These Commercial Terms are entered into by and between Nominal, Inc. (“Nominal”), located at 506 Congress Avenue, Suite 200, Texas 78701, and Customer (defined below). These Commercial Terms, together with all Order Forms (defined below) and any applicable statements of work, are the “Agreement.” If this Agreement is accepted by an individual on behalf of a corporation, partnership, or other type of legal entity, such as through an online subscription method, the individual that accepts this Agreement on behalf of such entity represents and warrants that such individual is authorized to accept the terms of this Agreement and bind the entity to this Agreement. If Customer is an instrumentality of the U.S. federal government (“U.S. Government”), this Agreement shall bind the ordering activity as end user but shall not operate to bind a Government employee or person acting on behalf of the Government in his or her personal capacity. Nominal and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”.

1. Definitions
“Affiliate” means a company Controlled by Customer, or which is under common Control with Customer, where, “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of that company, whether through ownership of voting interests, by contract or otherwise.

“Authorized User” means an employee, or independent contractor that Customer has authorized to Use the Platform.

“Customer” means the customer set forth on the Order Form or that otherwise accepts this Agreement.

“Customer Developments” means any Customer-specific enhancements or modifications to the Platform or Software that result from Professional Services performed by Nominal for Customer and identified as such in an Order Form. Customer Developments do not include enhancements or modifications that are currently in Nominal’s development plans and/or product roadmaps. Customer Developments will be identified as such in the Order Form that sets forth the applicable Professional Services. Customer Developments do not include the Platform, Software, Nominal Confidential Information, or Nominal Materials.

“Customer Materials” means information, data, and other content that is submitted into the Platform or Software by Customer.

“Documentation” means the operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by Nominal to Customer (including any revised versions thereof) that are applicable to the Platform or Software, which may be updated from time to time at Nominal’s discretion.

“Effective Date” means the date set forth on the Order Form.

“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.

“Usage Limits” means the limits, volume or other measurement or conditions of permitted Use for the applicable Platform or Software as set forth in the applicable Order Form, including, but not limited to, any limits on the number of Authorized Users permitted to Use the Platform or Software, volume of transactions that may be processed, or processing environments, based on Customer’s subscription tier.

“Nominal Materials” means the Platform, Software, the underlying software provided in conjunction with the Platform and Software, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Platform or any Professional Services, and Documentation, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.

“Order Form” means a mutually executed order form or other mutually agreed upon ordering document, which references this Agreement and sets forth the applicable Platform, Software and/or Professional Services to be provided by Nominal. If Customer subscribed to the Platform or Software online then Order Form refers to the Platform, Software and/or related items specified by the Parties in that document.

“Person” means any individual, corporation, partnership, trust, limited liability company, association, governmental authority or other entity.

“Professional Services” means the implementation, integration, customization, audit, training and/or other professional services, if any, to be provided by Nominal to Customer as set forth in the relevant Order Form or statement of work.

“Platform” means Nominal’s proprietary solution designed to accelerate and enhance testing of software and hardware in industrial applications, including, without limitation, data engine and analysis components, as more particularly described or identified in the applicable Order Form.

“Software” means any software provided by Nominal to Customer, either separately or as part of the Platform, that may be installed and operated on computer hardware devices that are owned or controlled by Customer, and which are described or identified in the applicable Order Form. Software includes any error corrections, enhancements and other modifications made to the Software that are generally distributed to all customers without a separate fee. Software may also include associated APIs, software development kits, as well as scripts, toolkits, libraries, reference or sample code, and similar materials.

“Use” means to use and/or access the Platform, Software, and/or Nominal Materials in accordance with this Agreement and the Documentation.

2. Platform; Software; Access and Use
A. Platform Access, Software License
Subject to the terms and conditions of this Agreement, Nominal hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section 12(a)), non-sublicensable right, during the subscription period to: (i) permit Authorized Users to Use the Platform; and (ii) download, install, reproduce (for reasonable backup purposes only), run, operate and Use the Software; (iii) and, in each case identified in (i) and (ii), solely for Customer’s internal business purposes and each in accordance with, and subject to, the Documentation and applicable Usage Limits; and (iv) as to any Software provided as a software development kit (“SDK”), to Use such SDK: (a) solely for Customer’s internal business operations in the development of an application that interoperates with the Platform and/or Software; and (b) in accordance with, and subject to, the Documentation and applicable Usage Limits. Where Customer is permitted to deploy the Platform into Customer’s own hosting environment (“On-Prem Deployment”), Customer may install, run, copy (for backup purposes only), and permit Authorized Users to Use those portions of the Software that are necessary for Customer to Use the Platform in the On-Prem Deployment: (i) solely for Customer’s internal business purposes; and (ii) in accordance with, and subject to, the Documentation and applicable Usage Limits. Customer has not relied on the presence of any feature of the Platform, or Software, or any information about possible future features.

B. Use Restrictions
Except as set forth in this Agreement, Customer will not at any time and will not permit any Person (including, without limitation, Authorized Users) to, directly or indirectly: (i) use the Nominal Materials in any manner beyond the scope of rights expressly granted in this Agreement; (ii) modify or create derivative works of the Nominal Materials, Platform, Software, or Documentation, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Nominal Materials, Platform or the Software, in whole or in part (except to the extent that reverse engineering is expressly permitted by law, (e.g. to achieve interoperability); (iv) frame, mirror, sell, resell, rent or lease the Nominal Materials, Platform or Software to any other Person, or otherwise allow any Person to use the Nominal Materials, Platform or Software for any purpose other than for the benefit of Customer in accordance with this Agreement; (v) use the Platform, Software, Nominal Materials or Documentation in any manner, or for any purpose, that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable law; (vi) interfere with, or disrupt the integrity or performance of, the Platform, Software, or any data or content contained therein or transmitted thereby; (vii) access or search the Platform (or download any data or content contained therein or transmitted thereby, including through the Software or any Software component) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools); (viii) use the Platform or Software to store, collect or host any classified information or data subject to non-U.S. export control jurisdiction; or (ix) use the Platform, Software, Documentation, Nominal Materials or any other Nominal Confidential Information for the specific purpose of benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could compete with Nominal’s products and services.

C. Authorized Users
Customer will not allow any Person other than Authorized Users to Use the Platform or Software. Customer may permit Authorized Users to Use the Platform and Software, provided that (i) the Use, including the number of Authorized Users, does not exceed the Usage Limits; and (ii) Customer ensures each Authorized User complies with all applicable terms and conditions of this Agreement and Customer is responsible for acts or omissions by Authorized Users in connection with their Use of the Nominal Materials. Customer will, and will require all Authorized Users to, use all reasonable means to secure usernames and passwords, hardware and software used to access the Platform and Software in accordance with customary security protocols, and will promptly notify Nominal if Customer knows or reasonably suspects that any username and/or password has been compromised. Each account for the Platform may only be accessed and used by the specific Authorized User for whom such account is created. Usernames and passwords for Authorized Users cannot be shared or used by more than one individual User to access the Platform and Software but may be reassigned to a new Authorized User replacing a person who no longer requires access to them.

D. Third-Party Services
Certain features and functionalities within the Platform or Software may allow Customer and its Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”) through the Nominal Materials. Third-Party Services may include, by way of example and not limitation, Gitlab, Confluence or JIRA. Nominal does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Platform, Software, or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. Customer is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Customer to use the Third-Party Services in connection with the Nominal Materials.

E. Open Source Components
The Software or Platform may contain software code and/or libraries that are made available to the public at no charge (“Open Source Components”). Open Source Components are provided “as-is,” without warranty whatsoever. Open Source Components are subject to the license terms applicable to such Open Source Component, and are not licensed under the terms of this Agreement.

F. Reservation of Rights
As between the Parties, Nominal owns, the Platform, Software, and Nominal Materials, and all rights, title and interest thereto, including, without limitation, all updates, upgrades, modifications, modules, interfaces, improvements, customizations, implementations, enhancements, and derivative works thereto and thereof and all related Intellectual Property Rights. Except for the limited right to Use the Platform, Software and Nominal Materials granted under this Agreement, no other rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise).

G. Feedback
From time to time Customer or its employees, contractors, or representatives may provide Nominal with suggestions, comments, feedback or the like with regard to the Nominal Materials (collectively, “Feedback”). Customer hereby grants Nominal a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Nominal’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Nominal Materials.

H. Professional Services
If requested by Customer, Nominal may provide to Customer certain Professional Services, including, without limitation, support, as shall be agreed upon in an Order Form or statement of work. Such Professional Services will be provided at the rates set forth and in the manner specifically described in the applicable Order Form or statement of work. Customer will provide Nominal with access to all necessary information required for Nominal to perform the Professional Services, including access to those of Customer’s employees that are required for decision-making. Customer acknowledges that delays in providing Nominal with necessary information and responses will prevent Nominal from timely performance.

I. Affiliates
Customer’s Affiliates may purchase subscriptions to the Platform or Software under the same terms as Customer, provided that Customer: (a) requires each Affiliate to agree to the terms of this Agreement; (b) enforces this Agreement in regard to each such Affiliate; and (c) is responsible for each such Affiliate’s compliance with the Agreement and payment of all fees.

J. Beta Features
The Platform and Software may include certain features that are not yet commercially available, which, in some cases, include AI Features (“Beta Features”). If Nominal makes the Beta Features available under this Agreement, Customer’s use of, and access to, such Beta Features is subject to the terms and conditions of this Agreement. Nominal is not obligated to provide Customer with access to any Beta Features. Nothing in this Agreement constitutes a promise that Nominal will release the Beta Features commercially. Customer consents to Nominal’s use of data derived from its use of the Beta Features for Nominal’s business purposes, including, but not limited to: (i) improving Nominal’s internal machine learning models and layers built on top of third-party foundation models and tools; (ii) in the performance of this Agreement; and (iii) improving Nominal’s products and services. Customer may disable any AI Features that may be provided as part of the Beta Features, in Customer’s discretion. Beta Features are provided “as-is,” without warranty whatsoever. Nominal does not promise that the Beta Features are error-free, or that any errors will be corrected. Nominal may disable Customer’s access to, and use of, the Beta Features at any time. USE OF THE BETA FEATURES IS AT CUSTOMER’S OWN RISK. NOMINAL DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE BETA FEATURES.

K. Hardware Sourcing
If Customer requests an On-Prem Deployment, and requests that Nominal procure hardware products on behalf of Customer with respect to such On-Prem Deployment, Nominal will do so under the following conditions: (a) hardware products will be listed in the Order Form; and (b) Customer acknowledges and agrees that Nominal’s procurement of any hardware products does not make Nominal a reseller or distributor of such products; and (c) all warranties with respect to the hardware products are provided by the manufacturer of the hardware products and not by Nominal. Customer will pay for all hardware products in the amounts set forth in the Order Form, and in accordance with the payment terms set forth therein. ALL HARDWARE PRODUCTS ARE PROVIDED AND PROCURED ON AN “AS-IS” BASIS, WITHOUT WARRANTY. NOMINAL HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE HARDWARE PRODUCTS. CUSTOMER’S SOLE RECOURSE WITH RESPECT TO THE HARDWARE PRODUCTS LIES WITH THE MANUFACTURER OF SUCH PRODUCTS; CUSTOMER HEREBY WAIVES ALL CLAIMS AGAINST NOMINAL WITH RESPECT TO THE HARDWARE PRODUCTS.

3. Fees and Payment
A. Fees
Customer will pay Nominal the non-refundable fees set forth in the relevant Order Form in accordance with the terms therein (“Fees”) and without offset or deduction. Unless the Customer is an instrumentality of the U.S. Government, Nominal reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the applicable subscription period, upon sixty (60) days’ prior notice to Customer (which may be sent by email). Nominal will issue invoices to Customer in accordance with the terms outlined on the Order Form. Customer will pay all amounts set forth on any such invoice no later than thirty (30) days after the date of such invoice. If Customer has signed up for automatic billing, Nominal will charge Customer’s selected payment method for any Fees on the applicable payment date, including any applicable taxes. If Nominal cannot charge Customer’s selected payment method for any reason (such as expiration or insufficient funds), Customer remains responsible for any uncollected amounts, and Nominal will attempt to charge the payment method again as Customer may update its payment method information. In accordance with local law, Nominal may update information regarding Customer’s selected payment method if provided such information by Customer’s financial institution. In the event a dispute arises involving an instrumentality of the U.S. Government Customer concerning such outstanding Fees, such dispute will be subject to the applicable disputes clause in the underlying government contract.

B. Payments
Payments due to Nominal under this Agreement must be made in U.S. dollars by ACH, wire transfer of immediately available funds to an account designated by Nominal, or such other payment method mutually agreed by the Parties. All payments are non-refundable, and neither Party will have the right to set off, discount, or otherwise reduce or refuse to pay any amounts due to the other Party under this Agreement. If Customer fails to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law, and Nominal may suspend Services until all payments are made in full. Customer will reimburse Nominal for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest. Notwithstanding the foregoing, if Customer is an instrumentality of the U.S. Government, in the event a dispute arises under this Agreement, Nominal will continue performance while the dispute is adjudicated pursuant to the applicable disputes clause in the underlying government contract.

C. Taxes
Customer is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Customer to Nominal hereunder, other than any taxes imposed on Nominal’s income. Without limiting the foregoing, in the event that Customer is required to deduct or withhold any taxes from the amounts payable to Nominal hereunder, Customer will pay an additional amount, so that Nominal receives the amounts due to it hereunder in full, as if there were no withholding or deduction. If Customer is an instrumentality of the U.S. Government, the payment of any taxes or surcharges will be governed by the terms of the underlying government contract and must be submitted to the Contracting Officer for a determination of applicability prior to invoicing, unless specifically agreed to otherwise in the government contract.

4. Confidential Information
A. Definition
As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the Nominal Materials are the Confidential Information of Nominal. However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party. Without limiting the foregoing, nothing in this Agreement will limit or restrict Nominal’s ability to use or disclose any general know-how, experience, concepts and/or ideas that Nominal or its personnel acquire or obtain in connection with the performance of Nominal’s obligations hereunder.

B. Obligations
The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except: (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement; or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.

C. Expiration
Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years after the termination of this Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive for as long as such Confidential Information remains subject to trade secret protection under applicable law.

D. Agreement
The terms and conditions of this Agreement will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes. Notwithstanding the foregoing, if the Customer is an instrumentality of the U.S. Government, the Customer’s responsibilities under this Section 4 will be governed by the Freedom of Information Act, as applicable.

5. Customer Materials; Data Rights
A. Ownership of Customer Data
Nominal acknowledges that, as between Customer and Nominal, Customer owns and retains all right, title and interest in and to all Customer Materials. If an Order Form expressly specifies that Customer Developments will be produced by Nominal as part of Professional Services, Customer shall be the owner of such Customer Developments and Nominal hereby assigns all rights, title and interest in such Customer Developments (exclusive of the Nominal Materials) to Customer. Customer hereby grants to Nominal, a perpetual, irrevocable, royalty-free right and license to use the Customer Developments for internal purposes for testing purposes and for improving the Nominal Materials.

B. License; Representations and Warranties
Customer hereby grants Nominal a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, and modify, the Customer Materials solely for the purposes of: (i) hosting, operating, improving, and providing the Platform, and Software, Professional Services and Nominal’s other related products, services and technologies; and (ii) performing Nominal’s obligations under this Agreement. Customer represents and warrants that: (i) it has obtained and will obtain and continue to have, during the Term, all necessary rights, authority and licenses for Nominal to access and use the Customer Materials (including any personal data provided therein) as contemplated by this Agreement; and (ii) Nominal’s use of the Customer Materials in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party.

C. AI Features
The Platform and Software include technologies and features that are designed to mimic or exhibit aspects of human intelligence or cognitive skills (“AI Features”). Where Customer has enabled the AI Features, Customer consents to Nominal’s processing of Customer Materials through the AI Features, and acknowledges that Usage Data will result from such Use. Customer further consents to Nominal’s use of Usage Data derived from Customer’s use of AI Features to improve Nominal’s internal machine learning models, and layers built on top of third-party foundation models and tools, in the performance of this Agreement, and to improve Nominal’s Platform, Software and other products and services. Customer may disable the AI Features in Customer’s discretion.

D. Data Security
The Parties will use commercially reasonable efforts, and take no less than industry standard precautions, to store, collect, transmit, handle and receive all data received from the other Party in connection with this Agreement, and will cooperate with one another in good faith with respect to any issue, inquiry or incident involving the security of such data to the extent necessary to comply with applicable laws, rules and regulations including, without limitation, all applicable data protection and privacy laws.

E. Usage Data
Certain technical data may be collected, transmitted, and stored by Nominal in connection with this Agreement (“Usage Data”). Usage Data will include information related to Customer’s Use of the Platform and Software, such as information about hardware devices and systems used to access and Use the Platform or Software, login information, user logs, and similar data. Usage Data will be used by Nominal for lawful purposes, including but not limited to, performing diagnostics and usage analyses, to facilitate the provision of Software updates, provide product support, Professional Services, and other services, and to improve Nominal’s products and services and develop new ones.

6. Representations and Warranties
A. Mutual
Each Party hereby represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; and (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party.

B. By Nominal
Nominal will use commercially reasonable efforts to ensure that the Platform, where hosted by Nominal, is accessible to Customer during the term of the applicable subscription. Nominal warrants that the Software, as provided by Nominal and used in compliance with this Agreement, will perform materially in accordance with the Documentation during the term of the applicable subscription. Customer’s sole remedy and Nominal’s sole obligation for a breach of the foregoing warranty is to correct any reproducible non-conformance reported to Nominal by Customer. If Nominal determines that correction of the non-conformance is not practical, then Nominal may terminate the license for the non-conforming Software and provide Customer with a pro-rated refund of applicable fees paid for the non-conforming Software.

C. Export Control
Each Party represents and warrants that in the performance of its rights and obligations under this Agreement, each Party will comply with all laws, rules, and regulations of any jurisdiction applicable to it from time to time, including those concerning or relating to export controls, trade embargoes or other similar prohibitions or restrictions on activity imposed by a U.S. or other relevant government authority, including without limitation the U.S. Office of Foreign Assets Control (“OFAC”) sanctions, International Traffic in Arms Regulations (“ITAR”) and the U.S. Export Administration Regulations (“EAR”). Should a Party learn of, or have reasons to know of, any violations of the laws, rules and regulations listed above in connection with the performance of this Agreement, it shall immediately notify the other Party. Each Party represents and warrants that it is not, nor is it 50% or more owned or otherwise controlled by a party or parties: (i) located, ordinarily resident, or legally organized in any embargoed country (presently including Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk and Luhansk regions of Ukraine); (ii) listed on or otherwise subject to any sanctions asset blocking list, export denial list, other prohibited transactions list or directive; or (iii) engaged in activities prohibited by export controls or sanctions laws or that would cause such Party to violate such controls and laws in its performance of this Agreement. Customer represents and warrants that it will not Use the Platform or Software to store, collect or host any classified information or data subject to non-U.S. export control jurisdiction. Customer represents and warrants that it has and will continue to have any and all required governmental authorization to Use the Platform, Software, any Third-Party Services, and any Customer Materials thereon.

D. Disclaimer
EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PLATFORM, SOFTWARE, PROFESSIONAL SERVICES AND NOMINAL MATERIALS ARE PROVIDED ON AN “AS IS” BASIS, AND NOMINAL MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE NOMINAL MATERIALS, THE PLATFORM, PROFESSIONAL SERVICES OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOMINAL HEREBY DISCLAIMS ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ALL WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NOMINAL DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN, OR OPERATIONS PERFORMED OR PROVIDED BY, THE PLATFORM, SOFTWARE OR PROFESSIONAL SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE OPERATION OF THE PLATFORM, SOFTWARE OR NOMINAL MATERIALS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE PLATFORM, SOFTWARE OR NOMINAL MATERIALS WILL BE CORRECTED. USE OF THE PLATFORM, SOFTWARE AND NOMINAL MATERIALS IS AT CUSTOMER’S SOLE RISK; THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH CUSTOMER. Nominal further disclaims all warranties as to the accuracy, completeness, fairness or reliability of any outputs, analyses, recommendations or results generated by the AI Features, and will have no liability for any bias, discrimination or other legally significant defects in such outputs, or for Customer’s use of or reliance on such outputs. If Customer is an instrumentality of the U.S. Government, this Section 6(d) does not limit or disclaim the warranty set forth in Federal Acquisition Regulation (“FAR”) 52.212-4(o) to the extent such clause is incorporated in the underlying government contract. In the event of a breach of warranty under Section 6, the U.S. Government reserves all rights and remedies under the contract, the Federal Acquisition Regulation or supplements, and the Contract Disputes Act, 41 U.S.C. 7101-7109.

7. Indemnification
A. Nominal Indemnification
Subject to Section 7(e), Nominal will defend Customer against any claim, suit or proceeding brought by a third party alleging that Customer’s Use of the Platform or Software infringes or misappropriates such third party’s Intellectual Property Rights (“IP Claim”), and will pay all damages and costs awarded against Customer, or agreed to in settlement by Nominal (including reasonable attorneys’ fees), resulting from such Claim.

B. Exclusions
Nominal’s obligations under Section 7(a) will not apply if the underlying third-party Claim arises from, or relates to: (i) Customer’s breach of this Agreement; (ii) the gross negligence, willful misconduct or fraud of Customer; (iii) any Customer Materials; (iv) Customer’s failure to use any enhancements, modifications, or updates to the Platform or Software that have been provided to Customer by Nominal; (v) modifications to the Platform or Software by anyone other than Nominal; (vi) combinations of the Platform or Software with software, data, hardware or materials not developed or manufactured by Nominal; or (vii) Customer’s continued Use of a prior version of the Platform or Software that has been superseded by a non-infringing version subsequently released by Nominal; or (viii) Customer’s continued Use of the Platform or Software after Nominal has requested that Customer cease Use due to a Claim.

C. IP Remedies
If Nominal reasonably believes the Platform or Software (or any component thereof) could infringe or misappropriate any third party’s Intellectual Property Rights, Nominal may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Platform, Software, or any component or part thereof to make it non-infringing; or (ii) procure the right for Customer to continue Use. Except where Customer is an instrumentality of the U.S. Government, if Nominal determines that neither of the foregoing alternatives are commercially practicable, Nominal may terminate this Agreement in its entirety, or the applicable Order Form, or with respect to the affected Platform, Software, or component, by refunding to Customer any prepaid and unused fees for the affected Platform or Software, or component, as applicable. The rights and remedies set forth in this Section 7(c) constitute Customer’s sole and exclusive remedy, and Nominal’s sole and exclusive obligation, for any Claims that the Platform, Software, or Use thereof, infringes or misappropriates any Intellectual Property Rights of any third party.

D. Customer Indemnification
Customer will defend, indemnify and hold Nominal harmless, from and against, all third party claims, and will pay all damages, costs, expenses and fees (including reasonable attorney’s fees) including costs of settlement, if applicable, arising from, or related to: (i) any Customer Materials, including, without limitation, (A) any claim that the Customer Materials infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy or other rights; or (B) any claim that the use, provision, transmission, display or storage of Customer Materials violates any applicable law, rule or regulation; (ii) any of Customer’s products or services; (iii) Use of the Platform or Software by Customer or its Authorized Users in a manner that is not in accordance with this Agreement or the Documentation, including, without limitation, any breach of the license restrictions in Section 2(b); and (iv) Use of AI Features in the Platform or Software in a manner that violates applicable laws, rules or regulations (“Claim”). If the Customer is an instrumentality of the U.S. Government, this Section 7(d) shall not apply to Customer.

E. Indemnification Procedures
The Party seeking defense and indemnity (the “Indemnified Party”) will promptly notify the other Party (the “Indemnifying Party”) of the IP Claim or Claim, as applicable, for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any IP Claim or Claim, as applicable for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any IP Claim, or Claim, applicable without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such IP Claim or Claim, as applicable, at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.

8. Limitations of Liability
A. Exclusion of Damages
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OF ANY KIND, INCLUDING BUT NOT LIMITED TO, ANY LOSS OF INCOME, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE PRODUCTS OR SERVICES, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

B. Total Liability
EXCEPT FOR: (I) A PARTY’S INDEMNITY OBLIGATIONS HEREUNDER; OR (II) CUSTOMER’S BREACH OF SECTION 2; OR (III) CUSTOMER’S OBLIGATION TO PAY FEES; OR (IV) THE FRAUD, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT OF EITHER PARTY, IN NO EVENT WILL EITHER PARTY’S TOTAL LIABILITY TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT EXCEED THE FEES PAID OR PAYABLE TO NOMINAL IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THE PARTIES AGREE THE REMEDIES IN THIS SECTION 8(b) ARE FAIR AND ADEQUATE.

C. Basis of the Bargain
THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 8 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN NOMINAL AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL OF THEIR ESSENTIAL PURPOSE.

9. Term and Termination
A. Term
The term of this Agreement begins on the Effective Date and continues until six (6) months after all Order Forms have expired or been terminated (the “Term”).

B. Termination
Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party: (i) materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or (ii) either party files a petition for bankruptcy (or becomes the subject of a bankruptcy proceeding) that is not dismissed within sixty (60) days of filing, or a party is otherwise is insolvent. If the Customer is an instrumentality of the U.S. Government, termination of the Agreement will be governed by the underlying government contract.

C. Survival
This Section 9(c) and Sections 1, 2(b), 2(f), 2(g), 2(k), 3, 4, 5(a), 5(b), 5(c), 5(d), 5(e), 6(d), 7(d), 7(e), 8, 9(d), 9(e), 11 and 12 survive any termination or expiration of this Agreement.

D. Effect of Termination
Upon expiration or termination of this Agreement: (i) the rights granted pursuant to Section 2(a) will terminate; and (ii) Customer will cease all Use of the Platform, Software and Nominal Materials, and will de-install and delete all copies of the Software and Documentation (Including all copies of the Platform and Software Used in On-Prem Deployment); and (iii) Customer will return or destroy, at Nominal’s sole option, all Nominal Confidential Information and Nominal Materials in its possession or control, including permanent removal of such Nominal Confidential Information and Nominal Materials (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in the Customer’s possession or under its control. At Nominal’s request, certify in writing to Nominal that the Nominal Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due or otherwise accrued through the effective date of expiration or termination, or entitle Customer to any refund.

E. Customer Data Deletion
Customer may request that Nominal provide Customer with the ability to download Customer Materials that exist in the Nominal-hosted Platform at the time of termination of the Agreement. Upon receipt of such request, which must be made within thirty (30) days of termination or expiration of the Agreement, Nominal will provide Customer with a copy of the Customer Materials that are stored in the Platform using standard file formats. If Customer requests non-standard file formats for its Customer Data, or if Customer requests any additional assistance in connection with the Customer Data, Customer will pay Nominal the then-current professional services rates for such assistance. If Customer does not request a copy of the Customer Materials within such thirty (30) day period, Nominal may at its sole discretion delete the Customer Materials. Notwithstanding the foregoing, Nominal may retain the Customer Materials (or any portions thereof), that are necessary for security, compliance, and legal obligations for the longer of two (2) years, or the time period required by applicable law.

10. Publicity
Subject to the provisions of Section 4, each Party shall have the right to publicly announce the existence of the business relationship between the Parties. In addition, during the Term of this Agreement, upon Customer’s written consent, Nominal may use Customer’s name, trademarks, and logos (collectively, “Customer Marks”) on Nominal’s website and in its marketing materials to identify Customer as Nominal’s customer, and for the purpose of providing the Platform, Software, and any Professional Services to Customer, provided that Nominal shall use commercially reasonable efforts to adhere to the usage guidelines furnished by Customer with respect to Customer Marks. All goodwill and improved reputation generated by Nominal’s use of the Customer Marks inures to the exclusive benefit of Customer. Nominal will use the Customer Marks in the form stipulated by Customer and will conform to and observe such standards as Customer prescribes from time to time in connection with the license granted hereunder.

11. U.S. Government Customers
The provisions of this Section 11 shall apply only if the Customer or its organization is an instrumentality or component of the U.S. Government. Customer agrees that the Platform, Software and Documentation were developed solely at private expense and are “commercial product[s]” and “commercial computer software” as those terms are defined at FAR 2.101. If a right to access the Platform, Software and Documentation is procured for or on behalf of Customer, Customer is solely granted those rights in technical data and computer software customarily provided to Nominal’s customers as described in this Agreement and as contemplated by (i) FAR 12.211 and FAR 12.212 if Customer is part of any agency other than the U.S. Department of Defense and (ii) DFARS 227.7202-3 and DFARS 252.227-7015 if Customer is part of the U.S. Department of Defense. Nominal will have no obligation to deliver additional data to the U.S. Government or any third party other than the Platform, Software and Documentation expressly identified in writing by Nominal as being provided subject to this Agreement. This Agreement, including this Section 11, applies in lieu of any other FAR, DFARS, or other clause, provision, statute, or supplemental regulation that addresses U.S. Government rights in technical data or computer software. The validity, interpretation, and enforcement of this Agreement shall be governed and construed in accordance with the federal laws of the United States and the federal common law of government contracts as established by the federal courts in the District of Columbia.

12. General
A. Assignment
Neither Party may assign or transfer this Agreement, by operation of law or otherwise, without the other Party’s prior written consent. Any attempt to assign or transfer this Agreement without such consent will be null and void. Notwithstanding the foregoing, either Party may assign or transfer this Agreement to a third party that succeeds to all or substantially all of the assigning Party’s business and assets relating to the subject matter of this Agreement, whether by sale, merger, operation of law or otherwise. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assign.

B. Force Majeure
Neither Party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events, which occur after the signing of this Agreement and which are beyond the reasonable control of the Parties, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license by the government or other governmental agencies, insofar as such an event prevents or delays the affected Party from fulfilling its obligations and such Party is not able to prevent or remove the force majeure at reasonable cost.

C. High-Risk Activities
Customer shall not engage in any activities where the use or failure of the Platform or Software would reasonably be expected to result in death, serious personal injury, or severe environmental or property damage.

D. Severability
If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.

E. Entire Agreement; Construction
This Agreement, including its Order Forms, and any applicable statements of work, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. The Parties agree that the rule of construction that a contract be construed against the drafter, if any, shall not be applied in the interpretation and construction of this Agreement.

F. Precedence
The terms of this Agreement will control over any conflicting terms or document except as follows: (i) conflicting terms in an Order Form will control but only if such terms identify the provision of this Agreement that is being modified; and (ii) if Customer is an instrumentality of the U.S. Government, and this Agreement conflicts with the terms of the underlying government contract, the applicable order of precedence clause in the government contract will govern. No terms in any preprinted form or other document, including without limitation any Customer purchase order or equivalent, will apply to, or modify this Agreement.

G. Amendment; Waiver
This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the Parties. Neither Party will have the power to bind the other or to incur obligations on the other’s behalf without such other Party’s prior written consent. Except as expressly set forth in this Agreement, the exercise by either Party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.

H. Choice of Law; Arbitration
This Agreement will be governed by and construed in accordance with the laws of the State of New York without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Except when Customer is an instrumentality of the U.S. Government, any legal action or proceeding arising under this Agreement will be subject to binding arbitration before the American Arbitration Association branch located in New York City, with three (3) arbitrators (each Party selecting an arbitrator and the third selected by the other two), provided, however, that this shall not prevent either Party from seeking equitable relief.

I. Notices
All notices required to be sent hereunder will be in writing and will be deemed to have been given when mailed by United States Postal Service Priority Mail, with delivery confirmation, or sent by email, with receipt confirmed.

J. Counterparts
This Agreement may be signed in counterparts, and electronic signatures will have the same weight and effect as original.