Service Terms and Conditions

PLEASE READ THESE SERVICE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE SERVICE OFFERED BY AMBIENT AI, INC. (“AMBIENT”). BY MUTUALLY EXECUTING ONE OR MORE ORDER FORMS WITH COMPANY WHICH REFERENCE THESE TERMS (EACH, AN “ORDER”) OR BY ACCESSING OR USING THE SERVICES IN ANY MANNER, YOU (“YOU” OR “CUSTOMER”) AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT; IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF AN ORGANIZATION OR ENTITY, REFERENCES TO “CUSTOMER” AND “YOU” IN THIS AGREEMENT, EXCEPT THIS SENTENCE, REFER TO THAT ORGANIZATION OR ENTITY. IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER. IF THE TERMS OF THIS AGREEMENT ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO SUCH TERMS.

1. Scope of Service and Restrictions

1.1. Access to Service.

Subject to the terms and conditions set forth in this Agreement, the Customer may place Orders for the service specified therein (the “Service”). Subject to Ambient’s receipt of the applicable Fees with respect to the service specified in the corresponding Order, Ambient will use commercially reasonable efforts to make the Service available to Customer as set forth in this Agreement and the applicable Order. Subject to Customer’s compliance with the terms and conditions of the Agreement and the Order, Customer may access and use the Service during the period specified in the Order. Any such use of the Service by Customer is solely for Customer’s internal business. Customer’s use of the Service shall be limited to the scope of service specified in the applicable Order (the “Entitlement”).

1.2. Restrictions.

Customer will use the Service only in accordance with all applicable laws, including, but not limited to, laws related to data. Customer agrees not to, and will not allow any third party to: (i) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discover the underlying structure, ideas, or algorithms of the Service or any software used to provide or make the Service available; or (iii) rent, resell or otherwise allow any third party access to or use of the Service.

1.3. Ownership.

Ambient retains all right, title, and interest in and to the Service, and any software or other intellectual property created, used, provided or made available by Ambient under or in connection with the Service. Customer may from time to time provide suggestions, comments or other feedback to Ambient with respect to the Service (“Feedback”). Customer shall, and hereby does, grant to Ambient a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose.

1.4. Software; Additional Products and Services

Subject to the terms and conditions of this Agreement, including but not limited to receipt of all applicable Fees, to the extent Ambient makes Ambient proprietary software available to Customer, Ambient hereby grants to Customer, a limited, non-exclusive, non-transferable, non-assignable and non-sublicenseable license to: run such software solely as necessary to make use of the Service. Customer agrees that, it shall not: (a) exceed the scope of the licenses granted in Section 1.4; (b) make copies of the software; (c) distribute, sublicense, assign, delegate, rent, lease, sell, time-share or otherwise transfer the benefits of, use under, or rights to, the license granted in Section 1.4; (d) reverse engineer, decompile, disassemble or otherwise attempt to learn the source code, structure or algorithms underlying the software, except to the extent required to be permitted under applicable law; (e) modify, translate or create derivative works of the software; or (f) remove any copyright, trademark, patent or other proprietary notice that appears on the software or copies thereof; Ambient may make available to Customer certain additional services and products, including but not limited to: training and consulting services; video equipment; computer systems; and related products and services, each as identified in an Order (collectively, the “Additional Products and Services”). The terms and conditions with respect to the Additional Products and Services are specified in the applicable Order.

1.5. Customer Data.

Customer is solely responsible for Customer Data including, but not limited to: (a) compliance with all applicable laws and this Agreement; (b) any claims relating to Customer Data, including but not limited to intellectual property infringement and misappropriation claims; and (c) backing up and maintaining Customer Data. Customer hereby grants to Ambient a limited license to use the Customer Data in connection with the Service and to make improvements thereto. Customer acknowledges and consents to the collection of Customer Data resulting from the activities and obligations set forth in this Agreement, including but not limited to periodic collection of information in connection with improvements to the Service. For purposes of this Agreement, “Customer Data” shall mean any data, information or other material collected by or uploaded to the Service. Notwithstanding anything to the contrary, Ambient may freely use Aggregated De-identified Data for Ambient’s business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Ambient’s current and future products and services). “Aggregated De-identified Data” means data submitted to, collected by, or generated by Ambient in connection with Customer’s use of the Service, but only in aggregate, de-identified form which is not linked specifically to Customer or any individual. Ambient shall use commercially reasonable efforts to maintain the security and integrity of the Service and the Customer Data. Customer agrees and acknowledges that Customer Data may be irretrievably deleted if Customer’s account is terminated. Customer acknowledges and agrees that the use of the Service does not require Ambient’s processing of or access to Customer’s personally identifiable information, and Customer will not provide or make available such information to Ambient. Customer may use Additional Products and Services in connection with personally identifiable information to the extent such Additional Products and Services are used and or run internally in Customer’s environment and no personally identifiable information is made available to Ambient.

1.6. Uptime and Support; Service Suspension.

Subject to Customer’s payment of the corresponding Fees, Ambient will use commercially reasonable efforts to make the Service available to Customer according to the service level specified in the applicable Order (the “SLA”). Ambient may suspend Customer’s access to or use of the Service immediately if Ambient reasonably believes Customer’s use of the Service may pose a security risk to or may adversely impact the Service.

2. Fees and Payment Terms

2.1. Fees

Customer shall pay to Ambient the fees as set forth in each applicable Order(s) (collectively, the “Fees”). Customer acknowledges that it shall have no right of return with respect to the Service, and that all Fees are non-refundable. Notwithstanding any other rights of Ambient, in the event of late payment by Customer, Ambient shall be entitled to interest on the amount owing at a rate of 1% per month or the highest rate allowed by applicable law, whichever is less. Fees are exclusive of any taxes that might be assessed by any jurisdiction. Customer shall pay or reimburse Ambient for all sales, use, and similar taxes; all customs duties, import fees, stamp duties, license fees and similar charges; and all other mandatory payments to government agencies of whatever kind, except taxes imposed on the net or gross income of Ambient. All amounts payable to Ambient under this Agreement shall be without set-off and without deduction of any taxes, levies, imposts, charges, withholdings and/or duties of any nature which may be levied or imposed, including without limitation, value added tax, customs duty and withholding tax.

2.2. Payment Terms

Ambient will invoice Customer according to the billing frequency stated in the Order, and unless otherwise specified in the corresponding Order, all Fees are due no later than thirty (30) days from the date of the applicable invoice and shall be paid in United States dollars. If any invoiced amount is not received by Ambient by the due date, Ambient may, without limiting its rights or remedies, apply a late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.

3. Term and Termination

3.1. Term

The term of this Agreement shall commence on the Effective Date and unless terminated earlier according to this Section 3, will end on the last day of the term specified in the last Order (the “Term”). Each Order will renew automatically at the end of the applicable term unless either party provides to the other advance written notice with respect to non-renewal at least thirty (30) days prior to the end of the then current term.

3.2. Termination

This Agreement and the Orders hereunder may be terminated: (a) by either party if the other has materially breached this Agreement, within thirty (30) calendar days after written notice of such breach to the other party if the breach is remediable or immediately upon notice if the breach is not remediable; (b) by Ambient upon written notice to Customer if Customer (i) has made or attempted to make any assignment for the benefit of its creditors or any compositions with creditors, (ii) has any action or proceedings under any bankruptcy or insolvency laws taken by or against it which have not been dismissed within sixty (60) days, (iii) has effected a compulsory or voluntary liquidation or dissolution, or (iv) has undergone the occurrence of any event analogous to any of the foregoing under the law of any jurisdiction; or (c) If any amount owing by Customer is thirty (30) or more days overdue.

3.3. Effect of Termination.

Upon any expiration or termination of this Agreement, Customer shall (i) immediately cease use of the Service, and (ii) return all Ambient Confidential Information and other materials and information provided by Ambient. Any termination or expiration shall not relieve Customer of its obligation to pay all Fees accruing prior to termination. If the Agreement is terminated due to Section 3.2 (a) Customer shall pay to Ambient all Fees set forth in the corresponding Order(s). Ambient may destroy or delete any Customer Data following ten (10) days from the date or termination or expiration

3.4. Survival.

Subject to the terms and conditions of this Agreement, including but not limited to receipt of all applicable Fees, to the extent Ambient makes Ambient proprietary software available to Customer, Ambient hereby grants to Customer, a limited, non-exclusive, non-transferable, non-assignable and non-sublicenseable license to: run such software solely as necessary to make use of the Service. Customer agrees that, it shall not: (a) exceed the scope of the licenses granted in Section 1.4; (b) make copies of the software; (c) distribute, sublicense, assign, delegate, rent, lease, sell, time-share or otherwise transfer the benefits of, use under, or rights to, the license granted in Section 1.4; (d) reverse engineer, decompile, disassemble or otherwise attempt to learn the source code, structure or algorithms underlying the software, except to the extent required to be permitted under applicable law; (e) modify, translate or create derivative works of the software; or (f) remove any copyright, trademark, patent or other proprietary notice that appears on the software or copies thereof; Ambient may make available to Customer certain additional services and products, including but not limited to: training and consulting services; video equipment; computer systems; and related products and services, each as identified in an Order (collectively, the “Additional Products and Services”). The terms and conditions with respect to the Additional Products and Services are specified in the applicable Order.

4. Confidentiality

During the term of this Agreement, either party may provide the other party with confidential and/or proprietary materials and information (“Confidential Information”). All materials and information provided by the disclosing party and identified at the time of disclosure as “Confidential” or bearing a similar legend, and all other information that the receiving party reasonably should have known was the Confidential Information of the disclosing party, shall be considered Confidential Information. This Agreement is Confidential Information, and all pricing terms are Ambient Confidential Information. The receiving party shall maintain the confidentiality of the Confidential Information and will not disclose such information to any third party without the prior written consent of the disclosing party. The receiving party will only use the Confidential Information internally for the purposes contemplated hereunder. The obligations in this Section shall not apply to any information that: (a) is made generally available to the public without breach of this Agreement, (b) is developed by the receiving party independently from and without reference to the Confidential Information, (c) is disclosed to the receiving party by a third party without restriction, or (d) was in the receiving party’s lawful possession prior to the disclosure and was not obtained by the receiving party either directly or indirectly from the disclosing party. The receiving party may disclose Confidential Information as required by law or court order; provided that, the receiving party provides the disclosing with prompt written notice thereof and uses the receiving party’s best efforts to limit disclosure. At any time, upon the disclosing party’s written request, the receiving party shall return to the disclosing party all disclosing party’s Confidential Information in its possession, including, without limitation, all copies and extracts thereof.

5. Indemnification

5.1. Indemnification by Customer

Customer will defend, indemnify, and hold Ambient, its affiliates, suppliers and licensors harmless and each of their respective officers, directors, employees and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim with respect to: (a) Customer Data; (b) any action or failure to act based on the Customer’s use or reliance on the output of the Service; (c) any Resulting Uses; (d) breach of this Agreement or violation of applicable law by Customer; or (e) alleged infringement or misappropriation of third-party’s intellectual property rights resulting from Customer Data.

5.2. Indemnification by Ambient.

Ambient will defend, indemnify, and hold Customer harmless from and against any third party claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising from claims by a thirty party that Customer’s use of the Service directly infringes or misappropriates a third party’s United States (or Berne Convention signatory country) intellectual property rights (an “Infringement Claim”). Notwithstanding any other provision in this Agreement, Ambient shall have no obligation to indemnify or reimburse Customer with respect to any Infringement Claim to the extent arising from: (a) the combination of any Customer Data with the Service; (b) the combination of any products or services, other than those provided by Ambient to Customer under this Agreement, with the Service; or (c) non-discretionary designs or specifications provided to Ambient by Customer that caused such Infringement Claim. Customer agrees to reimburse Ambient for any and all damages, losses, costs and expenses incurred as a result of any of the foregoing actions.

5.3. Notice of Claim and Indemnity Procedure.

In the event of a claim for which a party seeks indemnity or reimbursement under this Section 5 (each an “Indemnified Party”) and as conditions of the indemnity, the Indemnified Party shall: (a) notify the indemnifying party in writing as soon as practicable, but in no event later than thirty (30) days after receipt of such claim, together with such further information as is necessary for the indemnifying party to evaluate such claim; and (b) the Indemnified Party allows the indemnifying party to assume full control of the defense of the claim, including retaining counsel of its own choosing. Upon the assumption by the indemnifying party of the defense of a claim with counsel of its choosing, the indemnifying party will not be liable for the fees and expenses of additional counsel retained by any Indemnified Party. The Indemnified Party shall cooperate with the indemnifying party in the defense of any such claim. Notwithstanding the foregoing provisions, the indemnifying party shall have no obligation to indemnify or reimburse for any losses, damages, costs, disbursements, expenses, settlement liability of a claim or other sums paid by any Indemnified Party voluntarily, and without the indemnifying party’s prior written consent, to settle a claim. Subject to the maximum liability set forth in Section 7, the provisions of this Section 5 constitute the entire understanding of the parties regarding each party’s respective liability under this Section 5, including but not limited to Infringement Claims (including related claims for breach of warranty) and each party’s sole obligation to indemnify and reimburse any Indemnified Party.

6. Warranty

6.1. Warranty.

The Service, when used by Customer in accordance with the provisions of this Agreement and in compliance with the applicable Order, will perform, in all material respects, the functions described in the Documentation during the Term.

6.2. Exclusive Remedies.

Customer shall report to Ambient, pursuant to the notice provision of this Agreement, any breach of the warranties set forth in this Section 6. In the event of a breach of warranty by Ambient under this Agreement, Customer’s sole and exclusive remedy, and Ambient’s entire liability, shall be prompt correction of any material non-conformance in order to minimize any material adverse effect on Customer’s business.

6.3. Disclaimer of Warranty.

Ambient does not represent or warrant that the operation of the Service (or any portion thereof) will be uninterrupted or error free, or that the Service (or any portion thereof) will operate in combination with other hardware, software, systems or data not provided by Ambient, except as expressly specified in the applicable Documentation. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.1, AMBIENT MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE SERVICE OR SERVICES, OR THEIR CONDITION. AMBIENT IS FURNISHING THE WARRANTIES SET FORTH IN SECTION 6.1 IN LIEU OF, AND AMBIENT HEREBY EXPRESSLY EXCLUDES, ANY AND ALL OTHER EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES, WHETHER UNDER COMMON LAW, STATUTE OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY AND ALL WARRANTIES AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY OR NON-INFRINGEMENT OF THIRD-PARTY RIGHTS.

6.4. Resulting Uses

CUSTOMER IS SOLELY RESPONSIBE FOR ANY USE OF THE RESULTS OR OUTPUT OF THE SERVICES AND ALL ACTIONS OR OMISSIONS RESULTING THEREFROM (THE “RESULTING USES”). CUSTOMER ASSUMES ALL RISK AND LIABILITY WITH RESPECTED TO RESULTING USES, AND CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICE ARE NOT DESIGNED OR INTENDED FOR USE IN APPLICATIONS OR IN A MANNER WHICH FAILURE OF SUCH SERVICE OR USE COULD REASONABLY BE EXPECTED TO RESULT IN PERSONAL INJURY, LOSS OF LIFE, OR CATASTROPHIC PROPERTY DAMAGE.

7. Limitations of Liability

IN NO EVENT SHALL AMBIENT BE LIABLE FOR (A) ANY LOST DATA, LOST PROFITS, BUSINESS INTERRUPTION, REPLACEMENT SERVICE OR OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY; OR (B) ANY RESULTING USES. AMBIENT’S LIABILITY FOR ALL CLAIMS ARISING UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER UNDER THE APPLICABLE ORDER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE CLAIM.

8. Miscellaneous

8.1. Export Control.

Customer hereby certifies that Customer will comply with all current US Export Control laws. Customer agrees to defend, indemnify and hold Ambient harmless from any liability for Customer’s violation of U.S. Export Control laws.

8.2. Compliance with Laws.

Customer shall comply with all applicable laws and regulations in its use of any Service, including without limitation the unlawful gathering or collecting, or assisting in the gathering or collecting of information in violation of any privacy laws or regulations. Customer shall, at its own expense, defend, indemnify and hold harmless Ambient from and against any and all claims, losses, liabilities, damages, judgments, government or federal sanctions, costs and expenses (including attorneys’ fees) incurred by Ambient arising from any claim or assertion by any third party of violation of privacy laws or regulations by Customer or any of its agents, officers, directors or employees.

8.3. Assignment.

Neither party may transfer and assign its rights and obligations under this Agreement without the prior written consent of the other party. Notwithstanding the foregoing, Ambient may transfer and assign its rights under this Agreement without consent from the other party in connection with a change in control, acquisition or sale of all or substantially all of its assets.

8.4. Force Majeure

Neither party shall be responsible for failure or delay in performance by events out of their reasonable control, including but not limited to, acts of God, Internet outage, terrorism, war, fires, earthquakes and other disasters (each a “Force Majeure”). Notwithstanding the foregoing: (i) Customer shall be liable for payment obligations for Service rendered; and (ii) if a Force Majeure continues for more than thirty (30) days, either party may terminate this agreement by written notice to the other party.

8.5. Notice

All notices between the parties shall be in writing and shall be deemed to have been given if personally delivered or sent by registered or certified mail (return receipt), or by recognized courier service to the address specified in the corresponding Order.

8.6. No Agency.

Both parties agree that no agency, partnership, joint venture, or employment is created as a result of this Agreement. Customer does not have any authority of any kind to bind Ambient.

8.7. Governing Law.

This Agreement shall be governed exclusively by, and construed exclusively in accordance with, the laws of the United States and the State of California, without regard to its conflict of laws provisions. The federal courts of the United States in the Northern District of California and the state courts of the State of California shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non conveniens or otherwise. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement or any Purchase Order issued under this Agreement.

8.8. Publicity

Customer hereby grants Ambient the right to identify Customer as an Ambient Customer, and use Customer’s name, mark and/or logo on Ambient’s website and/or in Ambient’s marketing materials with respect to the same. Customer also agrees to be a reference account and participate in preparation of a case study and other marketing collateral with Ambient upon successful initial implementation.

8.9. Entire Agreement.

This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in writing signed by both parties, except as otherwise provided herein. Any term or provision of this Agreement held to be illegal or unenforceable shall be, to the fullest extent possible, interpreted so as to be construed as valid, but in any event the validity or enforceability of the remainder hereof shall not be affected. In the event of a conflict between this Agreement and the Order document, the terms of this Agreement shall control.