One Codex

WHEREAS, One Codex provides the Platform on a hosted basis; and

WHEREAS, Customer desires to access the Platform as described on the Order Form to which these Terms are attached, and One Codex desires to grant Customer the right to access and use the Platform in accordance with the terms set forth in this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth in this Agreement, the parties hereby agree as follows:

1. Definitions.

Capitalized terms used but not defined herein shall have the meanings set forth in the Order Form. As used herein, “including” will be deemed to be followed by the words “without limitation.”

“Customer Systems” means any software, hardware, or systems of Customer or its affiliates or contractors (including any third-party platform or service which One Codex will access on behalf of Customer).

To the extent that Professional Services are identified in the Order Form, “Deliverables” has the meaning set forth in the Professional Services Terms and Conditions available at https://www.onecodex.com/legal/professional-services-terms and, to the extent applicable, shall be specified in a SOW (as defined below).

“Derivative Data” means any and all data and other information that results or is derived from Customer’s or any End User’s use of the Services and that is used by One Codex in an aggregate, de-identified, and anonymized manner, including for indexing, maintaining, providing, and/or improving the Services.

“Input Customer Data” means the data and other information provided by Customer to One Codex for use in connection with the Services. “Input Customer Data” includes any and all data and other information provided by any and all End Users (as defined below in Section 2.1(b)) to Customer in connection with Customer’s use of the Services as permitted herein.

“One Codex Data” means any data and other information that is not Input Customer Data or Output Customer Data that is (a) generated by One Codex in the course of providing the Services, including Derivative Data, service and usage data; and/or (b) otherwise collected by One Codex, whether as a result of the Services or otherwise, including from any other customers of One Codex.

“Output Customer Data” means the data and other information generated by One Codex on behalf of Customer and made available to Customer and its End Users (as permitted herein) via the Platform. For clarity, Output Customer Data is separate and apart from any Deliverables created on behalf of Customer pursuant to any Professional Services.

“Services” means, collectively: (a) One Codex’s provision of the Platform; (b) One Codex’s processing and use of Input Customer Data, and the production of Output Customer Data, which such Output Customer Data is made available to Customer via the Platform; and (c) if any professional services are identified in the Order Form (“Professional Services”), such Professional Services, including the creation of any Deliverables thereunder.

“SOW” shall mean the statement(s) of work or similar document that describe at a minimum the scope, timeline and fees for performance of the Services.

2. Provision of Services.

2.1 Services.

1. Access to Platform. During the Term One Codex will make the Platform available to Customer in accordance with this Agreement, including Section 2.4 herein and the Service Level Agreement (as defined below), and One Codex hereby grants to Customer a revocable (solely as permitted herein), nonexclusive, non-transferable (except as permitted in Section 12.1), non-sublicensable (except as expressly contemplated by this Agreement), license during the Term (as defined below) for Customer and its authorized employees and contractors to access and use the Software and Platform for Customer’s business purposes . For clarity, the license granted by One Codex to Customer in this Section 2.1(a) (i) shall be to the Platform in object code form only and not to any source code related thereto, and (ii) does not include the right for Customer to create or have created on its behalf any derivative works based on the Platform or otherwise to adapt or modify the Platform or to have the Platform adapted or modified on its behalf.

2. Output Customer Data. As part of the Services, One Codex agrees to make Output Customer Data available to Customer via the Platform. One Codex may provide to Customer via the Platform certain features and functionality that permit the download and/or other export of certain Output Customer Data. Customer may utilize such features and functionality to download and/or export such Output Customer Data in the format provided by One Codex, which may be used solely for Customer’s business purposes. One Codex and Customer acknowledge and agree that, from time to time during the Term (as defined in Section 5.1 below), Customer may provide access to the Platform to its end users (“End Users”) that permit such End Users to access or use the Output Customer Data as part of Customer’s services offered to such End Users related to Customer’s use of the Services, including the Platform, as permitted herein. Each End User (including all individual employees and contractors of any entity that qualifies as an End User) shall be subject to, and Customer shall ensure that its agreement(s) with any End User shall contain, the End User License Agreement (“EULA”) available at https://www.onecodex.com/legal/eula. One Codex hereby grants to Customer a nonexclusive, non-transferable (except as permitted in Section 12.1), non-sublicensable (except as expressly contemplated by this Section 2.1(b) in order to provide the Output Customer Data to End Users), license to the Platform during the Term for Customer, Customer’s authorized employees and permitted contractors, and Customer’s End Users and their authorized employees and permitted contractors to access and use the Output Customer Data solely for the foregoing purposes and in accordance with the terms of this Agreement. To the extent the Output Customer Data includes any One Codex Data and/or Derivative Data, One Codex grants to Customer a limited, nonexclusive, non-transferable (except as permitted in Section 12), non-sublicenseable (except as expressly contemplated by this Section 2.1(b)) license during the Term for Customer, Customer’s authorized employees and permitted contractors, and Customer’s End Users and their respective authorized employees and permitted contractors to use any such One Codex Data and/or Derivative Data solely in connection with Customer’s permitted use of the Output Customer Data and in no other capacity and for no other purpose.

2.2 Use and Protection of Customer Data.

1. Submission of Input Customer Data. By submitting Input Customer Data into the Platform, Customer hereby grants, and represents and warrants that it has all rights necessary to grant, all rights and licenses to the Input Customer Data required for One Codex and its subcontractors and service providers to use the Input Customer Data to provide the Services and for One Codex to generate any Derivative Data. Customer acknowledges and agrees that it shall be responsible in the event that any damage or loss of any kind results from Customer’s provision of any Input Customer Data to One Codex that is not owned or controlled by Customer or its End Users. Except as permitted in Section 2.2(b), One Codex shall have no right to sell, resell, license, sublicense, assign, or otherwise transfer any Input Customer Data provided by Customer without Customer’s prior written consent. Notwithstanding the foregoing, Customer acknowledges and agrees that One Codex may create, collect, analyze, retain, and use Derivative Data (which, for clarity, shall be in aggregated and de-identified form) for the purposes of developing, operating, analyzing, improving, or marketing the Services and any related services associated with One Codex’s business. Except as permitted in Section 2.2(b), if One Codex publishes, shares, or discloses any Derivative Data or Input Customer Data, such data will be aggregated or anonymized to reasonably avoid identification of Customer.

2. Sharing of Customer Data. The Platform may be configured to allow Customer, at Customer’s option, to share Input Customer Data and/or Output Customer Data (each, as applicable, “Shared Customer Data”) with other Platform users (each a “Sharee”). Customer is solely responsible for the decision to share Input Customer Data and/or Output Customer Data and for obtaining all necessary rights, authorizations, and consents necessary to share such Shared Customer Data. Customer acknowledges and agrees that once Customer has shared such Shared Customer Data it is no longer under Customer’s control and the Sharee of that Shared Customer Data is free to use that Shared Customer Data. For example, a Sharee may be able to download Shared Customer Data to its own computer and further disseminate such Shared Customer Data to others, including One Codex, even if such Shared Customer Data is removed from Customer’s account or Customer disables sharing of that Shared Customer Data. Customer acknowledges and agrees that One Codex has no liability arising out of Customer’s sharing of Shared Customer Data and One Codex expressly disclaims any liability with respect to such Shared Customer Data. One Codex has no obligation to assist Customer in resolving disputes arising from Customer’s sharing of Shared Customer Data with any third parties (including Customer’s End Users) and Customer shall indemnify, defend, and hold One Codex harmless from any claim, dispute, or allegation brought by a third party (including Customer’s End Users) against One Codex with respect to Shared Customer Data. Customer acknowledges and agrees that if it has shared such Shared Customer Data with a Sharee, such Sharee may have downloaded or copied such Shared Customer Data, and it may not be possible to recover such Shared Customer Data from such Sharee.

3. Terms of Use. Except as otherwise expressly provided in this Agreement, all data submitted, used or otherwise existing on the Platform is subject to One Codex’s Website Terms of Use, available at https://www.onecodex.com/legal/tos, as the same may be amended from time to time in accordance with its terms.

4. Security Measures. Except with respect to any action taken by the Customer with respect to Input Customer Data or Output Customer Data, including Shared Customer Data, and any breach by Customer of its obligations regarding Input Customer Data or Output Customer Data as provided under this Agreement, One Codex will use commercially reasonable efforts to implement and maintain industry-standard information security processes (including technical, administrative, and physical safeguards) designed to prevent unauthorized access to or use or disclosure of the Input Customer Data and Output Customer Data. Customer acknowledges that it is solely responsible for the security of its users’ access to and use of the Platform and all Shared Customer Data shared with any Sharees on or through the Services.

2.3. Access to Customer Systems and Facilities. One Codex may access Customer Systems or Customer facilities (to the extent permitted by Customer in its discretion) only to provide the Services and only with Customer’s prior written consent. Any access is limited to the time periods and personnel specified by Customer and is subject to Customer’s security and other policies that are provided to One Codex in advance in writing. One Codex will be solely liable for its acts or omissions while accessing any Customer Systems and facilities. In connection with any Services to be performed at Customer’s facilities, Customer shall supply One Codex personnel located at Customer’s facilities with reasonable work space, desks, storage, furniture, and other normal equipment and support, adequate computer resources, telephone and facsimile service, copying, and general office supplies if necessary in connection with One Codex’s performance of the Services. All such property, regardless of its physical location or use, shall be deemed to be in the care, custody and control of Customer. In connection with any other Services, One Codex personnel shall provide such Services at One Codex’s facilities unless otherwise mutually agreed-upon by the parties.

2.4. General Restrictions. Customer will not, and will not permit any third party (including its employees, contractors, and End Users) to: (a) use the Output Customer Data, Derivative Data, and/or One Codex Data except as permitted in this Agreement; (b) decompile, disassemble, or reverse engineer the underlying software comprising the Platform or the Output Customer Data, Derivative Data, or One Codex Data (unless not permitted under applicable law); (c) sell, rent, lease or use the Platform, Output Customer Data, Derivative Data, and/or One Codex Data or any portion of any of the foregoing (except as expressly contemplated by this Agreement); (d) remove, modify, or obscure any copyright or proprietary notices contained in the Platform, Output Customer Data, Derivative Data, and/or One Codex Data; (e) access or use the Platform to circumvent or exceed Platform account limitations or requirements; (f) use the Platform, Output Customer Data, Derivative Data, and/or One Codex Data for the purpose of building a similar or competitive product or service to the Platform or the Services, (g) obtain unauthorized access to the Platform, Output Customer Data, Derivative Data, and/or One Codex Data (including permitting access to or use of the Platform, Output Customer Data, Derivative Data, and/or One Codex Data via another system or tool, the primary effect of which is to enable input of requests or transactions by other than authorized users); (h) use the Platform, Output Customer Data, Derivative Data, and/or One Codex Data in a manner that is contrary to applicable law or in violation of any third party rights of privacy or intellectual property rights; (i) publish, post, upload or otherwise transmit any data via the Platform that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; or (j) use or permit the use of any tools in order to probe, scan or attempt to penetrate or benchmark the Platform.

2.5. Service Level Agreement. During the Term, if applicable, One Codex will provide the Support described at https://www.onecodex.com/legal/sla (“Service Level Agreement”).

2.6 Technical Support. Unless otherwise specified in the Order Form, One Codex will provide Customer, at no additional charge, with technical support services for the Platform on the same basis as it provides such services to similarly situated customers.

2.7. Reservation of Rights. Except to the extent otherwise expressly set forth in this Agreement: (a) One Codex hereby reserves all rights in and to the Services, Platform, One Codex Data, and Derivative Data; and (b) Customer hereby reserves all rights in and to any Input Customer Data it provides hereunder. As between the parties, (x) One Codex owns all right, title and interest in and to the Services, Platform, One Codex Data, and Derivative Data (including any derivative works based on any of the foregoing), and (y) Customer shall own all right, title and interest in and to Input Customer Data, Output Customer Data, and Customer Systems.

2.8. New Services. The parties acknowledge and agree that any new features developed by One Codex as part of the Services or offered as part of the Platform at any time during the Term and provided to any of One Codex’s customers, whether or not created based on Feedback (collectively, “New Services”) shall belong to One Codex. Such New Services shall be deemed to be “Services” and included in the “Platform,” as such terms are defined herein. Except for the limited licenses expressly set forth herein, Customer shall have no rights to any such New Services (including with respect to creating derivative works thereof).

3. Representations and Warranties.

3.1. Representations and Warranties. Each party represents and warrants to the other that it has full right and power to enter into and perform under this Agreement, without any third party consents or conflicts with any other agreement. One Codex further warrants that it will provide the Professional Services, if any, in accordance with this Agreement and the descriptions in the Order Form and any applicable SOW (the “Performance Warranty”).

3.2. Remedy of Defects. If Customer reports in writing a breach of the Performance Warranty, One Codex will perform the Support described in the Service Level Agreement; provided that, in the case of any Professional Services reported to One Codex, One Codex will use commercially reasonable efforts to reperform such Professional Services to the reasonable satisfaction of Customer. The foregoing shall be Customer’s sole remedy, and One Codex’s sole responsibility, for a breach of the Performance Warranty.

3.3 Infringement Warranty. One Codex warrants that, to One Codex’s knowledge, neither the Services nor the Platform infringes the intellectual property rights of any third party. Should the Services become, or in the opinion of One Codex be likely to become, the subject of an infringement claim, One Codex shall, at its option (i) procure for Customer the right to use the Services at no cost to Customer; (ii) replace or modify, in whole or in part, the Services to make it non-infringing; or (iii) if neither (i) nor (ii) are, in One Codex’s sole and absolute discretion, commercially practicable, accept return of the Services, or remove the allegedly offending module thereof, and, refund the Fees paid for such Services or module by Customer, less an amount determined by multiplying the Fees paid for such Services or such module during the then-current Term by a fraction, the numerator of which is the number of months during the then-current Term during which Customer had use of the Services and the denominator of which is the total number of months during the then-current Term.

3.4. Warranty Disclaimer.

1. General Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT AND ANY SOW: (I) EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE; AND (II) THE PARTIES AGREE THAT THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” ONE CODEX MAKES NO OTHER WARRANTY AS TO THE SERVICES.

2. Results of Use of the Services, Output Customer Data, Derivative Data, and/or One Codex Data. THE PARTIES ACKNOWLEDGE AND AGREE THAT THERE ARE CERTAIN RISKS INHERENT TO THEIR ENGAGEMENT HEREUNDER, AND THAT CUSTOMER’S USE OF, AND ONE CODEX’S PROVISION OF, THE SERVICES, OUTPUT CUSTOMER DATA, DERIVATIVE DATA, AND/OR ONE CODEX DATA MAY NOT RESULT IN ANY SPECIFIED RESULT. THE PARTIES FURTHER ACKNOWLEDGE AND AGREE THAT INFORMATION PROVIDED VIA THE PLATFORM, SUCH AS OUTPUT CUSTOMER DATA, DERIVATIVE DATA, AND ONE CODEX DATA IS INTENDED TO BE INFORMATIVE, AND SHOULD NOT BE CONSTRUED AS ADVICE OR RECOMMENDATIONS. ACCORDINGLY, ONE CODEX HEREBY DISCLAIMS, AND CUSTOMER HEREBY EXPRESSLY RELIEVES ONE CODEX FROM, ANY CLAIMS, DAMAGES, COSTS, OR LIABILITIES THAT MAY ARISE FROM OR RELATE TO ANY ACTS OR OMISSIONS MADE BY CUSTOMER BASED IN WHOLE OR IN PART BASED ON ANY INFORMATION PROVIDED VIA THE PLATFORM, INCLUDING THE OUTPUT CUSTOMER DATA, DERIVATIVE DATA, AND ONE CODEX DATA.

3.5. Sole Remedy for Infringement THE WARRANTIES SET FORTH IN THIS SECTION 3 SET FORTH ONE CODEX’S ENTIRE LIABILITY AND CUSTOMER’S SOLE REMEDY FOR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH THE SERVICES AND THIS AGREEMENT.

4. Payment.

4.1. Fees. In consideration of the licenses granted by One Codex under this Agreement, Customer shall pay One Codex the fees in the amounts set forth on the Order Form (the “Fees”). Unless otherwise specified on the Order Form or this Agreement, the Fees are payable on an annual basis, and shall be invoiced on or about the Effective Date for the Initial Term, and thirty (30) days in advance of each Renewal Term, as applicable; except that any Fees set forth in an SOW will be paid in accordance with the payment schedule set forth in such SOW. Customer will reimburse One Codex for reasonable travel and living expenses incurred by One Codex in performing services at sites other than One Codex facilities at Customer’s request (including Setup Services, training, technical support, and Professional Services) (collectively, “Expenses”) within thirty (30) days of One Codex issuing an invoice for such Expenses.

4.2. Taxes. Customer will be solely responsible for the payment of any and all local, state, federal, or foreign taxes, levies, and duties of any nature, including value-added, sales, use, and withholding taxes resulting from this Agreement (“Taxes”), excluding all taxes based on One Codex’s net income. If One Codex has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides One Codex with a valid tax exemption certificate authorized by the appropriate taxing authority.

4.3. Payment Terms. All amounts payable to One Codex under this Agreement will be due within 30 days from the receipt of an invoice. All Fees are deemed earned upon receipt of payment, and are non-refundable except as otherwise required by applicable law or as set forth herein. Overdue payments will be subject to interest at the rate of 1.5% per month, or the maximum allowable under applicable law, whichever is less.

4.4. Changes to the Fees. One Codex may, in its sole discretion, increase or otherwise modify the Fees at each renewal period during the Term by providing at least 45 days advance written notice of such modification. If Customer does not agree to the new or changed Fees, Customer may exercise its right not to renew the Agreement.

5. Term and Termination.

5.1. Effective Date and Term. Unless earlier terminated as provided in this Section, this Agreement and the license granted hereunder shall be effective as of the Effective Date set forth on the Order Form and shall continue for one (1) year therefrom (“Initial Term”), after which this Agreement shall automatically renew for successive one (1) year periods (each, a “Renewal Term,” and together with the Initial Term, the “Term”) unless Customer provides written notice at least thirty (30) days prior to the renewal date. The term for any SOW shall be as set forth in such SOW.

5.2. Termination for Cause. Either party shall have the right to terminate this Agreement immediately upon written notice to the other party: (a) if the other party breaches or fails to perform or observe any material term or condition of this Agreement and such default has not been cured within thirty (30) days after written notice of such default to the other party; (b) if the Platform becomes, in its entirety, subject to the circumstances described in Section 9.1(b)(iii); or (c) if the other party (i) terminates or suspends its business, (ii) becomes subject to any bankruptcy or insolvency proceeding under Federal or state statute or files a petition for bankruptcy that is not dismissed or withdrawn within thirty (30) days, (iii) becomes insolvent or subject to direct control by a trustee, receiver or similar authority, or (iv) has wound up or liquidated, voluntarily or otherwise.

5.3. Effect of Termination. Sections 1, 2.2, 2.7, 3.3, 4, 5.4, 6, 7 (for three years after termination or expiration of this Agreement or, with respect to trade secrets, until such trade secrets are no longer protected as such under Laws), 9.1 (solely with respect to claims arising during the Term), 9.2, 9.3, 9.4, 10, 11 (for the period set forth therein), and 12 shall survive termination of this Agreement. Upon any termination of this Agreement, all unpaid Fees for the then-current Term (if any) shall become immediately due and payable. Nothing contained herein shall limit any other remedies that either party may have for the default of the other party under this Agreement nor relieve either party of any of its obligations incurred prior to such termination.

6. Limitation of Liability.

6.1. Liability Caps. EXCEPT WITH RESPECT TO EXCLUDED CLAIMS (DEFINED BELOW), IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER TO ONE CODEX HEREUNDER DURING THE ONE YEAR PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.

6.2. Consequential Damages Waiver. EXCEPT WITH RESPECT TO EXCLUDED CLAIMS (DEFINED BELOW), NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, BUSINESS, CONTRACTS, REVENUE, GOODWILL, PRODUCTION, ANTICIPATED SAVINGS, LOSS OF DATA, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, FOR ANY CLAIM OR DEMAND BY ANY OTHER PARTY, HOWEVER CAUSED AND (TO THE FULLEST EXTENT PERMITTED BY LAW) UNDER ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

6.3. Excluded Claims. As used in this Agreement, “Excluded Claims” means: (a) Customer’s breach of Section 2; (b) either party’s breach of its confidentiality obligations under Section 7; (c) Customer’s indemnification obligations under Section 9; and (d) the gross negligence or willful misconduct of either party or its agents. Customer acknowledges that the amounts payable hereunder are based in part on these limitations, and further agrees that these limitations shall apply notwithstanding any failure of essential purpose of any limited remedy.

7. Confidential Information.

7.1. Nondisclosure. One Codex and Customer each agree to retain in confidence the non-public information and know-how disclosed pursuant to this Agreement which is either designated in writing as proprietary and/or confidential, if disclosed in writing, or if disclosed orally, is designated in writing (which may be via email) as confidential within 30 days of the oral disclosure or should reasonably be understood to be confidential by the recipient (the “Confidential Information”). Notwithstanding any failure to so designate them, (i) the terms and conditions of this Agreement, the Services, Derivative Data, and One Codex Data shall be One Codex’s Confidential Information; and (ii) Input Customer Data and Output Customer Data shall be Customer’s Confidential Information. Each party agrees to: (a) preserve and protect the confidentiality of the other party’s Confidential Information; (b) refrain from using the other party’s Confidential Information except as contemplated herein; and (c) not disclose such Confidential Information to any third party except to employees and subcontractors as is reasonably required in connection with the exercise of its rights and obligations under this Agreement (and only to employees, contractors or agents who are subject to binding use and disclosure restrictions at least as protective as those set forth herein). Each party agrees to immediately notify the other party of any unauthorized disclosure or use of any Confidential Information and to assist the other party in remedying such unauthorized use or disclosure by taking such steps as are reasonably requested. Notwithstanding the foregoing, either party may disclose Confidential Information of the other party which is: (i) already publicly known without breach of this Agreement; (ii) discovered or created by the receiving party without use of, or reference to, the Confidential Information of the disclosing party, as shown in records of the receiving party; or (iii) otherwise known to the receiving party through no wrongful conduct of the receiving party. In addition, either party may disclose the Confidential Information of the other party to the extent such disclosure is required by law or court order; provided that, if legally permissible, the receiving party shall provide prompt notice thereof and reasonable assistance to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure.

7.2. Remedies. Each party agrees and acknowledges that any breach or threatened breach of this Section may cause irreparable injury to the disclosing party and that, in addition to any other remedies that may be available, in law, in equity or otherwise, the disclosing party shall be entitled to seek injunctive relief against the threatened breach of this Agreement or the continuation of any such breach by the receiving party, without the necessity of proving actual damages or posting any bond, in addition to any other rights or remedies provided by law.

7.3. Feedback. Customer may choose to or One Codex may invite Customer to submit comments or ideas about the Platform, Services, Output Customer Data, Derivative Data, and/or One Codex Data, including about how to improve the Platform, Services, Output Customer Data, Derivative Data, and/or One Codex Data or One Codex’s products (“Feedback”). By submitting any Feedback, Customer agrees that its disclosure is gratuitous, unsolicited and without restriction and will not place One Codex under any fiduciary or other obligation, and that all right, title, and interest in and to such Feedback shall belong to One Codex. Customer hereby assigns all right, title, and interest in and to such Feedback (which, for clarity, shall not include underlying Input Customer Data or Output Customer Data) to One Codex without any additional compensation to Customer or anyone else. Customer further acknowledges that, by acceptance of Customer’s submission, One Codex does not waive any rights to use similar or related ideas previously known to One Codex, or developed by its employees, or obtained from sources other than Customer.

8. Publicity. Neither party may use the other party’s name, logo or marks without such other party’s written pre-approval; provided that One Codex may: (a) after the Effective Date, issue one or more press releases or similar materials announcing that Customer is a customer and user of the Services; (b) refer to Customer on its customer lists, website, and other marketing materials; and (c) develop use cases based on Customer’s use of the Services, with respect to which Customer will provide all reasonable cooperation requested by One Codex.

9. Indemnification.

9.1. One Codex Indemnification

1. One Codex Indemnity. One Codex shall indemnify, defend and hold Customer and its officers, directors, employees, agents, successors and assigns harmless, at its expense, against any suit, claim, action, or proceeding brought against Customer by an independent third party to the extent based upon a claim that the Platform or Services infringes any patent, copyright or trademark or misappropriates any trade secret of such third-party, and will pay such damages or costs as are finally awarded against Customer by a court (or mediator or arbitrator, if applicable) of competent jurisdiction or are agreed to in a settlement that are attributable to such claim.

2. Exclusions from One Codex Indemnity. One Codex assumes no liability hereunder for, and its obligations under Section 9.1(a) shall expressly exclude any claim or action based on, arising from, or related to: (i) any method or process in which the Platform, Services, Input Customer Data, Output Customer Data, Derivative Data, and/or One Codex Data may be used by Customer; (ii) any compliance with Customer’s specifications; or (iii) the combination, operation or use of the Platform, Services, Input Customer Data, Output Customer Data, Derivative Data, and/or One Codex Data with any programs or data not provided by One Codex or otherwise permitted in any documentation associated with the Platform and made available to One Codex’s customers. Customer shall indemnify defend and hold harmless One Codex and its officers, directors, employees, agents, successors and assigns against any damages, losses, and expenses (including reasonable attorneys’ fees) based on, arising from, or related to any third-party action to the extent based upon a claim of any kind based on any of the foregoing factors in (i) through (iii) (inclusive) in the foregoing sentence.

9.2. Customer Indemnification. Customer shall defend, indemnify, and hold harmless One Codex and its officers, directors, employees, agents, successors and assigns from and against any and all third-party claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including attorneys’ fees) arising from or relating to: (a) One Codex’s ingestion, commingling, processing and use of the Input Customer Data in One Codex’s provision of the Services as contemplated in this Agreement; or (b) Customer’s or its End Users’, or its or their employees or contractors’: (i) use of and access to the Platform or Services in a manner inconsistent with their documentation; (ii) a breach of Sections 2.1, 2.2, or 2.4; or (iii) negligence or willful misconduct.

9.3. Indemnity Procedures. The party seeking indemnification (the “Indemnified Party”) shall provide the party from whom indemnification is sought (the “Indemnifying Party”) with: (a) prompt written notice of any claim for which indemnification is sought (provided that a failure to provide such notice shall not relieve the Indemnifying Party of its obligations hereunder except to the extent material prejudice results from such failure); (b) sole control over the defense and settlement of the claim (provided that neither party may enter into a settlement of any kind that places any material obligation on the other party, or requires the other party to admit any liability, without the other party’s prior written approval, which will not be unreasonably withheld, conditioned, or delayed); and (c) all reasonable cooperation, at the Indemnifying Party’s request and expense.

10. Compliance with Laws.

Each party shall comply with all applicable local, state, federal, and foreign laws, treaties, regulations, and conventions in connection with this Agreement (“Laws”).

11. Non-Solicitation.

Customer acknowledges that the personnel employed or performing Services for Customer represent a significant investment in recruitment and training, the loss of which would be detrimental to One Codex’s business. In consideration of the foregoing, Customer agrees that during the Term and for a period of one (1) year thereafter, Customer will not directly or indirectly, recruit, hire, employ, engage, or discuss employment with any One Codex employee, or contractor (including consultant, sub-contractor or agent) who is engaged in the provision of any Services. Notwithstanding the foregoing, this Section 11 shall not apply to: (i) general solicitations or recruitment through newspapers, social media, company websites or other media or channels of general circulation not directly targeted at One Codex’s employees or contractors, (ii) hiring or engaging persons who may respond to such general recruitment activities, or (iii) hiring or engaging persons who may on their own initiative initiate inquiries regarding providing services to Customer.

12. Miscellaneous.

12.1. Assignment. Customer may not assign or otherwise transfer this Agreement or any rights or obligations hereunder, in whole or in part, whether by operation of law or otherwise, to any third party without the prior written consent of One Codex. Any purported transfer, assignment or delegation without such prior written consent will be null and void and of no force or effect. One Codex may freely assign its rights and obligations under this Agreement. Subject to this Section, this Agreement shall be binding upon and inure to the benefit of the parties hereto, and their respective successors and permitted assigns.

12.2. Entire Agreement; Modification; Waiver; Severability. This Agreement together with its exhibits and any SOWs issued hereunder represents the entire agreement between the parties, and supersedes all prior agreements and understandings, written or oral, with respect to the matters covered by this Agreement, and is not intended to confer upon any third party any rights or remedies hereunder. Customer acknowledges that it has not entered in this Agreement based on any representations other than those contained herein. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, shall be effective unless in writing and signed by both parties. The waiver of one breach or default or any delay in exercising any rights shall not constitute a waiver of any subsequent breach or default. If any provision of this Agreement is held invalid or unenforceable under applicable law by a court of competent jurisdiction, it shall be replaced with the valid provision that most closely reflects the intent of the parties and the remaining provisions of the Agreement will remain in full force and effect.

12.3. Delays. If either party is prevented from performing or is unable to perform any of its obligations under this Agreement (other than any payment obligation) due to any Act of God, fire, casualty, flood, earthquake, war, strike, lockout, epidemic, destruction of production facilities, riot, insurrection, material unavailability, or any other cause beyond the reasonable control of the party invoking this Section (each a “Force Majeure Event”), and if such party shall have used its commercially reasonable efforts to mitigate its effects, such party shall give prompt written notice to the other party, and the time for the performance shall be extended for the period of delay or inability to perform due to such occurrences. If a party’s performance under this Agreement is prevented by such Force Majeure Event for a period longer than sixty (60) days, the other party may terminate this Agreement with immediate effect. Customer shall be entitled to a refund of unused, prepaid Fees in the event this Agreement is terminated due to a Force Majeure Event that prevents One Codex’s performance hereunder.

12.4. Governing Law; Dispute Resolution. This Agreement shall in all respects be governed by the laws of the State of Delaware without reference to its principles of conflicts of laws. Subject to the following arbitration requirements, the parties hereby agree that all litigation arising out of this Agreement shall be subject to the exclusive jurisdiction of and venue in the federal and state courts within New Castle County, Delaware. Customer hereby consents to the personal and exclusive jurisdiction and venue of these courts. For any dispute in connection with this Agreement, the parties agree to first attempt to mutually resolve the dispute informally via negotiation. If the dispute has not been resolved after 30 days, the parties agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach, by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. The arbitration will be conducted in New Castle County, Delaware, unless otherwise agreed. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator may include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing either party from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of its data security, intellectual property rights or other proprietary rights.

12.5. Relationship of the Parties. Nothing in this Agreement is to be construed as creating an agency, partnership, or joint venture relationship between the parties hereto. Neither party shall have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.

12.6. Notices. All notices permitted or required under this Agreement shall be in writing and shall be deemed to have been given when delivered in person (including by overnight courier), or three business days after being mailed by first class, registered or certified mail, postage prepaid, to the address of the party specified in this Agreement or such other address as either party may specify in writing.

12.7. U.S. Government Restricted Rights. If the Platform is being licensed by the U.S. Government, the Platform is commercial computer software and documentation developed exclusively at private expense, and (i) if acquired by or on behalf of a civilian agency, shall be subject to the terms of this computer software license as specified in 48 C.F.R. 12.212 of the Federal Acquisition Regulations and its successors; and (ii) if acquired by or on behalf of units of the Department of Defense (“DOD”) shall be subject to the terms of this commercial computer software license as specified in 48 C.F.R. 227.7202-2, DOD FAR Supplement and its successors.

12.8. Export Law Assurances. Customer understands that the Platform, Services, Output Customer Data, Derivative Data, and/or One Codex Data are or may be subject to export control laws and regulations. CUSTOMER MAY NOT DOWNLOAD OR OTHERWISE EXPORT OR RE-EXPORT THE PLATFORM, SERVICES OR ANY TECHNICAL OR OTHER DATA PROVIDED IN CONNECTION THEREWITH OR ANY UNDERLYING INFORMATION OR TECHNOLOGY EXCEPT IN FULL COMPLIANCE WITH ALL LAWS AND REGULATIONS, IN PARTICULAR, BUT WITHOUT LIMITATION, UNITED STATES EXPORT CONTROL LAWS. NONE OF THE PLATFORM, SERVICES OR ANY UNDERLYING INFORMATION OR TECHNOLOGY MAY BE DOWNLOADED OR OTHERWISE EXPORTED OR RE- EXPORTED: (A) INTO (OR TO A NATIONAL OR RESIDENT OF) ANY COUNTRY TO WHICH THE UNITED STATES HAS EMBARGOED GOODS; OR (B) TO ANYONE ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS OR THE U.S. COMMERCE DEPARTMENT’S LIST OF PROHIBITED COUNTRIES OR DEBARRED OR DENIED PERSONS OR ENTITIES. CUSTOMER HEREBY AGREES TO THE FOREGOING AND REPRESENTS AND WARRANTS THAT CUSTOMER IS NOT LOCATED IN, UNDER CONTROL OF, OR A NATIONAL OR RESIDENT OF ANY SUCH COUNTRY OR ON ANY SUCH LIST.

12.9. Counterparts; Electronic Signature. This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Execution of a facsimile or electronic copy will have the same force and effect as execution of an original, and a facsimile or electronic signature will be deemed an original and valid signature.

12.10. Advice of Legal Counsel. Each party acknowledges and represents that, in executing this Agreement, it has had the opportunity to seek advice as to its legal rights from legal counsel and that the person signing on its behalf has read and understood all of the terms and provisions of this Agreement. This Agreement shall not be construed against any party by reason of the drafting or preparation thereof.

12.11. Costs. If any action at law or in equity (including arbitration) is necessary to enforce or interpret the terms of this Agreement, the prevailing party may be entitled to reasonable attorney’s fees, costs and necessary disbursements in addition to any other relief to which such party may be entitled.