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MASTER SUBSCRIPTION TERMS AND CONDITIONS IMPORTANT – READ CAREFULLY: BY DOWNLOADING, INSTALLING AND/OR USING THE KUMO MATERIALS (AS DEFINED BELOW) IN ANY WAY AS PERMITTED BY THIS MASTER SUBSCRIPTION TERMS AND CONDITIONS (“AGREEMENT”) OR BY CLICKING ON AN “ACCEPT” BUTTON, YOU (INDIVIDUALLY AND AS THE AUTHORIZED REPRESENTATIVE OF A COMPANY OR LEGAL ENTITY) AGREE TO ALL THE TERMS OF THIS AGREEMENT WITH KUMO.AI, INC., INC., ITS AFFILIATES AND SUBSIDIARIES (COLLECTIVELY REFERRED TO AS “KUMO”) REGARDING USE OF THE KUMO MATERIALS. YOUR USE OF THE KUMO MATERIALS IS CONDITIONED EXPRESSLY ON YOUR ACCEPTANCE OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS, DO NOT DOWNLOAD, INSTALL OR OTHERWISE USE THE KUMO MATERIALS AND DO NOT CLICK “ACCEPT” BUTTON. THE INSTALLATION PROCESS WILL NOT CONTINUE AND YOU WILL NOT BE ABLE TO USE THE KUMO MATERIALS. THE EFFECTIVE DATE OF THIS AGREEMENT IS THE DATE THAT YOU ACCEPT THIS AGREEMENT BY CLICKING ON THE “I ACCEPT” BUTTON.
  1. Definitions. The following terms, when used in these Subscription Terms, will have the following meanings:
    1. “Agreement” means these Subscription Terms together with all Order Forms between Customer and Kumo and all terms referencing these Subscription Terms.
    2. “Authorized Users” means those users to which the Customer permits access and use of the Kumo Materials, for example, and not exclusion, as an End User meaning Customer’s employees, agents and contractors for their internal business purposes.
    3. “Customer Data” means data submitted by Customer to the Hosted Service and the Output.
    4. “Confidential Information” means any information of a confidential or non-public nature disclosed by one Party as a disclosing Party to the other Party as a receiving Party that is either designated as confidential or proprietary at the time of disclosure or should be reasonably understood to be confidential in light of the nature of the information or the circumstances surrounding disclosure.
    5. “Defect(s)” means reproducible errors so that the Hosted Service does not perform materially in accordance with the Documentation and this Agreement when used in accordance with this Agreement and the Documentation.
    6. “Documentation” means any digital instructions, on-line help files, technical documentation, user manuals or other materials made available by Kumo to Customer describing the specifications, features and functionality of the Hosted Service.
    7. “End User” means Customer’s use of the Kumo Materials for Customer’s internal business purposes and not for distribution or resale.
    8. “Feedback” means suggestions or comments for enhancements or improvements, new features or functionality or other feedback with respect to the Kumo Materials.
    9. “Hosted Service” means Kumo’s hosted software-as-a-service artificial intelligence platform identified on an Order Form, including all fixes, updates, upgrades and derivatives to the same made available to Customer.
    10. “Intellectual Property Rights” mean all intellectual property rights protected by law throughout the world, including all copyrights, trademark rights, patent rights (including the right to apply for), patent applications (including the right to claim priority under applicable international conventions), inventions (whether or not patentable), moral rights, know-how and trade secrets, as may exist now and hereafter come into existence.
    11. “Kumo Materials” means the Hosted Service, Documentation, Marks, software in object or source code form comprising the Hosted Service and any other materials or information (including Kumo’s Confidential Information) delivered or made available by Kumo under the Agreement, Feedback and Kumo Confidential Information, all alterations, modifications and derivatives thereof and all Intellectual Property Rights appurtenant thereto.
    12. “Marks” mean a Party’s trademarks, tradenames, logos and service marks and domain names.
    13. “Order Form” means a mutually executed order form which is governed by and incorporated into this Agreement or, if Customer purchases a subscription to use the Kumo Materials through a Kumo authorized channel partner or marketplace (collectively, “Channel Partner(s)”), the order form used by the Channel Partner which includes prices, payment, subscription term and other applicable terms will be agreed between Customer and the Channel Partner.
    14. “Order Term” means the term length specified in an applicable Order Form.
    15. “Output” means the output resulting from the processing of Customer Data on the Hosted Service, including but not limited to status and error messages, graphs or other visualizations, automatically generated hyperparameters of optimal machine learning mode architectures, evaluation metrics, data statistics and monitoring statistics excluding algorithms, artifacts, models, objects, or software that are part of the Hosted Service, used to generate any output from the Hosted Service or otherwise delivered as part of the Hosted Service.
    16. “Personal Data” is defined in and, as applicable, governed by Kumo’s Data Processing Addendum.
    17. “Taxes” mean any sales, use, withholding, VAT and other taxes or duties, however designated.
    18. “Use Limitations” means any use limitations or restrictions with respect to use of the Hosted Service as set forth in this Agreement or the applicable Order Form.
  2. Licenses; Access and Use; Services
    1. Kumo Materials. In consideration of the payment of all Fees, during the Order Term and subject to compliance with this Agreement and the Documentation, Kumo hereby grants to Customer a non-exclusive, non-sublicensable, revocable, non-transferable right to: (a) access, use and permit its Authorized Users to access and use the Kumo Material for Customer’s internal business purposes and in accordance with the Documentation and any Use Limitations and, (b) to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with Customer’s authorized use of the Hosted Service. Customer will include on any copies it makes of the Documentation the copyright notices or proprietary legends contained within the same.
    2. Marks. Each Party grants the other Party the non-exclusive, limited, non-sublicensable, revocable non-transferable right to use its Marks in accordance with the applicable guidelines and prior written approval. A Party will not seek to register or otherwise use a mark similar to the other Party’s Mark or create confusion or diminish the value of the other Party’s Marks.
    3. Accounts. Kumo will set up an account and, as applicable, sub-accounts (collectively, “Accounts”) through which Authorized Users may access and use the Hosted Service. Customer will comply with all applicable terms and conditions and will protect all unique identifiers and passwords. Customer will notify Kumo immediately of any suspected or known unauthorized access or us of its Accounts in addition to the Channel Partner as required.
    4. Customer Limitations. The rights granted herein are subject to the following restrictions. Customer and its Authorized Users will not directly or indirectly:
(a) reverse engineer, decompile, disassemble, translate, modify, create derivative works of the Kumo Materials; (b) create, derive, access, inspect, copy or reproduce or assist any third party to create, access, inspect, copy or derive data or datasets from the Kumo Materials or the source code to any software included in or comprising the Kumo Materials except Customer may reproduce, without modification or translation, for Customer’s internal use, a reasonable number of copies of the Documentation solely in connection with their authorized use of the Hosted Service and all copies will include the copyright notices or proprietary legends of the Documentation; (c) attempt to probe, scan or test the vulnerability of the Hosted Service, breach the security or authentication measures of the Hosted Service without proper authorization or willfully render any part of the Hosted Service unusable; (d) use or access the Kumo Materials to develop a product or service that is competitive with the Kumo Materials or engage in competitive analysis or benchmarking; (e) transfer, distribute, sell, resell, lease, license, sublicense, operate as a service for or on behalf of others, or otherwise assign the Kumo Materials or otherwise offer access to the Kumo Materials to a third party; (f) circumvent or otherwise interfere with any authentication or security measures of the Hosted Service, or otherwise interfere with or disrupt the integrity or performance of the Hosted Service; (g) export the Kumo Materials or technical data or any copy, portions or direct product thereof to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders; (h) transmit unlawful, infringing or harmful data or code, or any data or code that Customer is not authorized to transmit, either to or from the Hosted Service; or (i) otherwise use the Kumo Materials except as expressly permitted hereunder and in the applicable Order Form.
    1. Customer Responsibilities. Customer: (a) will prevent unauthorized access to or use of the Kumo Materials and notify Kumo promptly of any such unauthorized access or use thereof; (b) is responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the Hosted Service, including as set forth in the Documentation, and Customer will be solely responsible for its failure to maintain such equipment, software and services, and Kumo will have no liability for such failure; and, (c) is responsible for any action or inaction with respect to the access to and use of Kumo Materials by any Authorized User and will be liable for all damages relating to, arising from or due to misuse or unauthorized use of the Accounts and Kumo Materials and for any such action or inaction to the same extent as if such action or inaction had been taken by Customer. Customer will assist Kumo, at Customer’s sole cost and expense, in the investigation, remediation and required notice or reporting of all such incidents.
  1. Fees and Payment. Customer will pay Kumo the Fees plus Taxes, in United States Dollars, within 30 days of the date of Kumo’s invoice (without set-off or deduction and are non-cancellable and non-refundable except as expressly stated in this Agreement) or as agreed with the Channel Partner. Customer will not withhold any Taxes from any amounts due to Kumo. Fees not paid timely accrue late charges at the maximum permitted by law or 1.5% compounded monthly. Kumo may suspend access to and use and support of the Kumo Materials if Customer fails to pay any amounts when due and payable in addition to all legal or equitable rights and remedies. Kumo reserves the right to increase the Fees effective at the start of the next renewal term, by providing written notice of such increase to Customer at least sixty (60) days prior to the end of the then-current term.
  2. Proprietary Rights and Confidentiality
    1. Proprietary Rights. As between the Parties, Kumo exclusively owns all right, title and interest in and to the Kumo Materials, all alterations, modifications and derivatives thereof and all Intellectual Property Rights appurtenant thereto; all of which are licensed and not sold or transferred. Customer exclusively owns all right, title and interest in and to Customer’s Confidential Information, Customer Data and Output. Except as expressly granted in this Agreement, Kumo does not grant to Customer or Customer any license or rights (by implication, estoppel, or otherwise) in the Kumo Materials, and, notwithstanding anything to the contrary herein, Kumo does not grant any licenses or rights to use any source code comprising, included in, or made available on the Kumo Materials. All rights not expressly granted herein are expressly reserved by Kumo. Customer acknowledges that Kumo may but is under no obligation to monitor Customer’s use of the Hosted Service.
    2. Confidentiality. Each Party agrees that it will use the Confidential Information of the other Party solely to perform its obligations and exercise its rights under the Agreement and it will not disclose, or permit to be disclosed, the same directly or indirectly, to any third party without the other Party’s prior written consent, except as otherwise permitted hereunder. However, either Party may disclose Confidential Information: (a) to its employees, officers, directors, attorneys, auditors, financial advisors and other representatives (collectively, “Representatives”) who have a need to know and are legally bound to keep such information confidential by confidentiality obligations with respect to the Confidential Information of the other Party consistent with those of this Agreement (provided that the Party disclosing the Confidential Information to its Representatives shall be responsible for any actions of its Representatives that would breach this Section if such Representatives were party to this Agreement and bound by the same); and (b) as required by law (in which case the receiving Party will provide the disclosing Party with prior written notification thereof except to the extent prohibited or restricted, will provide the disclosing Party with the opportunity to contest such disclosure). Neither Party will disclose the terms of the Agreement, to any third party, except that either Party may confidentially disclose such terms to actual or potential lenders, investors or acquirers. The obligations of confidentiality in this Section shall not apply to information that: (i) is or becomes generally known or publicly available through no fault of the receiving Party; (ii) was properly known by the receiving Party, without restriction, prior to disclosure by the disclosing Party; (iii) was properly disclosed to the receiving Party, without restriction, by another person with the legal authority to do so; or (iv) is independently developed by the receiving Party without use of or reference to the disclosing Party’s Confidential Information. Each Party agrees to exercise due care in protecting the Confidential Information of the other Party from unauthorized use and disclosure. In the event of actual or threatened breach of the provisions of this Section or the licenses contained herein, the non-breaching Party will be entitled to seek immediate injunctive and other equitable relief, without waiving any other rights or remedies available to it. Each Party will promptly notify the other in writing if it becomes aware of any violations of the confidentiality obligations set forth in this Agreement and will assist in the investigation, remediation and required reporting or notification.
5. CUSTOMER DATA. 5.1 Customer Data. Customer retains all rights, title, and interest in and to the Customer Data. Customer agrees that: (a) Kumo may use Customer Data as necessary to make available the Hosted Service to the Customer and perform its obligations hereunder; (b) Kumo will delete and erase any Customer Data from the Hosted Service within a commercially reasonable amount of time following Customer’s request therefor; and (c) Customer acknowledges and agrees that Kumo does not and is under no obligation to keep, store, maintain, or make available to Customer any Customer Data that has been processed by the Customer’s use of the Hosted Service. 5.2 Customer Data Restrictions and Obligations. Unless expressly set forth in an Order Form or as Kumo first agrees in writing, Customer will not provide to or disclose any Personal Data (as defined by applicable law or regulation) for use in connection with Customer’s use of the Hosted Service. If Personal Data is provided to Kumo, Customer: (a) will only provide that which is necessary and minimum; (b) will ensure the Personal Data is encrypted and otherwise protected and safeguarded in accordance with applicable law and regulations and best industry standards; and, (c) will ensure it has all necessary consents and authorizations to use and grant to Kumo the right to use the Personal Data hereunder and will provide Personal Data in accordance with Kumo’s Data Processing Addendum governs.
  1. Acceptance; Support; Software Performance; Changes; Monitoring
6.1 Acceptance. The Kumo Materials are accepted once the Account is set up and the Kumo Materials are made available for Customer’s access and use in accordance with this Agreement and the applicable Documentation. Defects are addressed solely in accordance with this Section. 6.2 Service Levels. Kumo will use commercially reasonable efforts to: (a) make the Hosted Service available to Customer at least 95% of the time, excluding scheduled maintenance, measured on a collective, rolling 6-month basis; (b) prepare and implement a disaster recovery plan intended to restore service within 24 hours after any interruption of the Hosted Service; and (c) implement measures to safeguard the Hosted Service against unauthorized access to or alteration of Customer Data submitted to or stored on the Hosted Service; provided that Customer is solely responsible for maintaining the security and operability of its systems and devices used to access the Hosted Service, ensuring timely transmission of, and the accuracy, quality, integrity, and reliability of all Customer Data submitted to the Hosted Service, timely notifying Kumo of Defects and ensuring no Malware is introduced. 6.3 Support. Kumo will respond to any support requests within (1) business day and will use commercially reasonable efforts to provide Customer with maintenance and support services via telephone, electronic mail, or other electronic means. Subject to Customer’s ongoing compliance with this Agreement (including timely payment of all applicable Fees), Kumo agrees to: (i) provide reasonable technical support to Customer in response to Defects, by email or telephone, during Kumo’s normal business hours of 9am-5pm PT, excluding U.S. holidays; (ii) use commercially reasonable efforts to respond to support requests in a timely manner, and to resolve Defects by providing updates and/or workarounds to Customer, consistent with Kumo’s assigned severity level to the issues identified in such requests and their impact on Customer’s business operations, in Kumo’s reasonable discretion; and/or (iii) provide such other support services as are specified in the Order Form (if any). 6.4 Changes. Kumo reserves the right to modify or suspend use of the Hosted Service or portions thereof. Kumo may also impose temporary limits on certain features and services or restrict access to parts or all of the Hosted Service for maintenance, support or system administration purposes or in response to suspicious or actual harmful activity without notice or liability. 6.5 Monitoring. Kumo and its service providers may monitor the Hosted Service and collect statistical metadata and other information (excluding any Person Information or Confidential Information) relating to the performance and operation of the Hosted Service (“Statistical Data”) and use Statistical Data for any of the following purposes: (a) to provide support and improve the Hosted Service; (b) to address service requests; (c) to detect and address threats to the functionality, security, integrity, and availability of the Hosted Service; (d) to detect and address illegal acts or violations of Section 2; (e) marketing and sales; and, (f) for any other legal purpose (collectively (a) through (f), referred to as “Service Analysis”) and may make Service Analysis available publicly and as it deems appropriate.
  1. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE KUMO MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, KUMO SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD TITLE, NONINFRINGEMENT, OR SATISFACTORY QUALITY REGARDLESS OF WHETHER IMPOSED BY CONTRACT, STATUTE, COURSE OF DEALING, CUSTOM OR USAGE, OR OTHERWISE. KUMO DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE KUMO MATERIALS OR ACCESS TO AND USE OF THE HOSTED SERVICE, OR ANY OF THE DATA (INCLUDING CUSTOMER DATA), WILL BE CONTINUOUS, UNINTERRUPTED, TIMELY, OR ERROR-FREE. This warranty does not apply if the Kumo Materials: (a) are installed, accessed, used, repaired or maintained other than in accordance with this Agreement and the Documentation; (b) have been altered other than by Kumo; (d) to the extent use with software, hardware, networks and other services not provided by Kumo caused the Defect. Kumo is not liable for any warranties or other terms provided by Customer by Channel Partners which differ from or are in excess of the warranties provided by Kumo.
  2. Indemnification
8.1 Indemnification by Kumo. Kumo will defend or settle third party claims or causes of action against the Customer alleging that the use of the Kumo Materials as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret (“ Claim”) and will indemnify and pay damages finally awarded against Customer to the extent resulting from such Claim (or any settlement of the Claim approved by Kumo) if Kumo is promptly notified of the Claim, is granted sole control of the disposition or settlement of the Claim and cooperates in the disposition or settlement of the Claim. If the use of the Kumo Materials, in whole or in part, has become, or in Kumo’s opinion is likely to become, the subject of any claim of infringement or use is enjoined, Kumo may at its option and expense: (a) procure for Customers the right to continue using and receiving the Hosted Service; (b) replace or modify the Hosted Service to make it non-infringing (with comparable functionality); or, (c) if the options in clauses (a) or (b) are not commercially feasible, terminate the Agreement and provide a pro rata refund of any prepaid Fees paid by Customer corresponding to the terminated portion of the applicable Order Term. Kumo will have no liability or obligation with respect to any Claim to the extent such Claim is caused by: (i) compliance with designs, guidelines, plans or specifications provided by Customer; (ii) use of the Kumo Materials by Customer not in accordance with the Agreement; (iii) modification of the Kumo Materials by any party other than Kumo or a third party on Kumo’s behalf; (iv) Customer or Customers’ Confidential Information or Customer Data; (v) the combination, operation or use of the Kumo Materials with other applications, portions of applications, product(s) or services, including the Customer or Customers’ computing environment where the Hosted Service would not by itself be infringing; or (vi) Customers’ claims for the negligence or breach by Customer (clauses (i) through (vi), “Excluded Claims”). This Section states Kumo’s sole and exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property. 8.2 Indemnification by Customer. Customer will defend Kumo against any Excluded Claim made or brought against Kumo and indemnify Kumo and pay any damages finally awarded against Kumo arising from, due to or in connection with any such Excluded Claim (or any settlement approved by Kumo) including all costs and professional and attorneys’ fees. Kumo will promptly notify Customer of such Excluded Claim. Customer will have authority to defend and/or settle any such Excluded Claim (provided that Customer may not settle any Excluded Claim without Kumo’s prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Kumo of all liability).
  1. Limitation of Liability. UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL KUMO BE LIABLE TO THE CUSTOMER UNDER THE AGREEMENT FOR: (A) ANY INDIRECT, SPECIAL, INCIDENTAL, COVER, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OF GOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST CONTENT OR DATA, EVEN IF KUMO HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) ANY DAMAGES, COSTS, OR LIABILITIES IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT OR CLAIM.
10. Order Term and Termination 10.1 Term. The Order Term commences on the date stated in the Order Form and continues for the subscription period stated in the Order Form unless earlier terminated as set forth below. 10.2 Termination. Each Party may terminate the Agreement upon written notice to the other Party if there are no Order Forms then in effect for over a period of ninety (90) days. Each Party may also terminate the Agreement and all Order Forms in effect upon written notice in the event: (a) the other Party commits any material breach of the Agreement (including breaching its any of its agreements with the Channel Partner) and fails to remedy such breach within thirty (30) days after written notice of such breach or such time as required by the Channel Partner; or (b) subject to applicable law, upon the other Party’s liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other Party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days. 10.3 Effect of Termination. Survival. Upon termination of the Agreement: (a) all Fees through the Order Term are accelerated and due and payable; (b) Access to and use of the Kumo Materials is terminated and the Customer will stop using the Kumo Materials and ensure all Kumo Materials are removed from all of Customer systems and networks certifying such compliance in writing to Kumo ;(c) Sections 1, 3, 4, 5.1, 6.5, 7, 8, 9, 10, 11 and 12 survive expiration or termination of the Agreement. 11. Compliance with Law. Customer warrants that its use of the Kumo Materials will comply in all respects with all applicable laws in connection with the Agreement, including without limitation: (a) all privacy laws and regulations; (b) export laws and regulations; and, (c) the U.S. Foreign Corrupt Practices Act, the UK Bribery Act and all similar laws and regulations which prohibit offering any inducement, whether money or goods or services, to any government official, employee, candidate or party. Customer will obtain any licenses or approvals the U.S. government or any agency thereof requires prior to exporting, directly or indirectly, any technical data acquired from Kumo or utilizing that data including, by way of example and not exclusion, as applicable, complying with the Export Administration Regulations of the Bureau of Industry and Security (“BIS”) of the U.S. Department of Commerce and the economic sanctions administered by the Office of Foreign Assets Control (“OFAC”), of the U.S. Department of the Treasury and to obtain any necessary license or other authorization to export, reexport, or transfer Kumo Confidential Information or the Product(s). Without limiting the foregoing, Customer will not export, re-export, provide, or transfer the Kumo Materials to Crimea, Cuba, Iran, North Korea, Sudan, or Syria (and such countries updated), to the governments of these countries, wherever located, to any person or entity identified on BIS’s Denied Persons, Entity, or Unverified List or OFAC’s Specially Designated Nationals List or List of Consolidated Sanctions, to any end user with knowledge or reason to know that the Kumo Materials will be used for nuclear, chemical, or biological weapons proliferation, or for missile-development purposes or to any person with knowledge or reason to know that they will export, re-export, provide, or transfer the Kumo Materials on other than in compliance with the foregoing restrictions.
  1. General
12.1 Review. Upon reasonable prior notice, during the Order Term and, annually up to three (3) years thereafter, Kumo or its representative may audit Customer’s usage and records to ensure use of the Kumo Materials in compliance with this Agreement and all Fees have been paid. Any such review will be conducted during regular business hours at Customers’ offices. Customer will provide Kumo with reasonable assistance and access to information. If the review reveals underpaid fees by more than five percent (5%), Customer will pay Kumo’s reasonable costs of conducting the audit, in addition to the underpaid amount. 12.2 Equitable Relief. Breach of Customers’ confidentiality obligations or breach of applicable laws would cause substantial harm to Kumo that could not be remedied by the payment of damages alone. Accordingly, in the event of any such breach or alleged breach, and, without limiting any other remedies hereunder, Kumo is entitled to equitable and injunctive relief and award of its reasonable attorneys’ fees and costs in addition to all other remedies provided by this Agreement or available at law without the need to post bond. 12.3 Assignment; Delegation. Neither Party hereto may assign or otherwise transfer the Agreement, in whole or in part, without the other Party’s prior written consent, except Kumo may assign the Agreement without consent to a successor to all or substantially all of its assets or business related to the Agreement which agrees to be bound to this Agreement. Any attempted assignment, delegation, or transfer by either Party in violation hereof will be null and void. Subject to the foregoing, the Agreement will be binding on the Parties and their permitted successors and assigns. 12.4 Amendment; Waiver. No amendment or modification to the Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both Parties. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either Party to enforce any provision of the Agreement will not be deemed a waiver of future enforcement of that or any other provision. 12.5 Relationship. Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the Parties hereto, or be construed to evidence the intention of the Parties to establish any such relationship. Neither Party will have the authority to obligate or bind the other in any manner, and nothing herein will give rise or is intended to give rise to any rights of any kind to any third parties. 12.6 Unenforceability. If a court of competent jurisdiction determines that any provision of the Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the Parties, while the remainder of the Agreement will remain in full force and effect and bind the Parties according to its terms. 12.7 Governing Law. The Agreement will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws. The Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Except for a claim for equitable relief, any dispute arising from or relating to the subject matter of this Agreement that cannot be resolved thereby within a period of sixty (60) days after notice of a dispute has been given by one party hereunder to the other (the last day of such sixty (60) day period being herein referred to as the “Arbitration Date”), will be finally settled by arbitration in Santa Clara County, CA, using the English language in accordance with the Arbitration Rules and Procedures of the Judicial Arbitration and Mediation Services, Inc. (“JAMS”) then in effect, by a single commercial arbitrator with substantial experience in resolving complex commercial contract disputes, who may or may not be selected from the appropriate list of JAMS arbitrators. If the parties cannot agree upon the identity of the arbitrator within fifteen (15) days following the Arbitration Date, then an arbitrator will be selected on an expedited basis in accordance with the Arbitration Rules and Procedures of JAMS. Any arbitrator so selected will have substantial experience in the AI and hosted services industry. Proceeding will be conducted in the English language and the English language version of this EULA governs as any translation into another language is a courtesy. The parties may participate in arbitration in person or by video conferencing. The prevailing party in the arbitration will be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses). Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. 12.8 Notices. Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to the Parties must be sent to the respective address set forth in the signature blocks below, or such other address designated pursuant to this Section. 12.9 Entire Agreement. The Agreement, including all exhibits, attachments, and Order Forms, which are hereby incorporated by reference into and form a part of the Agreement, comprises the entire agreement between Customer and Kumo with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by Kumo, its agents or employees will create a warranty or in any way increase the scope of the warranties in the Agreement. Except as expressly stated in an Order Form, in the event of a conflict between this Agreement and the terms and conditions of an Order Form, the Agreement will control. 12.10 Force Majeure. Neither Party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations, other than any obligations to make payments hereunder, due to causes beyond its reasonable control, including earthquake, flood, pandemic, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber-attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree. 12.11 Government Terms. The Hosted Service shall constitute “commercial” computer software. Government technical data and software rights related to the Hosted Service include only those rights customarily provided to the public as defined in the Agreement. These customary commercial licenses are provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Kumo to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.