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End User License Agreement

Last Updated on November 03, 2023.

This End User License Agreement (“Agreement”) is entered into between Calypso AI Corp (“CalypsoAI”) and the company, organization or other legal entity that has purchased a license to the Licensed Software (as defined below) from CalypsoAI or a CalypsoAI authorized reseller (such company or entity that has purchased a license to the Licensed Software is hereafter referred to as the “Customer”), and governs Customer’s right to use the Licensed Software. Notwithstanding the foregoing, if Customer and CalypsoAI have executed a separate master software license agreement that is applicable to the Licensed Software, then, notwithstanding anything to the contrary herein, the terms of such master software license agreement shall govern Customer’s right to use the Licensed Software in lieu of this Agreement. Capitalized terms have the definitions set forth herein. Under this Agreement, CalypsoAI and Customer may be referred to individually as a “Party” and collectively as the “Parties”.

BY ACCEPTING THIS AGREEMENT, EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT OR USING THE LICENSED SOFTWARE, YOU (I) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, (II) REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND CUSTOMER TO THIS AGREEMENT, (III) REPRESENT AND WARRANT THAT YOU HAVE READ, UNDERSTAND AND AGREE, ON BEHALF OF YOURSELF AND THE CUSTOMER, TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, OR USE THE LICENSED SOFTWARE.

1. Definitions

1.1Authorized Reseller” means, with respect to an Order (as defined below) for the Licensed Software that Customer has placed with a CalypsoAI authorized reseller, the applicable authorized reseller of CalypsoAI. 

1.2Consecutive Users” means the total number of concurrent users that are authorized to access or use the Licensed Software simultaneously at any given time, as identified in the applicable Order and provided that all applicable Fees therefore have been received by CalypsoAI.  

1.3Documentation” means the user manuals provided by CalypsoAI to Customer (whether directly or through Authorized Reseller, as applicable) for the Licensed Software, including any updates thereto as may be provided by CalypsoAI to Customer from time to time.

1.4Licensed Software” means the executable code version of the CalypsoAI Moderator software, as further described in the Documentation, for which Customer has paid all applicable fees to CalypsoAI or a CalypsoAI Authorized Reseller, and including any bug fixes, error corrections, modifications, updates, upgrades or enhanced versions of such software that CalypsoAI may provide to Customer pursuant to this Agreement.

1.5 License Term” means one year from the Effective Date.

2. Ordering; License

2.1 Ordering. This Agreement applies to licenses for the Licensed Software that Customer has purchased by submitting an order to CalypsoAI or an Authorized Reseller (each, an “Order”). To be valid, each Order must specify the total number of Consecutive Users. For clarity, CalypsoAI will not be required, by virtue of this Agreement or otherwise, to provide to Customer any software, services, features or functionality (i) which are not expressly covered by this Agreement and a valid order that has been accepted or approved by CalypsoAI, or (ii) for which CalypsoAI has not received all applicable Fees.

2.2 License Grant. Subject to Customer’s compliance with this Agreement and CalypsoAI’s receipt of the timely payment of all applicable Fees from Customer or Customer’s Authorized Reseller, CalypsoAI hereby grants to Customer a non-exclusive, non-transferable license (“License”), during the License Term, to Use the Licensed Software and the associated Documentation solely for Customer’s internal use for its own business purposes. “Use” means that Customer may download, install the Licensed Software on devices owned or controlled by Customer, and run, access or otherwise interact with, a reasonable number of copies of the Licensed Software in accordance with Documentation, by up to the number of Consecutive Users indicated in the applicable Order, and subject to any other usage limitations set forth in the Order. Unless otherwise indicated in the Order, the Licensed Software and Documentation will be delivered electronically. Unless specifically authorized in writing in advance by CalypsoAI, Customer may not rent, lease or timeshare the Licensed Software or provide subscription services for the Licensed Software or permit others to do so. Subject to the terms of this Agreement and CalypsoAI’s receipt of the timely payment of all applicable Fees, Customer may allow its agents and independent contractors to use the Licensed Software solely for the benefit of Customer; provided, however, that Customer will be responsible for ensuring such agents and contractors comply with this Agreement and will be liable for any breach of the terms of this Agreement by such agents and contractors. Any other use of the Licensed Software by any person, business, corporation, government organization or any other entity is strictly forbidden and is a violation of this Agreement.

2.3 Open Source Software. Certain items of software may be provided to Customer with the Licensed Software that are subject to “open source” or “free software” licenses (“Open Source Software”). Third party Open Source Software is not subject to the terms and conditions of Sections 2.6 (Ownership). To the extent required by the applicable third party Open Source Software licensor, such third party Open Source Software will be governed by the applicable open source licenses and terms as made available within the “Notices” file distributed with the Licensed Software.  Nothing in this Agreement limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of the applicable license for the Open Source Software.  

2.4 Third Party Materials. The Licensed Software may be designed to operate in connection with certain third party materials and services that are not licensed directly by CalypsoAI to Customer (collectively, “Third Party Materials and Services”), including without limitation large language models that are made available by third parties. Customer’s use of any Third Party Materials and Services shall be governed solely by the terms and conditions applicable to such Third Party Materials and Services, as agreed to between Customer and the third party (“Third Party License Agreement”). CalypsoAI does not endorse, warrant or support, is not responsible for, and disclaims all liability with respect to, such Third Party Materials and Services, including without limitation, the privacy or data security practices or other policies related to such Third Party Materials and Services. 

2.5 Restrictions. Customer shall not, directly or indirectly, and shall not authorize any person, to (i) (except with notice and only to the minimum extent the restriction in this subpart (i) is not permitted by applicable law), decompile, decrypt, disassemble, reverse engineer or attempt to reconstruct or discover any source code, algorithms, architecture or other elements of the Licensed Software; (ii) translate, adapt, prepare derivative works of, or modify the Licensed Software or the Documentation; (iii) write or develop any program based upon the Licensed Software; (iv) use the Licensed Software for benchmarking purposes; (v) sell, sublicense, lease, distribute, loan, transfer, or otherwise assign or grant to third party any rights in the Licensed Software or Documentation; (vi) allow access to unauthorized persons to the Licensed Software or the Documentation; (vii) use the Licensed Software for providing any time-sharing services, software-as-a-service or “SaaS” offering, service bureau services or as part of an application services provider or other service offering; (viii) circumvent any limitations on use with respect to the Licensed Software; (ix) alter or remove any proprietary rights notices on the Licensed Software or the Documentation; or (x) otherwise use the Licensed Software or the Documentation except as expressly permitted hereunder. 

2.6 Ownership. As between CalypsoAI and Customer, CalypsoAI hereby retains all rights, title and interest, including all intellectual property rights, in and to the Licensed Software and Documentation. The Licensed Software and Documentation is licensed and not sold. As a condition of the license set forth in Section 2.2, Customer must retain all copyright and other attribution legends on all copies of the Licensed Software and Documentation. Customer hereby grants CalypsoAI an unlimited, irrevocable, perpetual, fully paid-up right and license to use and exploit without restriction all feedback or suggestions provided by or on behalf of Customer regarding the Licensed Software, including, without limitation, any information about operating results, known or suspected bugs, errors or compatibility problems, suggested modifications and user-desired features.

2.7 Reporting and Ordering Excess Use. Customer may only exceed the number of ordered Consecutive Users if Customer submits a valid order for additional Consecutive Users that is accepted or approved by CalypsoAI and pays additional License Fees. Customer agrees to promptly notify CalypsoAI or the Authorized Reseller, as applicable, in writing if its actual usage of the Licensed Software exceeds the quantity of Consecutive Users set forth in the applicable Order and in such circumstance, Customer will meet in good faith with CalypsoAI or the applicable  Authorized Reseller, as applicable, to discuss entering into an Order for additional usage on a going-forward basis. Without limiting CalypsoAI’s rights and remedies under this Agreement, in the event that Customer’s actual usage exceeds the amount Ordered, CalypsoAI may invoice Customer for any excess use at CalypsoAI’s standard rates.

3. Support

3.1 Support. Subject to CalypsoAI’s receipt of timely payment of all applicable Fees, during the License Term, CalypsoAI will use commercially reasonable efforts to furnish to Customer any maintenance or support services set forth in Attachment 1.

4. Fees; Payment

4.1 Fees. Customer will pay CalypsoAI or Authorized Reseller, as applicable, the non-refundable and non-recoupable license fees (“License Fees”) and all other fees (“Other Fees,” and together with the License Fees, the “Fees”) as set forth in the Order or invoiced to Customer in accordance with Sections 2.7 or 9.5.  

4.2 Payment Terms. Unless otherwise set forth on an Order, CalypsoAI’s invoices are due and payable in United States dollars within thirty (30) days after the invoice date, without deduction or setoff. Interest accrues from the due date at the lesser rate of 1.5% per month or the highest rate allowed by law. Customer must pay all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes based on CalypsoAI’s net income), and will indemnify CalypsoAI for all expenses incurred as a result of Customer’s failure to timely pay thereof.

5. Term and Termination

5.1 Term. This Agreement will begin on the date Customer first checks or clicks the appropriate electronic acceptance box or first uses the Licensed Software, whichever occurs first (“Effective Date”).  Unless terminated earlier in accordance with this Agreement, this Agreement will expire at the end of the License Term.

5.2 Termination. CalypsoAI may terminate this Agreement by written notice if any of the following occurs: (i) any amounts owing to CalypsoAI for Customer’s use of the Licensed Software are more than 10 days overdue; (ii) if Customer is in material breach of this Agreement, which is not cured within thirty (30) days after written notice of such breach; or (iii) Customer ceases to operate or files for bankruptcy or similar protection.

5.3 Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason: (i) all outstanding Orders and the license set forth in Section 2.2 automatically terminate, and Customer will have no further rights to the Licensed Software or Documentation; (ii) any outstanding payment obligations of Customer become due and payable immediately; (iii) each Party must promptly return or certify to the destruction of all tangible embodiments of the other Party’s Confidential Information; and (iv) Customer will delete or destroy all copies of the Licensed Software and Documentation (and certify to CalypsoAI in writing the fact of such destruction or deletion). The following provisions will survive the expiration or termination of this Agreement for any reason: Sections 2.4, 2.5, 2.6, 4, 5.3 and 6-9.

6. Confidentiality 

6.1 Definition. “Confidential Information” means any information disclosed, directly or indirectly, by one Party (“Disclosing Party”) to the other Party (“Receiving Party”) pursuant to this Agreement that either (i) is identified or labeled as “confidential”, “proprietary” or with a similar designation at the time of disclosure, or (ii) would otherwise reasonably be understood by a third party to be confidential based on the facts and circumstances surrounding disclosure or by the nature of the information itself. Without limiting the foregoing, the Licensed Software and the terms (but not the existence) of this Agreement are the Confidential Information of CalypsoAI. However, Confidential Information does not include any information which (a) is or becomes generally known and available to the public through no act or omission of the Receiving Party; (b) was already in the Receiving Party’s possession at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s contemporaneous records; (c) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure; or (d) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information.

6.2 Limited Use; Maintenance. Neither Party shall use the Confidential Information of the other Party for any purpose except to exercise its rights and perform its obligations under this Agreement. Neither Party shall disclose, or permit to be disclosed, either directly or indirectly, any Confidential Information of the other Party, except to employees or contractors of the Receiving Party with a need to know, or to its advisors, or prospective investors or purchasers, each subject to a written obligation of confidentiality that are at least as protective as those in this Agreement. Each Party will take reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use of, the Confidential Information of the other Party, and will take at least those measures that it takes to protect its own confidential information of a like nature.

6.3 Compelled Disclosure. If a Receiving Party is compelled by law or a court of competent jurisdiction to disclose the Disclosing Party’s Confidential Information, the Receiving Party will, to the extent legally permissible, promptly notify the Disclosing Party in writing and will cooperate at the Disclosing Party’s expense in seeking a protective order or other appropriate remedy. If disclosure is ultimately required, the Receiving Party may, notwithstanding Section 6.2 above, furnish only that portion of Confidential Information that is legally required and will exercise reasonable efforts to obtain assurance that it will receive confidential treatment.

7. Indemnification

7.1 IP Indemnification. CalypsoAI shall (i) defend, or at its option settle, any claim brought against Customer by a third party to the extent it alleges that the Licensed Software (excluding Third Party Materials and Services) as delivered to Customer and used as authorized in this Agreement infringes any U.S. patent, copyright or trade secret of any third party, and (ii) pay, subject to the limitations set forth in Section 8, any damages awarded in a final judgment, or amounts agreed in a monetary settlement, in any such claim defended by CalypsoAI; provided that Customer provides CalypsoAI with (i) prompt written notice of; (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by CalypsoAI in connection with the defense or settlement of, any such claim. If any such claim is brought or threatened, CalypsoAI may, at its sole option and expense: (a) procure for Customer the right to continue to use the applicable Licensed Software; (b) modify the Licensed Software to make it non-infringing; (c) replace the Licensed Software with non-infringing technology having substantially similar capabilities; or (d) if none of the foregoing is commercially practicable, terminate this Agreement.

7.2 Limitations. Notwithstanding Section 7.1, CalypsoAI will have no liability to Customer for any claim arising out of or based upon: (i) use of the Licensed Software in combination with any software, products, materials, content or services not provided by CalypsoAI, including any Third Party Materials and Services; (ii) any modification of the Licensed Software not made or authorized in writing by CalypsoAI; (iii) Customer’s failure to use the Licensed Software in accordance with this Agreement or Documentation or any use of the Licensed Software for purposes for which it was not designed or intended; (iv) Customer’s breach or alleged breach of any Third Party License Agreement; or  (v) use of any specified release of the Licensed Software after CalypsoAI notifies Customer that continued use of such release may subject Customer to a claim of infringement, if CalypsoAI provides a replacement release.

7.3 Disclaimer. THE FOREGOING PROVISIONS OF THIS SECTION 7 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF CALYPSOAI, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE LICENSED SOFTWARE OR ANY PART THEREOF.

7.4 Indemnification by Customer. Customer shall defend, indemnify and hold harmless CalypsoAI and its officers, directors, employees, consultants, affiliates, subsidiaries, and agents from and against any third party claim, loss, or damage (including reasonable attorney’s fees), arising out of or based upon anything described in subparts (i)-(v) of Section 7.2 above; provided that CalypsoAI provides Customer with (a) prompt written notice of; (b) sole control over the defense and settlement of; and (c) all information and assistance reasonably requested by Customer in connection with the defense or settlement of, any such claim. 

8. Disclaimer; Limitation of Liability 

8.1 Limited Performance Warranty. Subject to Section 2.4, CalypsoAI warrants that for a period of ninety days from the date of initial delivery (“Warranty Period”), the Licensed Software will perform in all material respects in accordance with the Documentation. In the event of a breach of the foregoing warranty, CalypsoAI’s sole obligation, and Customer’s sole and exclusive remedy, shall be for CalypsoAI to: (i) correct any failure(s) of the Licensed Software to perform in all material respects in accordance with the Documentation; or (ii) if CalypsoAI is unable to provide any such correction within thirty (30) days of receipt of notice of the applicable non-conformity, Customer may elect to terminate this Agreement. The warranty set forth in this Section 8.1 does not apply to the extent that a non-conformity results from any Third Party Materials and Services or to the extent that the applicable Licensed Software or any portion thereof is or has been: (a) altered, except by CalypsoAI; (b) used, installed, operated, repaired, or maintained other than in accordance with this Agreement and/or the Documentation; (c) subjected to misuse, negligence, or accident; (d) used on equipment, products, or systems not meeting specifications identified by CalypsoAI in the Documentation. Additionally, the warranties set forth herein only apply when notice of a warranty claim is provided to CalypsoAI during the applicable Warranty Period, and do not apply to any bug, defect or error caused by or attributable to software or hardware not supplied by CalypsoAI or that results from Customer’s failure to use any updates, new versions or new releases provided by CalypsoAI to Customer.

8.2 Malicious Code. CalypsoAI warrants that at the time the Licensed Software is made available for download, it will be free of malicious code.

8.3 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE LICENSED SOFTWARE, DOCUMENTATION AND SUPPORT ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. CALYPSOAI HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LOSS OF DATA, ACCURACY OF RESULTS, OR ARISING FROM COURSE OF DEALING OR RELIANCE. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.1, CALYPSOAI DOES NOT WARRANT THAT THE LICENSED SOFTWARE WILL BE ERROR-FREE OR WILL WORK WITHOUT INTERRUPTIONS. CALYPSOAI DOES NOT WARRANT OR SUPPORT ANY THIRD PARTY MATERIALS AND SERVICES OR ANY OTHER THIRD PARTY CONTENT OR FUNCTIONALITY. THE LICENSED SOFTWARE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE OR IN WHICH THE FAILURE OF THE LICENSED SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. CALYPSOAI SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH ACTIVITIES.

8.4 Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR EACH PARTY’S BREACH OF SECTION 6 OR CUSTOMER’S BREACH OF SECTION 2.2 OR 2.5, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, WHETHER BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF THE OTHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL CALYPSOAI’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE SUM OF THE AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. EXCEPT FOR ANY ACTION BY CALYPSOAI FOR NON-PAYMENT, NEITHER PARTY MAY BRING ANY ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MORE THAN 12 MONTHS AFTER THE DATE THE CLAIM AROSE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.

9. General Provisions

9.1 Assignment. Neither Party may assign this Agreement nor any of its rights or obligations under this Agreement without the prior written consent of the other Party, except that CalypsoAI may assign this Agreement without the written consent of Customer as part of a corporate reorganization, upon a change of control, consolidation, merger, reincorporation, sale of all or substantially all of its assets related to this Agreement or a similar transaction or series of transactions. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.

9.2 Force Majeure. Except for the obligation to pay money, neither Party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act, hacker attack, or failure of the Internet (each, a “Force Majeure Event”). The delayed Party shall give the other Party notice of such cause and shall use its reasonable commercial efforts to correct such failure or delay in performance.

9.3 Export Control. Customer acknowledges that the Licensed Software and Documentation is subject to export restrictions by the United States government and may be subject to import restrictions by certain foreign governments, and Customer agrees to comply with all applicable export and import laws and regulations related to Customer’s download, access, and use of the Licensed Software and Documentation.  Customer is now, and will remain in the future, compliant with all such export control laws and regulations, and will not export, re-export, otherwise transfer any Licensed Software or Documentation or disclose any Licensed Software or Documentation to any person contrary to such laws or regulations. Customer acknowledges that remote access to the Licensed Software and Documentation may in certain circumstances be considered a re-export of such Licensed Software and Documentation, and accordingly, may not be granted in contravention of any applicable export control laws and regulations. Customer represents that Customer is not sanctioned or prohibited by the U.S. government or any other public authority from entering into this Agreement or receiving the Licensed Software or Documentation on any basis including, but not limited to: (i) appearance on the List of Specially Designated Nationals and Blocked Persons or the Consolidated Sanctions List administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control, or the Denied Persons List, Entity List or Unverified List administered by the Commerce Department’s Bureau of Industry and Security; (ii) being owned or controlled, directly or indirectly, by any one or more person covered by foregoing clause (i); or (iii) acting on behalf of any person covered by foregoing clause (i) or (ii).  Customer also agrees not to use or provide the License Software for any prohibited end use, including to support any nuclear, chemical, or biological weapons proliferation, or missile technology, without the prior permission of the United States government.  

9.4 Government Rights. The Licensed Software and Documentation is deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable.  Any use, modification, reproduction release, performance, display or disclosure of the Licensed Software and Documentation by the U.S. Government shall be governed solely by the terms and conditions of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement.

9.5 Inspection Rights. Customer shall maintain complete and accurate records of its use of the Licensed Software.   During the term, CalypsoAI may, upon written notice or other communication to Customer’s compliance officer, request Customer or its compliance officer to verify in writing that Customer remains in compliance with this Agreement, including without limitation, verification regarding any restrictions on use of the Licensed Software. In the event that Customer or its compliance officer reports that Customer has used the Licensed Software in excess of the applicable quantitative limitations on use set forth in the applicable Order, then without limiting CalypsoAI’s other rights and remedies hereunder, CalypsoAI may invoice Customer for such excess usage at CalypsoAI’s standard rates and Customer agrees to promptly pay such invoiced amount in accordance with Section 4. 

9.6 Governing Law. This Agreement shall be governed by and construed under the laws of the State of Delaware without reference to conflict of laws principles. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in Delaware, and the Parties hereby agree and consent to the exclusive jurisdiction and venue of these courts. If either Party breaches or threatens to breach the provisions of Sections 2.2, 2.5, or 6, each Party agrees that the non-breaching Party will have no adequate remedy at law and is therefore entitled to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages.

9.7 Miscellaneous. This Agreement (together with the Attachment and any Order entered into directly with CalypsoAI) is the sole agreement of the Parties concerning the subject matter hereof, and it supersedes all prior agreements and understandings with respect to said subject matter. The following order of precedence shall apply: this Agreement, any Order. For clarity, the terms of this Agreement prevail over any terms or conditions contained in any other documentation and expressly exclude any of Customer’s general terms and conditions contained in any purchase order or other document issued by Customer. No terms of any purchase order, acknowledgement or other form provided by Customer will modify this Agreement, regardless of any failure of CalypsoAI to object to such terms. Any ambiguity in this Agreement shall be interpreted equitably without regard to which Party drafted hereof. This Agreement may only be amended by a writing signed by both Parties. This Agreement may be executed in counterparts. The headings in this Agreement are inserted for convenience and are not intended to affect the interpretation of this Agreement. Any required notice shall be given in writing by customary means with receipt confirmed at the address of each Party set forth below, or to such other address as either Party may substitute by written notice to the other, with an email copy to the emails below. Notices will be deemed to have been given at the time of actual delivery in person, 1 day after delivery to an overnight courtier service, or 3 days after deposit in the U.S. mail. The relationship between the Parties shall be that of independent contractors. Waiver of any term of this Agreement or forbearance to enforce any term by either Party shall not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of this Agreement. Any provision found to be unlawful, unenforceable or void shall be severed from the remainder of this Agreement, and the Agreement will continue in full force and effect without said provision.

ATTACHMENT 1

SUPPORT TERMS

These Support Terms will apply to the Licensed Software solely for the duration of the License Term.  

1. DEFINITIONS. All capitalized terms used herein but not defined have the meaning set forth in the Agreement.

a.Release” means any Update or Upgrade if and when such Update or Upgrade is made available to Customer by CalypsoAI under the terms set forth herein.

b.Update” means a version of the Licensed Software that is denoted by a version number that is to the right of the left-most decimal point (e.g., from version x.1 to version x.2 or from version x.x.1 to version x.x.2), including all minor bug fixes, improvements, enhancements, or modifications.

c.Upgrade” means a version of the Licensed Software that is denoted by a version number that is to the left of the left-most decimal point (e.g., from version 1.x to version 2.x), including all versions that materially improve the functional capabilities of the Licensed Software for which CalypsoAI charges additional license fees.

2. SUPPORT SERVICES. Provided that Customer is in compliance with the terms and conditions of the Agreement, during the License Term for the applicable Order to which these Support Terms are attached, CalypsoAI will provide the following support for the Licensed Software (the “Support Services”): (a) answer technical questions concerning functions and features of the Licensed Software; and (b) provide issue classification, analysis and corrective efforts for the Licensed Software. CalypsoAI will also provide to Customer during the License Term Updates to the Licensed Software and revisions to Documentation generally released by CalypsoAI to its other customers receiving the same level of Support Services. CalypsoAI may, from time to time, in its sole discretion, offer Upgrades to Customer at CalypsoAI’s then-current standard Upgrade fee. 

3. DESIGNATION OF CUSTOMER CONTACT. Customer will designate two of its employees as a primary contact for Support Services (each, a “Customer Contact”). Customer may redesignate any Customer Contact provided that Customer notifies CalypsoAI in writing. The Customer Contact will be responsible for contacting CalypsoAI for any support-related issues arising from the use of the Licensed Software (“Customer Request”) and for working with CalypsoAI to resolve such issues. Customer will authorize its Customer Contact to receive any Release provided to Customer in accordance with the terms hereof.

4. REMOTE DIAGNOSTICS. Customer agrees to allow CalypsoAI reasonable remote access to Customer’s computer system and software in order to provide the Support Services pursuant to this Agreement.

5. EMAIL SUPPORT. During the applicable License Term, the Customer Contact(s) may contact CalypsoAI technical support for any Customer Request for Support Services via email at support@calypsonew.garymelican.com, or via other methods of electronic communication as made available by CalypsoAI from time to time, during the hours of 9 a.m. to 5 p.m. Eastern standard time, Monday through Friday, excluding holidays (“Normal Business Hours”). CalypsoAI will inform Customer in writing of any changes to this email address.  

6. ISSUE CLASSIFICATION. CalypsoAI will use commercially reasonable efforts to resolve all verified, reproducible errors in the Licensed Software that are reported by a Customer Contact in accordance with the terms hereof. To ensure that Customer Requests are addressed on the basis of urgency, CalypsoAI will assign priority levels to each Customer Request made by Customer as follows.

a. Priority Level 1: Critical Business Impact. Customer’s use of the Licensed Software is stopped or so severely degraded such that Customer cannot reasonably continue work related to the Licensed Software and no workaround is available. CalypsoAI will respond within one (1) hour of notification during CalypsoAI’s Normal Business Hours and will engage CalypsoAI staff until an acceptable workaround is achieved.

b. Priority Level 2: Substantial Business Impact. Important Licensed Software features are unavailable with no workaround available. Customer’s use of the Licensed Software is continuing; however, there is a serious impact on Customer’s productivity. CalypsoAI will respond within four hour(s) of notification during CalypsoAI’s Normal Business Hours and will engage development staff until an acceptable workaround is achieved.  

c. Priority Level 3: Some Business Impact. Important Licensed Software features are unavailable, but a workaround is available, or less significant Licensed Software features are unavailable with no workaround. Customer’s work related to the Licensed Software has a minor loss of operational functionality. CalypsoAI will provide an initial response within twenty-four (24) hours of notification during CalypsoAI’s Normal Business Hours and will provide a workaround, if appropriate, and Licensed Software enhancements for inclusion in a subsequent Update.

d. Priority Level 4: Minimal Business Impact. Customer requests information, an enhancement, or Documentation clarification regarding the Licensed Software but there is no or minimal impact on the operation of the Licensed Software. Customer’s use of the Licensed Software is continuing and no work is being materially impeded at the time. CalypsoAI will provide an initial response regarding the requested information or Documentation clarification within forty-eight (48) hours of notification during CalypsoAI’s Normal Business Hours. CalypsoAI will have no obligation to develop or provide Licensed Software enhancements, but may, in CalypsoAI’s sole discretion, consider any suggested enhancement for inclusion in a subsequent Update or Upgrade.

7. ELECTRONIC DELIVERY. Customer shall provide all information and documents reasonably requested by CalypsoAI in order to effect delivery of Updates or Upgrades of the Licensed Software, revisions to Documentation, fixes or workarounds.  CalypsoAI may provide support-related information (“Support Information”), including Updates or Upgrades of the Licensed Software, revisions to Documentation, fixes or workarounds, in an electronic, downloadable format on CalypsoAI’s website, at calypsoai.zendesk.com (the “CalypsoAI Website”). The Customer contact will be notified electronically that the Support Information is available. Customer agrees that upon availability of the Support Information on the CalypsoAI Website, CalypsoAI will have fulfilled its obligation to deliver the support information to Customer. The Customer contact will distribute the Support Information as necessary. Customer is responsible for obtaining access to the internet and retrieving the Support Information from the CalypsoAI website. The Support Information will be deemed accepted upon delivery.  

8. EXCLUSIONS FROM SUPPORT SERVICES. Support Services will not include services requested as a result of, or with respect to: (a) installation or implementation of the Licensed Software, or any use of the Licensed Software that deviates from the Documentation; (b) any alteration, adaptation, or modification to the Licensed Software not made by or under the supervision or direction of CalypsoAI; (c) Customer’s negligence, hardware malfunction or other causes beyond the reasonable control of CalypsoAI; (d) any accidental or intentional damage to the Licensed Software; (e) any third party materials; (f) any Open Source Software, Third Party Materials and Services, beta software, software that CalypsoAI makes available for testing or demonstration purposes, temporary software modules or software for which CalypsoAI does not receive a license fee; (g) any breach or noncompliance with the Order or the Agreement by Customer; (h) any Force Majeure Event; and (i) Licensed Software for which all required Updates have not been implemented. In the event that CalypsoAI releases an Upgrade which Customer elects not to purchase, CalypsoAI shall continue to support the version used by Customer for the remainder of the then-current License Term, but shall have no obligation to continue to support such version for any subsequent license term

9. CUSTOMER OBLIGATIONS. Customer will try to recreate the issue that is the subject matter of the Customer Request, inform CalypsoAI as soon as possible of such issue, and provide CalypsoAI with all information relating to the issue, including a detailed description of the issue, test data associated with the issue, and any other information which CalypsoAI may reasonably request in order to provide the Support Services to Customer. Customer will be responsible for installing and implementing all workarounds, Updates and Upgrades. Customer understands that failure to incorporate workarounds, Updates, or Upgrades may cause subsequent workarounds, Updates and Upgrades to be unusable. Customer acknowledges that all workarounds, Updates and Upgrades provided by CalypsoAI are subject to the terms of the Agreement and Customer agrees to abide by those terms and conditions. Customer will fully cooperate and assist CalypsoAI in the provision of Support Services, including allowing full and free access to relevant hardware, software and other information. Customer will use any tools provided by CalypsoAI to track and resolve any issues. CalypsoAI is not responsible or liable for any delay or failure of performance caused in whole or in part by any delay or failure to perform any of Customer’s obligations hereunder or under the Agreement.