required.

3.7 Aggregated Usage Data. As it operates the Platform, Lilt collects data pertaining to the performance of the Platform and measures of the operation of the Platform (“Aggregated Usage Data”). Notwithstanding anything else to the contrary herein, provided that the Usage Data is aggregated and anonymized, and no personal identifying information of Customer is disclosed to any third party, the parties agree that Lilt is free to use the Usage Data in any manner. Lilt owns all right, title, and interest in and to such Usage Data. For clarity, this section does not give Lilt the right to identify Customer as the source of any Usage Data.

3.8 Beta Products. Lilt may occasionally make new services or new features of its existing Platform available to Customer for evaluation (each, a “Beta Product(s)”). Beta Products will only be made available to customers that agree to test such products either in writing (email acceptable) or through the Platform. For the avoidance of doubt, whether Customer chooses to use the Beta Products is completely within Customer’s control. If Customer chooses to use a Beta Product, Customer understands and agree that Beta Products are made available on an “AS IS,” and “AS AVAILABLE” basis and without any warranties, indemnities, or support commitments of any kind.

4. Payment Obligations.

4.1 Fees. Customer will pay any fees stated on an Order Form (“Fees”). Unless otherwise stated in an Order Form, all Fees will be paid in U.S. dollars. Payment obligations are non-cancelable and, except as expressly stated in this Agreement, non-refundable. Lilt may modify its Fees or introduce new fees in Lilt’s sole discretion; however, any new or revised Fees will only become effective upon the renewal of a Subscription Period or other term stated on the Order Form and provided that Lilt has notified Customer of such new or revised Fees at least ninety (90) days prior to the end of any Subscription Period or other term stated on the Order Form.

4.2 Payment. Lilt will invoice Customer for the Fees and any other applicable fees (e.g. bank transfer fees) in accordance with the applicable Order Form. Unless otherwise stated on the Order Form, Customer agrees to pay all invoices submitted in accordance with this Agreement upon receipt of such invoice. All information that Customer provides in connection with any purchase, transaction, or monetary exchange must be accurate, complete, and current. If Customer has executed an Order Form with a Reseller, Customer will pay such Reseller (and not Lilt) in accordance with the terms of such Order Form. Notwithstanding the foregoing, Customer understands and agrees that if Customer does not pay the Reseller in accordance with the applicable Order Form, Lilt will have the right to stop providing the Services and suspend Customer’s right to use and access the Platform and to terminate this Agreement upon notice to Customer.

4.3 Taxes. Fees stated on the Order Form are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer will be responsible for paying all Taxes associated with its purchases, except for those taxes based on Lilt’s net income.

4.4 Failure to Pay. If Customer fails to pay any invoices in accordance with this this “Payment Obligations” section, and provided that Lilt gives Customer notice of such non-payment and ten (10) days (from the date of such notice) to remit the overdue amounts in full, Lilt may: (a) suspend Customer’s access to the Platform or cease providing the Services pending payment of such overdue invoices, and (b) charge a finance charge on such overdue amounts at the rate of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower. If Customer believes that Lilt has billed Customer incorrectly, Customer must contact Lilt prior to the invoice due date in order to receive an adjustment or credit. Lilt will not exercise its rights under the “Failure to Pay” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

4.5 Expenses. If Lilt will incur costs and expenses related to its performance of the Services, such costs and expenses will be stated on the applicable Order Form. Lilt will invoice Customer for such costs and expenses as stated on the applicable Order Form, or, if no invoice schedule is specified, Lilt may invoice Customer as such costs and expenses are incurred, on a monthly basis in arrears, or as otherwise reasonably determined by Lilt. Lilt’s invoices for costs and expenses owed by Customer will be paid by Customer in accordance with this “Payment Obligations” section. All expenses will be charged on a pass-through basis.

5. Confidentiality

5.1 Definition. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose business, technical or financial information relating to the Disclosing Party’s business that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (hereinafter referred to as the “Confidential Information” of the Disclosing Party). Lilt’s Confidential Information includes non-public information regarding features, functionality and performance of the Services and Platform. Customer’s Confidential Information includes the User Information and Customer Materials. This Agreement and the information in all Order Forms will be deemed the Confidential Information of both parties. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information.

5.2 Protection and Use of Confidential Information. The Receiving Party will (a) protect the Disclosing Party’s Confidential Information using the same degree of care used to protect its own confidential or proprietary information of like importance, but in any case using no less than a reasonable degree of care, (b) make diligent efforts to limit access to the Confidential Information to those employees, affiliates, subcontractors, agents, consultants, legal advisors, financial advisors, and contractors (“Representatives”) who need to know such information in connection with this Agreement and who are bound by confidentiality and non-use obligations just as protective of the Disclosing Party’s Confidential Information as the terms of this Agreement; (c) except as expressly set forth herein, will make diligent efforts not to disclose any of Disclosing Party’s Confidential Information to any third parties without the Disclosing Party’s prior written consent; and (d) will not use the Disclosing Party’s Confidential Information for any purpose other than to fulfill its obligations under this Agreement. Nothing above will prevent either party from sharing Confidential Information with prospective investors or acquirors; provided, however, that the foregoing are bound to standard confidentiality obligations.

5.3 Compelled Access or Disclosure. The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the access or disclosure.

5.4 Feedback. Customer may from time to time provide suggestions, comments, or other feedback with respect to the Services or Platform (“Feedback”). For the avoidance of doubt, Feedback will only refer to suggestions, comments or other feedback provided to Lilt specifically regarding the Services or Platform and will not include any User Information. Lilt may want to incorporate Feedback into Services or Platform and this clause provides Lilt with the necessary license to do so. Customer hereby grants to us and our assigns a royalty-free, worldwide, perpetual, irrevocable, fully transferable and sublicenseable right and license to use, disclose, reproduce, modify, create derivative works from, distribute, display, and otherwise distribute and exploit any Feedback, without obligation or restriction, except that Lilt will not identify Customer as the provider of such Feedback.

6. Data Processing. . Lilt will process any User Information and Customer Materials that Customer provides to Lilt in accordance with Lilt’s data processing addendum referencing this Agreement, if separately executed by the parties (“Data Processing Addendum”). If there is a conflict between this Agreement and the Data Processing Addendum, the Data Processing Addendum will prevail.

7. Warranties and Disclaimers.

7.1 Lilt’s Warranties. Lilt represents and warrants that (i) it will comply with all applicable federal, state and local laws and regulations of the United States with respect to its business operations under this Agreement and all applicable laws of the United States and European Union with respect to its processing and use of User Information; (ii) it will provide the Services and Support Services in a professional and workmanlike manner, and (iii) the Platform will perform, in all material respects, in accordance with any technical documentation Lilt generally publishes to its customers regarding its Platform (“Documentation”). If the Services or Platform are not provided in accordance with the foregoing warranties, Customer will promptly notify Lilt and Lilt will make commercially reasonable efforts to rectify such non-compliance; if Lilt is not able to re-perform the Services or fix the Platform to comply with the foregoing warranty within a reasonable period, Lilt will terminate this Agreement and provide Customer with a pro-refund of any unused pre-paid Fees. The foregoing remedy is Customer’s sole remedy and Lilt’ sole liability if Lilt breaches subsections (ii) or (iii) of this “Lilt’s Warranties” section.

7.2 Mutual Warranties. Each party represents and warrants that it has validly entered into this Agreement and has the legal power to do so.

7.3 Customer Warranties. Customer represents and warrants that (i) it has obtained all rights as may be required (by law or otherwise) to transfer, post, submit, and use any Customer Materials or User Information as contemplated by this Agreement; and (ii) the Customer Information and our use of it as contemplated by this Agreement and the Services will not violate any law or infringe any third-party’s rights, including but not limited to any intellectual property or privacy rights.

7.4 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED FOR ABOVE, THE SERVICES, PLATFORM AND ANY OTHER SERVICES PROVIDED BY LILT AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND LILT EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CUSTOMER ACKNOWLEDGES THAT LILT DOES NOT WARRANT THAT THE PLATFORM OR ACCESS THERETO WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN TYPES OF WARRANTIES; THE FOREGOING DISCLAIMERS WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

8. INDEMNIFICATION

8.1 Lilt's Indemnification. Lilt will defend Customer and its affiliates and its and their Users, officers, directors, and employees against any third party claim or action brought against Customer or its affiliates to the extent based on (i) the allegation that the Platform infringes such third party’s intellectual property rights (patents, utility models, design rights, copyrights and trademarks or any other intellectual property right), and (ii) a breach of this Agreement caused by the gross negligence, fraud, or willful misconduct of Lilt, and Lilt agrees to pay any settlements with respect to the foregoing indemnification obligations that Lilt agrees to in a writing signed by Lilt’s authorized officer or final judgments awarded to the third party claimant by a court of competent jurisdiction. The foregoing obligations do not apply with respect to (a) the Platform or portions or components of the Platform that are not provided by Lilt, (b) the Platform or portions or components of the Platform that are combined with other products, processes or materials that are not reasonably contemplated by Lilt or our Documentation, (d) use by the Customer of the Platform after Lilt has either provided a non-infringing application or provided an update to the Platform to make it non-infringing, (c) use of the Platform by Customer that is not in accordance with this Agreement or the Documentation.

8.2 Customer's Indemnification. Customer will defend Lilt and its officers, directors, and employees against any third party claim or action brought against Lilt to the extent based on (a) the allegation that the Customer Materials infringe such third party’s intellectual property rights or any applicable law, rule, regulation, or third-party right, including without limitation any right of privacy, or (b) Customer’s breach of this Agreement caused by Customer or any User’s gross negligence, fraud, or willful misconduct, and Customer agrees to pay any settlements with respect to the foregoing indemnification obligations that Customer agrees to in a writing signed by Customer’s authorized officer or final judgments awarded to the third party claimant by a court of competent jurisdiction.

8.3 Procedures. Each party’s obligations under this “Indemnification” section are conditioned on the party seeking to have a claim defended and settled (“Indemnified Party”) by the other party (“Indemnifying Party”) (a) providing the Indemnifying Party with prompt written notice of any claim, (b) granting the Indemnifying Party sole control of the defense and settlement of the claim, and (c) providing reasonable information and assistance to the Indemnifying Party in the defense or settlement of the claim at the Indemnifying Party’s expense. Notwithstanding anything else to the contrary in this Agreement, a party's respective obligations under the “Lilt Indemnification” and “Customer Indemnification” sections above are limited to the Indemnifying Party’s payment for the cost of defense of the third party claim incurred by the Indemnifying Party and the payment of (i) any settlements agreed to by the Indemnifying Party in a writing signed by an officer of the Indemnifying Party, or (ii) final judgments awarded to the third party claimant by a court of competent jurisdiction.

8.4 Options. If Customer’s use of the Platform has become, or in Lilt’s opinion is likely to become, the subject of any claim of infringement, Lilt may at its option and expense, (a) procure for Customer the right to continue using and receiving the Platform as set forth hereunder, (b) modify the Platform to make it non-infringing, (c) substitute a non-infringing application for the Platform that is functionally substantially the same, or (d) if Lilt, in its sole discretion, determines that options (a)-(c) are not commercially practicable, terminate this Agreement and refund Customer a pro-rata refund of any pre-paid, unused Fees for the remainder of the then-current Subscription Period.

8.5 Sole Remedy. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY IN THIS AGREEMENT, THIS “INDEMNIFICATION” SECTION STATES LILT’S ENTIRE RESPONSIBILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS UNDER THIS AGREEMENT.

9. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR (I) CUSTOMER’S BREACH OF THE “Use Restrictions” OR “Customer Responsibilities” SECTIONS, OR (II) EITHER PARTY’S OBLIGATIONS UNDER THE “Indemnification” SECTION, NEITHER PARTY WILL BE LIABLE WITH RESPECT TO ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN AN ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, FOR (A) INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (B) ANY DAMAGES BASED ON USE OR ACCESS, INTERRUPTION, DELAY OR INABILITY TO USE THE PLATFORM, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, OR LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, OR (C) ANY DAMAGES THAT IN THE AGGREGATE EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER FOR THE SERVICES OR PLATFORM THAT ARE THE SUBJECT OF THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT WHICH GIVES RISE TO SUCH DAMAGES. THESE LIMITATIONS WILL APPLY WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

10. Term and Termination.

10.1 Term and Renewal. This Agreement will become effective on the effective date of the first Order Form executed by the parties and remain in effect for the duration of each Order Form including any Subscription Periods and Renewal Periods. If the parties terminate this Agreement, it will automatically terminate all Order Forms. Each Order Form will renew as stated on such Order Form.

10.2 Termination for Cause. Either party may terminate this Agreement upon written notice to the other party if the other party materially breaches this Agreement and such breach is not cured within thirty (30) days after the non-breaching party provides written notice of such breach.

10.3 Effect of Termination. If Customer terminates this Agreement as a result of Lilt’s uncured material breach, Lilt will provide Customer with pro-rata refund any unused, prepaid Fees for the remainder of the then-current Order Form term (including any Subscription Periods or Renewal Periods). Upon any termination for cause by Lilt, Customer will pay any unpaid Fees covering the remainder of the then-current Order Form term (including any Subscription Periods or Renewal Periods) after the effective date of termination. In no event will any termination relieve Customer of the obligation to pay any Fees payable to Lilt for the period prior to the effective date of termination. Upon any termination of this Agreement, Customer will have thirty (30) days to access the Platform for the sole purpose of downloading or exporting the Customer Materials. Following such thirty (30) day period, all rights and licenses granted by Lilt hereunder will immediately terminate; Customer will no longer have the right to access or use the Platform. Immediately upon termination of this Agreement, Lilt will cease providing the Services. Except as otherwise permitted hereunder, within ninety (90) days of any termination or expiration of this Agreement, Lilt will delete Customer’s User Information and Customer Materials.

10.4 Survival. The following sections will survive any termination or expiration of this Agreement: “Aggregated Usage Data”, “Payment Obligations”, “Confidentiality”, “Disclaimer”, “Indemnity”, “Limitation of Liability”, “Term and Termination”, “Ownership”, and “General Terms”.

11. Ownership.

11.1 Customer’s Ownership. Upon payment in full of all of Lilt’s invoices for the Services, Customer will own all right, title, and interest in and to the Deliverables. Customer also owns all right, title and interest in and to the Customer Materials and User Information.

11.2 Lilt’s Ownership. Lilt owns all right, title, and interest in and to the Platform, and all updates, upgrades, bug fixes, changes, patches, or other modifications to the foregoing or derivative works of the foregoing including all intellectual property rights therein. There are no implied licenses under this Agreement; no rights are granted to Customer hereunder other than as expressly set forth herein. For the avoidance of doubt, Customer has no right to receive a copy of the software underlying the Platform. Notwithstanding anything to the contrary in this Agreement, Lilt will be free to use and employ, and does not assign, any skills, know-how, methods, concepts, or techniques of a general nature, whether acquired, gained, or learned during the performance of the Services performed under this Agreement, or from performing similar work for, or providing similar capabilities or products to others. “Skills, know-how, methods, concepts, or techniques of a general nature” will include, without limitation, information that could reasonably have been acquired in similar work performed for another.

12. General Terms.

12.1 Publicity. Provided that Customer gives its prior-written consent in each case, Lilt may identify Customer and use and display Customer’s name, logo, trademarks, or Service marks on Lilt’s website and in Lilt’s marketing materials. Customer and Lilt may also confer and agree to release one or more press releases, announcing Customer, why Customer chose Lilt, and how Customer will use Lilt. Customer will consider participating in a case study, webinar, and other joint marketing activities six to nine months post deployment.

12.2 Export Compliance. The Platform may be subject to export laws and regulations of the United States and other jurisdictions. Lilt and Customer each represent that it is not named on any U.S. government denied-party list. Customer will not permit any User to (a) access or use any Platform in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or (b) access or use the Platform in violation of any U.S. export law or regulation, (c) submit to the Platform any information that is controlled under the U.S. International Traffic in Arms Regulations, and (d) use or transfer the Platform in connection with any nuclear, chemical or biological weapons, missile technology, or military end-uses. Customer will be fully liable for any fines or penalties arising out of Customer’s breach of the foregoing.

12.3 Force Majeure. Except for Customer’s payment obligations hereunder, neither us nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-Service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, pandemics, riots, fires, acts of God, war, terrorism, and governmental action.

12.4 Changes. Customer acknowledges that the Platform is an on-line, subscription-based product, and that in order to provide improved customer experience Lilt may make changes to the Platform provided. Certain policies referenced herein may be modified from time to time upon reasonable notice to Customer to reflect process improvements or changing practices; however, Lilt agrees any such modifications will not materially decrease Lilt’s obligations or materially reduce Customer’s rights as compared to those reflected in such terms as of the Subscription Start Date of the first Order Form entered into by the parties.

12.5 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

12.6 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement; a person who is not a party to this Agreement may not enforce any of its terms under any applicable law.

12.7 Email Communications. Notices under this Agreement will be provided as follows: (a) all notices regarding the Services will be sent by email, although we may instead choose to provide notice to Customer through the Platform, (b) notices to Lilt must be sent to legal@lilt.com, and (c) all notices to Customer will be sent to the email(s) provided through the Platform. Notices will be deemed to have been duly given (a) the business day after it is sent, in the case of notices through email; and (b) the same day, in the case of notices through the Platform.

12.8 Amendment and Waivers. No modification or amendment to this Agreement will be effective unless made in writing and signed by an authorized representative of both parties. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. No waiver under this Agreement will be effective unless made in writing and signed by an authorized representative of the party being deemed to have granted the waiver.

12.9 Severability. This Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.

12.10 Assignment. Neither party will assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, we may assign this Agreement in its entirety (including all Order Forms), without the consent of Customer, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of our assets. Any purported assignment in violation of this section is void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

12.11 Governing Law and Venue. This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. The state and federal courts located in San Francisco County, California will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement or its formation, interpretation or enforcement. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorney’s fees.

12.12 Entire Agreement. This Agreement, including all referenced pages and Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. Without limiting the foregoing, this Agreement supersedes the terms of any online agreement electronically accepted by Customer or any Users. However, to the extent of any conflict or inconsistency between the provisions in this Agreement and any other documents or pages referenced in this Agreement, the following order of precedence will apply: (1) the terms of any Order Form, (2) this Agreement and (3) except as expressly stated herein, any other documents or pages referenced in this Agreement. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order, vendor onboarding process or web portal, or any other Customer order documentation (excluding Order Forms) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.