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OpenSpace Terms and Conditions

PLEASE READ THESE TERMS AND CONDITIONS (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY OPEN SPACE LABS, INC. (“OPEN SPACE”).  BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH OPEN SPACE WHICH REFERENCE THESE TERMS (EACH, AN “ORDER FORM”), YOU (“CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS.  IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.

1. Order Forms and Service

Upon mutual execution, each Order Form shall be incorporated into and form a part of the Agreement.  Subject to Customer’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form) Open Space will use commercially reasonable efforts to provide Customer with access to services specified in an applicable Order Form (“Services”) during the applicable Order Form Term (as defined below) for the internal business purposes of Customer, only as provided herein and only in accordance with Open Space’s applicable official user documentation (the “Documentation”).  In the event of any actual or threatened violation of this section, if Customer becomes insolvent, or files (or has filed against it) any bankruptcy or similar proceeding or Customer fails to make any payment under this Agreement when due, Open Space reserves the right to suspend Customer’s access to the Services.

2. Equipment Sale and Purchase

Open Space will supply Customer with the quantities of Equipment set forth in the above Order Form and with additional quantities of Equipment agreed to by the parties in a subsequent Order Form.  Upon Company’s acceptance in writing of any Order Form for the purchase of Equipment, such purchases are binding non-cancelable commitments.

3. Implementation

Upon payment of any applicable fees set forth in each Order Form, Open Space agrees to use reasonable commercial efforts to provide standard implementation assistance for the Service and/or Equipment only if and to the extent such assistance is set forth on such Order Form (“Implementation Assistance”).

4. Support; Service Levels

Open Space will provide support and uptime for the Service in accordance with Open Space’s then-current standard Support and Availability Policy set forth at https://openspace.ai/sla.html

5. Service Updates

From time to time, Open Space may provide upgrades, patches, enhancements, or fixes for the Services to its customers generally without additional charge (“Updates”), and such Updates will become part of the Services and subject to this Agreement; provided that Open Space shall have no obligation under this Agreement or otherwise to provide any such Updates.  Customer understands that Open Space may cease supporting old versions or releases of the Services at any time in its sole discretion; provided that Open Space shall use commercially reasonable efforts to give Customer sixty (60) days prior notice of any major changes.

6. Confidentiality; Customer Materials; Publicity

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).

The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information.  The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party.  Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order.

For purposes of this Agreement, “Customer Materials” shall mean any pictures, data, information or other material provided, uploaded, or submitted by Customer to the Service in the course of using the Service.  Customer shall retain all right, title and interest in and to the Customer Materials, including all intellectual property rights therein.  Customer, not Open Space, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Materials.  Open Space shall use commercially reasonable efforts to maintain the security and integrity of the Service and the Customer Materials.  Customer is responsible for the use of the Service by any person to whom Customer has given access to the Service, even if Customer did not authorize such use.  Open Space will use its commercially reasonable efforts to retain the relevant information and data contained in the Customer Materials during the applicable Order Form Term, but Customer acknowledges and agrees that Open Space may transform such Customer Materials in a proprietary manner and only retain such proprietary transformation.  Notwithstanding anything to the contrary, Customer acknowledges and agrees that Open Space may (i) internally use and modify (but not disclose) Customer Materials for the purposes of (A) providing the Services and any support or consultation services to Customer and (B) generating derived data and analytics, provided such derived data and analytics do not identify Customer, and (ii) freely use, exploit and make available such derived data and/or analytics for Open Space’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Open Space’s products and services).  Notwithstanding anything else, Open Space is permitted to disclose (including through display of Customer’s logo) that Customer is one of its customers (including in its publicity and marketing materials).

7. Ownership; Restrictions; Feedback

As between the parties, Open Space retains all right, title, and interest in and to the Services and all software, products, outputs from the Services, derived data, analytics, works, and other intellectual property and moral rights related thereto or created, used, or provided by Open Space for the purposes of this Agreement, including any copies and derivative works of the foregoing.  The Services and, to the extent made available by Open Space, any software, outputs from the Services, derived data or analytics made available to Customer (whether accessed via the Services or otherwise) is licensed only during the applicable Order Form Term and solely for Customer’s internal use.  Such license is non-exclusive, non-sublicensable and does not include any right to (and` Customer will not) modify, reverse engineer (except to the extent applicable law prohibits reverse engineering restrictions), incorporate or use in any other works, create derivatives of, or copy any portion of the Services, software, derived data or analytics, or to use any of the foregoing for the benefit of any third party.   Customer acknowledges that the Services may contain or use or be distributed alongside certain third-party software; third-party software is (in addition to the terms and conditions of this Agreement), subject to and governed by (and Customer agrees to) the respective licenses for that third-party software.  Customer acknowledges that the Services may include features to prevent use after the applicable authorized usage period and/or use inconsistent with this Agreement.  Customer is responsible for all of Customer’s activity in connection with the Service, including but not limited to uploading Customer Materials (as defined below) onto the Service.  Customer (i) shall use the Services in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (ii) shall not use the Service in a manner that violates any third party intellectual property, contractual or other proprietary rights.

No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement.  Customer may from time to time provide suggestions, comments or other feedback to Open Space with respect to the Service (“Feedback”).  Feedback, even if designated as confidential by Customer, shall not create any confidentiality obligation for Open Space notwithstanding anything else.  Customer shall, and hereby does, grant to Open Space a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose.

8. Fees; Payment

Customer shall pay Open Space fees for the Service and Equipment as set forth in each Order Form (“Fees”).  Unless otherwise specified in an Order Form, all Fees shall be invoiced annually in advance and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice.  Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law.  Customer shall be responsible for all taxes associated with the Services (excluding taxes based on Open Space’s net income).  Unless otherwise set forth in an applicable Order Form, all renewals and usage in excess of prepaid allowances will be billed at then current rates.  All Fees paid are non-refundable and are not subject to set-off.

9. Term; Termination

This Agreement shall commence upon the effective date set forth in the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms.  For each Order Form, the “Order Form Term” shall begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, (x) shall continue for the initial term specified on the Order Form (the “Initial Order Form Term”), and (y) following the Initial Order Form Term, shall automatically renew for additional successive periods of one year each (each, a “Renewal Order Form Term”) unless either party notifies the other party of such party’s intention not to renew no later than thirty (30) days prior to the expiration of the Initial Order Form Term or then-current Renewal Order Form Term, as applicable.  In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice.  All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

10. Indemnification

Each party (“Indemnitor”) shall defend, indemnify, and hold harmless the other party, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives (collectively, the “Indemnitee”) from all liabilities, claims, and expenses paid or payable to an unaffiliated third party (including reasonable attorneys’ fees) (“Losses”), that arise from or relate to any claim that (i) the Customer Materials (in the case of Customer as Indemnitor), or (ii) the Service (in the case of Open Space as Indemnitor), infringes, violates, or misappropriates any third party intellectual property or proprietary right.  Each Indemnitor’s indemnification obligations hereunder shall be conditioned upon the Indemnitee providing the Indemnitor with: (i) prompt written notice of any claim (provided that a failure to provide such notice shall only relieve the Indemnitor of its indemnity obligations if the Indemnitor is materially prejudiced by such failure); (ii) sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense and settlement at its own expense); and (iii) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense).  The foregoing obligations of Open Space do not apply with respect to the Service or any information, technology, materials or data (or any portions or components of the foregoing) to the extent (i) not provided by Open Space (including without limitation any Customer Materials), (ii) made in whole or in part in accordance to Customer specifications, (iii) modified after delivery by Open Space, (iv) combined with other products, processes or materials not provided by Open Space (where the alleged Losses arise from or relate to such combination), (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) Customer’s use of the Service is not strictly in accordance herewith.

11. Disclaimer

EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICE, EQUIPMENT AND ANYTHING ELSE PROVIDED BY OPEN SPACE HEREUNDER IS PROVIDED “AS IS” AND “AS AVAILABLE” AND IS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.

12. Limitation of Liability

EXCEPT FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS AND EXCEPT FOR BODILY INJURY OR DEATH, IN NO EVENT SHALL EITHER PARTY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, OR (II) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CUSTOMER TO OPEN SPACE HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.

13. U.S. Government Matters

Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of anything provided hereunder or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  Without limiting the foregoing, Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”).  The lists of Embargoed Countries and Designated Nationals are subject to change without notice.  The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations.

14. Miscellaneous

This Agreement represents the entire agreement between Customer and Open Space with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Customer and Open Space with respect thereto.  The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California.  All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.  Notices must be sent to the contacts for each party set forth on the Order Form.  Either party may update its address set forth above by giving notice in accordance with this section.  Except as otherwise provided herein, this Agreement may be amended only by a writing executed by both parties.  Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes, lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.  Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business or assets relating to this Agreement, and (ii) Open Space may utilize subcontractors in the performance of its obligations hereunder.  No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect.  In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees.  If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable.  The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.