Cloud Service Agreement

This Cloud Services Agreement (this “Agreement”) is entered into as of the Effective Date by and between the Varicent entity described in Section 13.4 below (“Varicent”) and Customer and governs Customer’s acquisition and use of Varicent’s Cloud Service. Capitalized terms shall have the meanings set forth on Exhibit 1 (Definitions) or elsewhere in this Agreement.

By executing an Order referencing this Agreement effective as of the Order Date or by accessing Services after clicking an “I agree” (or similar) button, Customer accepts and agrees to the terms of this Agreement. If the Person accepting this Agreement is an individual acting on behalf of a company or other legal entity, such individual represents that they have the authority to accept and bind such entity to this Agreement, in which case the term “Customer” shall refer to such entity.

1. THE SOFTWARE

The Software for which the Cloud Service is provided hereunder shall be set forth in an Order or in the Online Portal with respect to Free Services. A description of the Software ordered by Customer as a Cloud Service, and the specific terms and conditions in respect of such Software, is set out in a schedule at https://www.varicent.com/legal_documents under Product Terms (a “Software Schedule”), which relevant Software Schedule(s) is/are hereby incorporated by reference.

2. ACCESS TO AND USE OF THE CLOUD SERVICE

2.1. Generally. Varicent shall make the Cloud Service available to Customer pursuant to this Agreement. Customer may allow its Subsidiaries to access and use the Cloud Service, provided that (a) Customer shall cause each such Subsidiary to abide by the terms and conditions of this Agreement and shall remain fully liable for the acts and omissions of such Subsidiaries and (b) a Subsidiary’s right to access and use the Cloud Service shall automatically terminate if it is no longer a Subsidiary of Customer.

2.2. Documentation. Varicent hereby grants to Customer a non-exclusive, non-transferable license to use and reproduce the Documentation solely for Customer’s and its Subsidiaries’ internal business purposes in connection with their use of the Cloud Service.

2.3. Usage Restrictions. Customer, its Subsidiaries, and Authorized Users shall use the Cloud Service only as expressly permitted by this Agreement and shall not, and shall not permit or authorize any other Person, directly or indirectly, to: (a) modify, copy or create any derivative work based on the Cloud Service or Documentation; (b) license, sublicense, sell, resell, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Cloud Service or Documentation available to any third party, other than Authorized Users as permitted herein; (c) decompile or reverse engineer any portion of the Cloud Service or the Software (except to the extent the foregoing restriction is prohibited under applicable Law); (d) make any use of the Cloud Service that violates applicable Law or the privacy rights, Intellectual Property Rights, or other rights of any Person; (e) circumvent the user authentication or security of the Cloud Service or any host, network, or account related thereto; (f) transmit any viruses, worms, defects, Trojan horses, or programming of a destructive nature through the Cloud Service; or (k) delete, remove, modify, obscure, fail to reproduce, or in any way interfere with any proprietary, trade secret, or copyright notice appearing on or incorporated in the Cloud Service or Documentation.

2.4. Changes to Purchased Cloud Service. Varicent may modify the Cloud Service and Documentation from time to time at Varicent’s sole discretion and such modifications shall replace prior versions. Except for modifications made to comply with applicable Law, Varicent shall not make any modifications to the Cloud Service that would degrade its security or data protection features or functionality.

2.5. Suspension of the Cloud Service. Varicent may suspend immediately Customer’s or any Authorized User’s account or access to or use of the Cloud Service if such account or activity is (a) disrupting or causing harm to Varicent’s or another Person’s computers, systems, or infrastructure or (b) is in violation of Section 2.3, applicable Law, or the Documentation; provided that, Varicent shall notify Customer of any such suspension and shall remove such suspension upon resolution to Varicent’s reasonable satisfaction of the circumstances giving rise to such suspension.

3. FEES AND PAYMENT

3.1. Fees. In consideration for Customer’s access to and use of the Cloud Service and Documentation and receipt of the Support Services, Customer shall pay to Varicent the fees for PurchasedCloud Services set forth in each Order or in the Online Portal (the “Fees”). Customer may add additional Entitlements at any time, subject to either the Parties’ execution of an Order for such Entitlements and Customer’s payment of the applicable Fees set forth in such Order, or Customer’s procurement of additional Entitlements through the Online Portal, as applicable.If Customer’s use of the Cloud Service exceeds its then-current Entitlements at any time during the applicable Subscription Term, Customer shall either purchase additional Entitlements through the Online Portal or immediately execute an Order with Varicent for the additional Entitlements to cover such past and, if necessary, future use. Use of Free Services, if applicable, are provided to Customer without charge up to the limits outlined in an Order or on the Online Portal; usage over such limits requires purchase of Entitlements in the foregoing manner directed by Varicent.

3.2. (A) Payment via Orders. All amounts due hereunder shall be due upon receipt of Varicent’s invoice and payable within thirty (30) days of the invoice date. Except as otherwise expressly set forth herein, all amounts paid under this Agreement are non-refundable.

(B) Payment via Online Portal Purchases made through the Online Portal shall be payable automatically at the time of purchase. When initiating a purchase transaction through the Online Portal, Customer authorizes Varicent to provide Customer’s payment information to third party payment services provider(s) so the transaction can be completed and the applicable payment method can be charged. Any change to pricing with respect to Cloud Services procured through the Online Portal will become effective in the billing cycle following notice of such change to Customer as provided in this Agreement. If payment is not successfully settled for any reason, Customer remains responsible for any amounts not remitted to Varicent. Except as otherwise expressly set forth herein, all amounts paid under this Agreement are non-refundable. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less (plus the costs of collection).

3.3. Taxes. All Fees are exclusive of any sales, use, customs or other duty, tax, and similar levies imposed by any authority resulting from the transactions contemplated by this Agreement (“Taxes”). All Taxes (other than taxes on Varicent’s net income), and penalties and interest relating thereto, shall be Customer’s responsibility. If Customer is required to deduct withholding tax from payments to Varicent in accordance with applicable law, Customer shall promptly send to Varicent the official tax certificate certifying such withholding tax deduction. If a deduction or withholding is so required, Customer shall pay to Varicent such additional amounts as will ensure that the net amount received and retained by Varicent equals the full amount which Varicent would have received had the deduction or withholding not been required.

3.4. Suspension for Nonpayment. Without prejudice to any other right or remedy Varicent may have, if Customer fails to pay any undisputed amounts when due and does not remedy such failure within ten (10) Business Days after the date such amounts were due, Varicent may, without liability, cease performing or making available, as applicable, some or all of the Services, including access to the Cloud Service, until full payment of all undisputed outstanding amounts is received.

3.5. Verification of Use. Varicent shall have the right to monitor Customer’s use of the Cloud Service for the purpose of verifying Customer’s compliance with this Agreement, including the purchase of sufficient Entitlements.

4. ADDITIONAL SERVICES

4.1. Support Services. Varicent shall provide Customer with technical support for Purchased Cloud Service (the “Support Services”) in accordance with the terms and conditions set out in the “Support Services Schedule" at: https://www.varicent.com/legal_documents or as otherwise outlined in the applicable Software Schedule.

4.2. Professional Services. In the event Customer requests Varicent to provide Professional Services, the provision of thereof shall be governed by the terms and conditions of the Professional Services Schedule at: https://www.varicent.com/legal_documents, which is hereby incorporated by reference in this Agreement.

5. CUSTOMER RESPONSIBILITIES

5.1. Accuracy. Varicent shall have no obligation to check any Customer Data for accuracy, adequacy, or completeness and may assume that all Customer Data uploaded to the Cloud Service or provided to Varicent is accurate, adequate, and complete as submitted.

6. DATA SECURITY AND PROCESSING

6.1. Data Security Standards. Varicent shall use, process, retain, and disclose Customer Data only as necessary for the specific purpose of providing the Cloud Service and in compliance with Varicent’s data security standards and procedures set forth at: https://www.varicent.com/legal_documents (the “Data Security Standards”). Customer acknowledges that (a) Varicent may modify the Data Security Standards from time to time at Varicent’s sole discretion and (b) such modifications shall supersede prior versions; provided that such modified Data Security Standards shall be, except to the extent required to comply with applicable Law, no less protective of the Customer Data than the Data Security Standards in place as of the Effective Date.

7. TERM AND TERMINATION

7.1. Term of Agreement. This Agreement shall be in effect as of the Effective Date and shall continue until all Subscription Terms and Trial Periods, if any, have expired or have been terminated.

7.2. (A) Renewal of Purchased Cloud Services via Order. Unless terminated as provided in this Agreement or either Party provides the other Party with at least thirty (30) days’ advance written notice prior to the end of the then-current Subscription Term that it does not wish to renew such Subscription Term, or otherwise specified in an Order, the Purchased Cloud Service will automatically renew for additional one (1) year terms. Renewed Purchased Cloud Services will be subject to the Fees agreed-upon by the Parties in the applicable renewal Order which shall be executed prior to the expiration of the then-current Subscription Term. If the then-current Subscription Term expires and Customer does not immediately and fully comply with Section 7.4, Varicent may at its option convert the Order to a ninety (90) day Subscription Term and issue an invoice for such period which shall be subject to a 30% increase to the then current Fees. The applicable Order shall continue to renew at Varicent’s option for consecutive ninety (90) day Subscription Terms and subsequent invoices will be issued until either: (i) a renewal Order is executed between the Parties; or (ii) Customer provides Varicent a with at least thirty (30) days’ advance written notice of non-renewal and immediately and fully complies with Section 7.4 following the expiry of the then-current ninety (90) day Subscription Term.

(B) Renewal of Purchased Cloud Services via Online Portal. Unless terminated as provided in this Agreement, Customer’s Subscription Term for Symon.AI Purchased Cloud Services shall continue until canceled by Customer for renewal terms equal in length to the original Subscription Term. If Customer does not want a Subscription Term to renew, Customer must cancel it before the end of the Subscription Term by providing written notice to Varicent of such cancellation via Customer’s account settings within the Online Portal. If Customer purchases a Subscription Term, Varicent (or its third-party payment processor) will automatically charge Customer each year (or month, as applicable), on the anniversary of the commencement of Customer’s Subscription Term, using the payment information Customer has provided, until Customer cancels such Subscription Term. Customer is not entitled to a refund for any Subscription Term that it cancels. If Customer cancels or terminates its Subscription Term, its right to use the Symon.AI Purchased Cloud Services will continue until the end of the then-current Subscription Term and then terminate without further charges.

7.3. Termination by Either Party. Either Party may terminate this Agreement:

    1. upon written notice if the other Party is in material breach and the breaching Party has failed to cure such breach within thirty (30) days after receipt of notice from the non-breaching Party describing the breach in reasonable detail; or
    2. with immediate effect by giving written notice to the other Party if the other Party admits in writing its inability to pay its debts as they fall due, suspends or threatens to suspend payment of its debts, applies for or consents to the appointment of a trustee, receiver, or other custodian, makes a general assignment for the benefit of its creditors, or initiates any bankruptcy, reorganization, debt arrangement, or other case or proceeding under any bankruptcy or insolvency law.

7.4. Effect of Termination. Upon the expiration or termination of this Agreement: (a) Customer shall immediately cease all access to and use of the Services and associated Varicent IP and the rights granted in this Agreement shall automatically terminate; (b) Customer shall immediately pay to Varicent all Fees and other amounts due hereunder, including under any outstanding Orders and SOWs; and (c) with respect to Purchased Services, Customer shall have a period of thirty (30) days in which to download the Customer Data from the Cloud Service, following which Varicent may delete all Customer Data from the Cloud Service.

7.5. Survival. The termination or expiration of this Agreement will not affect any provisions which by their nature survive termination, Sections 2.3 (Restrictions), 3.2 (Payment), 3.3 (Taxes), 7.3 (Effect of Termination), 7.4 (Survival) and 8 (Proprietary Rights) through 13 (Miscellaneous).

8. PROPRIETARY RIGHTS

8.1. Customer Data. As between Customer and Varicent, Customer owns and shall retain all right, title, and interest, including all Intellectual Property Rights, in the Customer Data. Customer hereby grants to Varicent a non-exclusive, worldwide, fully paid up, royalty-free license to, during the Subscription Term and the Trial Period, if applicable, use, reproduce, display, distribute, publish, perform, create derivative works from, process, transmit, provide, and store the Customer Data for the purpose of providing the Services.

8.2. Varicent IP. As between Customer and Varicent, Varicent owns and shall retain all right, title, and interest, including all Intellectual Property Rights, in and to the Software, Services, Varicent’s and its licensors’ trademarks, service marks, logos, and other indicia of origin used in connection with the Services, the Usage Data (as defined below), all proprietary information and know-how of Varicent and its licensors incorporated in or used in the provision of the Services, and all updates, modifications, improvements, and derivative works of any of the foregoing (collectively, the “Varicent IP”). All use of Varicent’s and its licensors’ trademarks, service marks, logos, and other indicia of origin hereunder shall inure to the benefit of the owner thereof. Varicent may only disclose Usage Data in the aggregate and in an anonymized fashion so that it is not possible to identify Customer or any Authorized User. “Usage Data” means all metadata and navigational, transactional, computer (e.g., IP address and browser), statistical, analytical, and similar data collected, generated, or derived from the use of the Services by Customer or its Subsidiaries or on their behalf.

8.3. Feedback. Customer grants to Varicent and its Affiliates a worldwide, perpetual, irrevocable, royalty-free, fully paid-up, license to use, copy, modify and distribute, without attribution, including by incorporating into any software or service owned by Varicent, any suggestion, enhancement request, recommendation, correction or other feedback (collectively, “Feedback”) provided by Customer or users relating to any software or service owned or offered by Varicent. For greater certainty, Customer has no obligation to provide any Feedback to Varicent.

9. REPRESENTATIONS AND WARRANTIES

9.1. By Both Parties. Each Party represents and warrants to the other Party that: (a) it has the right, power, and authority to enter into this Agreement and perform its obligations hereunder; (b) this Agreement is a legal and valid obligation binding upon it and enforceable in accordance with its terms; (c) its entry into this Agreement and performance hereof shall not result in any breach or default under, and do not conflict with, any agreement, instrument, or understanding, oral or written, to which it is a party; and (d) all of its and its Affiliates’ activities under this Agreement shall be performed in compliance with applicable Law.

9.2. By Varicent. Varicent represents, warrants, and covenants that (a) the Cloud Service will perform materially in accordance with the applicable Documentation, (b) it shall use reasonable efforts to scan the Cloud Service for any malicious code, virus, Trojan horse, malware, spyware, adware, worm, or other device, the effect of which is to permit unauthorized access to or disrupt, damage, erase, or otherwise harm, any computer, systems or software or to perform unauthorized actions on a computer system and (c) it shall provide the Services using commercially reasonable care and skill.

9.3. By Customer. Customer represents, warrants, and covenants that (a) it owns all right, title and interest in or has a license to all Customer Data, including Personal Data, and has the right to, and has obtained from all applicable Persons all rights and consents necessary to, grant to Varicent the rights granted in this Agreement, including to use, modify, process and reproduce such Customer Data in connection with the use of the Cloud Service and (b) all designs, specifications, instructions, directions, and Customer Data furnished to Varicent by Customer or their respective Representatives shall comply with all applicable requirements of any licenses between Customer and the licensor of such Customer Data.

9.4. Warranty Disclaimer. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN SECTION 9, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND VARICENT AND ITS AFFILIATES AND THIRD PARTY SUPPLIERS HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, THAT DEFECTS SHALL BE CORRECTED, THAT THE SERVICES SHALL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ACCESS TO THE SERVICES AND THEIR USE SHALL BE UNINTERRUPTED OR ERROR-FREE.

10. INDEMNITY

10.1. If a Third Party asserts a claim against one Party (including its Affiliates or its or their Representatives, the “Indemnified Party”) that the other Party (the “Indemnifying Party”) has infringed, misappropriated or violated such Third Party’s Intellectual Property Rights (an “Infringement Claim”), the Indemnifying Party shall defend the Indemnified Party against that Infringement Claim and pay all amounts finally awarded by a court against the Indemnified Party or included in a settlement; provided that the Indemnified Party promptly: (a) notifies the Indemnifying Party in writing (provided the Indemnifying Party’s indemnification obligations hereunder shall only be lessened to the extent the Indemnified Party’s failure to provide such notice materially impacts the Indemnifying Party’s ability to defend against such claim); (b) supplies information requested by the Indemnifying Party; and (c) allows the Indemnifying Party to control, and reasonably cooperates in, the defense and settlement of the Infringement Claim, including mitigation efforts. No settlement may be entered into by the Indemnifying Party on behalf the Indemnified Party without the Indemnified Party’s prior written consent (which consent shall not be unreasonably withheld, conditioned, or delayed), unless such settlement contains an unconditional release of the Indemnified Party’s liability. If there is an Infringement Claim, Varicent may in its discretion and at no cost to Customer: (i) modify the Cloud Service so that it no longer infringes any Intellectual Property Rights; (ii) obtain a license for Customer’s continued use of the Cloud Service; or (iii) terminate this Agreement and refund to Customer any prepaid Fees with respect to the Cloud Service covering the remainder of the Subscription Term after the effective date of termination. Varicent’s obligations in this Section 10.1 shall not apply to any actions or claims arising as a result of: (A) Customer’s or Authorized Users use of the Cloud Service other than as expressly authorized by this Agreement; (B) the alteration or modification of the Cloud Service by any Person other than by or on behalf of Varicent; or (C) the combination of the Cloud Service with products or services not provided or authorized by Varicent. This Section 10.1 constitutes Varicent’s entire liability, and Customer’s sole remedy, with respect to the infringement, misappropriation, or violation of Intellectual Property Rights and related claims and actions.

11. EXCLUSIONS AND LIMITATIONS ON DAMAGES

11.1. Exclusion of Certain Damages. EXCEPT FOR: (A) CLAIMS ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10 AND (B) CLAIMS THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW, IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER PARTY OR ANY OTHER PERSON UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY CONSEQUENTIAL OR INDIRECT DAMAGES, PUNITIVE OR EXEMPLARY DAMAGES, OR FOR LOSS OF GOODWILL, WORK STOPPAGE, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, LOSS OF DATA, OR BUSINESS LOSS OF PROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11.2. Limitation of Liability. EXCEPT FOR: (A) CLAIMS ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10 AND (B) CLAIMS THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW, EACH PARTY’S CUMULATIVE LIABILITY TO THE OTHER PARTY FOR ALL CLAIMS ARISING FROM OR RELATED TO THIS AGREEMENT OR ANY STATEMENT OF WORK, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY USED, SHALL NOT EXCEED THE FEES PAID BY CUSTOMER UNDER THIS AGREEMENT OR SUCH STATEMENT OF WORK, AS THE CASE MAY BE, IN THE TWELVE (12) MONTHS PRECEDING THE EVENT, ACT OR OMISSION THAT IS THE SUBJECT OF THE CLAIM. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION 11 APPLY COLLECTIVELY TO VARICENT, ITS AFFILIATES, AND THEIR RESPECTIVE REPRESENTATIVES, CONTRACTORS, AND SUPPLIERS.

12. CONFIDENTIALITY

12.1. Confidentiality. “Confidential Information” means any information or materials disclosed to or received by a Party or its Affiliates (the “Recipient”) from or on behalf of the other Party (the “Discloser”) in connection with this Agreement that is marked “confidential” or “proprietary” or would reasonably be understood by the Parties as confidential, including the terms of this Agreement. For the avoidance of doubt, the term Confidential Information does not include Customer Data; the confidentiality and security of Customer Data is addressed in the Data Security Standards.

12.2. Obligations. During the term of this Agreement and for a period of two (2) years thereafter (other than for trade secrets, which shall be indefinite), Recipient shall: (a) hold Discloser’s Confidential Information in confidence using the same degree of care as it uses to protect its own confidential information, but in no event less than a reasonable degree of care; (b) limit disclosure of Discloser’s Confidential Information to its Representatives having a need to know such Confidential Information for the purposes of this Agreement and who are bound to Recipient to protect the confidentiality of such Confidential Information in a manner that affords substantially equivalent protection as that required of Recipient hereunder; and (c) use Discloser’s Confidential Information solely for purposes of this Agreement, in accordance with this Agreement.

12.3. Exclusions. Recipient’s obligations under Section 12.2 shall not apply to information or materials that (a) are or may hereafter be in the public domain (other than through unauthorized disclosure by Recipient); (b) were disclosed or otherwise known to it without any confidentiality obligation prior to disclosure by Discloser hereunder; (c) are lawfully obtained from a third party without confidentiality restriction; or (d) were independently developed by Recipient without reference to or use of Discloser’s Confidential Information.

12.4. Legally Required Disclosures. Recipient shall not be deemed to be in breach of Section 12.2 if it discloses Discloser’s Confidential Information as may be required by law or a court of competent jurisdiction or any governmental or regulatory authority; provided that, to the extent legally permissible, Recipient provides Discloser with prior notice of its intention to make such disclosure and affords Discloser a reasonable opportunity (under the circumstances of any order of a court, government or regulatory authority or other request made upon Discloser) to seek an injunction or other appropriate remedy.

12.5. Return or Destruction of Confidential Information. Upon the expiration or termination of this Agreement or earlier upon Discloser’s written request, Recipient and its Representatives shall, at Recipient’s election, return or destroy all of Discloser’s Confidential Information provided in connection with this Agreement; provided however, that Recipient may retain copies of written or printed Confidential Information of Discloser as is necessary to comply with its own document and information retention policies or as required by applicable Law, in which case, all such retained Confidential Information shall not be used or disclosed for any purpose except as necessary to comply with applicable Law.

13. MISCELLANEOUS

13.1. Injunctive Relief. Either Party’s breach of Section 12, or Customer’s breach of any restrictions set forth in this Agreement on Customer’s use of the Services or Varicent IP, may cause immediate and irreparable harm for which money damages may not constitute an adequate remedy. In such event, the non-breaching Party shall be entitled to injunctive or other equitable relief for any such violation or incident, without proof of actual damages or requirement to post a bond.

13.2. Publicity. In consideration for any pricing discount, Varicent shall have the right to identify Customer as a customer and to use Customer’s logo in connection therewith in Varicent’s marketing materials. Except as set forth in the preceding sentence, neither Party shall use any name, trademark, trade name, service name, or service mark, whether registered or not, of the other Party without the prior written consent of the other Party, unless required by applicable Law.

13.3. Assignment. Neither Party may assign this Agreement, in whole or in part, without the prior written consent of the other Party; provided however, that Varicent may assign this Agreement to its Affiliates or in connection with the sale of substantially all of its business, whether by the sale of assets, equity, or otherwise. Any assignment or purported assignment in violation of this Section 13.3 is null and void. This Agreement shall be binding on and inure to the benefit of the Parties and their respective permitted successors and assigns.

13.4. (A) Varicent Contracting Entity, Governing Law, and Venue—General. The Varicent entity entering into this Agreement, the law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and the courts that have jurisdiction over any such dispute or lawsuit, depend on where Customer is domiciled. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

General
Customer’s domicile Varicent entity entering into this Agreement Governing law Courts with exclusive jurisdiction
United States of America, or Asia or the Pacific region Varicent US OpCo Corporation New York and controlling United States federal law Borough of Manhattan, New York, New York, USA
Canada, Peru, Argentina, Mexico, and other countries within Central or South America or Caribbean Varicent Canada OpCo Ltd. Province of Ontario and the federal laws of Canada applicable therein Toronto, Ontario, Canada
Europe (excl. Romania) or Middle East Varicent UK OpCo Limited England and Wales London, England
Romania Varicent ROM OpCo S.R.L. Romania Bucharest, Romania
Australia or New Zealand Varicent Australia OpCo Pty Ltd Australia Sydney, New South Wales, Australia
Symon.AI Purchased Cloud Services
Customer’s domicile Varicent entity entering into this Agreement Governing law Courts with exclusive jurisdiction
Canada Varicent Canada OpCo Ltd. Province of Ontario and the federal laws of Canada applicable therein Toronto, Ontario, Canada
All other locations Varicent US OpCo Corporation New York and controlling United States federal law Borough of Manhattan, New York, New York, USA

13.5. Notices. All notices and consents shall be in writing and shall be deemed to be given: (a) when actually received, if delivered personally; (b) two (2) Business Days after the date delivered to a reputable international next-day courier service; or (c) if sent by email, confirmation of receipt. Notices shall be sent to the Parties at their address set forth in the applicable Order or such other address as either Party may indicate by notice to the other Party. Notices to Varicent shall be addressed to the attention of its General Counsel. Notwithstanding the foregoing, any notices that purport to create, amend or incur obligations, terminate this Agreement, any Subscription Term or Entitlements, or any SOW, or provide notice of breach, indemnifiable claim or legal process may not be sent by email. If no Order is applicable to Free Services or Symon.AI Purchased Cloud Services, notice shall be sent to Varicent c/o Varicent Canada OpCo Ltd. 4711 Yonge St., Suite 300, Toronto, ON Canada M2N 6K8, with a copy to legal@varicent.com.

13.6. Relationship of the Parties. Varicent is an independent contractor, not Customer’s agent, partner or fiduciary, and does not undertake to perform any of Customer’s regulatory obligations or assume any responsibility for Customer’s business or operations. 

13.7. Export. Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Software or the Services. Without limiting the generality of the foregoing, Customer shall not make the Software or the Services available to any person or entity that: (i) is located in a country that is subject to a U.S. government embargo; or (ii) is listed on any U.S. government list of prohibited or restricted parties.

13.8. Waiver. A Party’s failure to exercise, delay in exercising, or partial exercise of a right or remedy provided by this Agreement or applicable Law shall not constitute a waiver of such right or remedy, a waiver of other rights or remedies, or a waiver of the further exercise of such right or remedy.

13.9. Force Majeure. If the performance by a Party (the “Affected Party”) of any of its obligations (excluding payment obligations) under this Agreement is prevented, or delayed due to any cause beyond its reasonable control, including, work stoppages, natural disasters, pandemics, catastrophic weather events, fires, riots, accidents, terrorism, war, unavailability of Third Party materials, or outages of power or communications networks (each a “Force Majeure Event”), the Affected Party shall not be liable for such non-performance, or delay as long as the Force Majeure Event and its effects on the Affected Party continue. The Affected Party shall promptly notify the other Party in writing of the Force Majeure Event and the effect on the Affected Party’s performance. The Affected Party shall employ commercially reasonable efforts to mitigate the effects of the Force Majeure Event and resume performance as soon as practicable.

13.10. Entire Agreement; Amendment.

13.10.1. This Agreement, including all Orders and SOWs, represents the Parties’ entire agreement and supersedes all prior agreements, understandings, and representations, written or oral, between the Parties with respect to its subject matter.

13.10.2. Other than Orders and SOWs, no purchase order or other ordering or confirming document or any handwritten or typewritten text which purports to modify or supplement the text of this Agreement shall add to or vary the terms of this Agreement. This Agreement and any SOW and any Order may only be amended by the written agreement of both Parties.

13.11. Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect, and the invalid, illegal or unenforceable provision shall be replaced by a valid, legal, and enforceable provision that comes closest to the Parties’ intent. The Parties shall negotiate in good faith to agree to a replacement provision that, to the extent possible, achieves the intended commercial result of the original provision.

13.12. Third Party Beneficiaries. Except as expressly set forth in this Agreement, any Person who is not a Party to this Agreement shall not be entitled to any benefit from or to enforce any right under this Agreement.

13.13. Free Services. Notwithstanding anything to the contrary in this Agreement, Customer acknowledges that Free Services: (a) may not be supported and may be changed by Varicent in its sole discretion at any time, including in a manner which reduces functionality or performance; (b) are not be subject to the same Customer audits as the Purchased Cloud Services unless an audit is stipulated by Law directly applicable to Varicent; (c) may be terminated by Varicent at any time with immediate effect with or without notice for any reason and without liability to Varicent of any kind; (d) are not subject to renewal; (e) are provided without any warranty or indemnification of any kind on the part of Varicent; (f) Section 11.2 shall not be applicable, and Varicent’s liability with respect to the Free Services shall not exceed $1,000; (g) may be assigned without Customer’s prior written consent; and (h) may be subject to additional terms and conditions, such as Varicent’s web policies. Customer is solely responsible for exporting Customer Data from the Free Services prior to termination or expiration of Customer’s access to the Free Services for any reason, provided that if Varicent terminates Customer’s access to the Free Services, except as required by Law, Varicent will provide Customer a reasonable opportunity to retrieve its Customer Data.

EXHIBIT 1 – Definitions

Affiliate” means, in relation to a Party, any Person that controls, is controlled by, or is under common control with such Party, where “control” means possessing (a) directly or indirectly, the power to direct or cause the direction of the management, policies, or operations of a Person, whether through ownership of voting securities, by contract, or otherwise or (b) the ownership of, or the power to vote, more than fifty percent (50%) of the voting stock, shares or interests of such Person.

Agreement” means this Agreement, its Exhibits, Schedules, any SOWs and Orders executed by the Parties in connection with the Services relating thereto, and all Attachments and Exhibits of any of the foregoing.

Authorized User” means Customer’s and its Subsidiaries’ employees, contractors, and agents (including temporary employees and contract employees) authorized by Customer to access and use the Cloud Service on Customer’s or any of its Subsidiaries’ behalf.

Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business in New York, New York.

Cloud Service” means the online, web-based applications of the Software provided by Varicent that are ordered by Customer under an Order executed by the Parties or on the Online Portal with respect to Free Services, if applicable.

Customer” means the Person identified as “Customer” in the first Order executed by the Parties. With respect to Free Services accessed through the Online Portal, Customer shall refer to the individual accepting this Agreement on his or her own behalf, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement.

Customer Data” means all Records, Personal Data, documents, content, and other data and information uploaded to the Cloud Service by Customer, any of its Subsidiaries, or any Authorized User.

Data Protection Laws” means the EU General Data Protection Regulation 2016/679 (GDPR), the California Consumer Privacy Act, and any other applicable similar privacy or data protection Laws.

Data Security Standards” has the meaning given in Section 6.1.

Documentation” means the documentation for the Cloud Service made available by Varicent to Customer, including training materials and user manuals, which may be amended by Varicent from time to time upon notice to Customer.

Effective Date” means the date of Customer’s acceptance of this Agreement.

Entitlement” is the method by which Varicent charges for use of the Cloud Service, on a “per Entitlement” basis. What constitutes an “Entitlement” is dependent on the ordered Software for which the Cloud Service is provided, as set forth in the relevant Software Schedule.

Fees” has the meaning given in Section 3.1.

Force Majeure Event” has the meaning given in Section 13.9.

Free Services” means Cloud Services which Varicent makes available to Customer free of charge.

Intellectual Property Rights” means all patents, copyrights, moral rights, database rights, design rights, and rights in trade secrets and know-how, all other intellectual property and proprietary rights, all other equivalent or similar rights which may arise or exist anywhere in the world, in each case, whether registered or unregistered, and all applications for any of the foregoing rights.

Law” means all applicable law, statutes, regulations and codes from time to time in force.

Online Portal” means a portal on https://www.varicent.com or other Varicent owned and operated website where Free Services or Symon.AI Purchased Cloud Services are made available by Varicent.

Order” means any order for Services or Entitlements that references this Agreement and is executed by both Parties.

Party” means each of Varicent and Customer individually and “Parties” means Varicent and Customer collectively.

Person” means any individual, corporation, partnership, joint venture, limited liability company, association, joint-stock company, trust, unincorporated organization, self-regulatory organization, regulatory authority, or other governmental authority.

Purchased Cloud Services” means Cloud Services that Varicent makes available to Customer for a fee.

Personal Data” means (a) any information that, either alone or in combination with other readily available data, identifies an individual or from which an individual is identifiable, including any name, address, financial information or social security number, and (b) any information that comprises “non-public personal information”, “personal information”, “personal data” or equivalent term, as such terms are defined in applicable Data Protection Laws.

Personnel” means a Person’s employees, independent contractors, and subcontractors.

Production Instance” means a configuration of the Cloud Service that provides full productive use of product and any add-ons listed in any Orders.

Professional Services” means the services to be provided by Varicent or any of its Affiliates to Customer set forth in any SOW.

Record” means the data that represents any physical or electronic document managed by the Cloud Service, including call detail records, invoices, plans, purchase orders, quotes, receipts, returns, sales orders, schedules, and shipments.

Representative” means a Person’s officers, directors, Personnel, attorneys, accountants, and agents.

Services” means, collectively, the Cloud Service, the Support Services, and any Professional Services.

SOW” means a statement of work for the provision of Professional Services by Varicent to Customer executed by both Parties that references this Agreement.

Software” means the object-code version of Varicent’s software programs ordered by Customer in an Order (including any related Varicent application programming interfaces) or on the Online Portal with respect to Free Services, if applicable.

Software Schedule” has the meaning given in Section 1.

Subscription Term” means the duration of the period during which Customer is entitled to use the Purchased Cloud Service, as set out in an Order.

Subsidiary” means, in relation to a Party, any Affiliate that is controlled by such Party where “control” has the meaning given in the definition of “Affiliate”.

Support Services” has the meaning given in Section 4.1.

Third Party” means a Person other than Varicent, Customer or their respective Affiliates.

Trial Period” means the duration of the period during which Customer is entitled to use the Free Services, as set out in an Order or the Online Portal.

Usage Data” has the meaning given in Section 8.2.

Varicent IP” has the meaning given in Section 8.2.

 

 

 CSA_Oct 2022