End User License Agreement

A legally binding contract is immediately formed upon your acceptance of this Agreement. The licensee who is bound by this Agreement ("Licensee") is: (i) the individual accepting this Agreement, if the individual is licensing the Software for his or her personal use or use as a sole proprietor; or (ii) the corporation, limited liability company, institution, partnership, organization or other entity ("Organization") on whose behalf the individual accepting this Agreement is acting. Licensee represents that the name provided to Fabrix.ai, if any, is its full and correct legal name.

Changes. Fabrix.ai may revise and update this Agreement, or make changes to or discontinue the Software (in whole or in part), from time to time in its sole discretion; provided, however, that Fabrix.ai will provide at least sixty (60) days’ prior notice to Licensee if Fabrix.ai decides to discontinue the Software or change the Software in any way that reduces the Software’s material features or functionality. Fabrix.ai will not be obligated to provide notice under this Section 1.3 if the change or discontinuation is necessary to address an emergency, respond to claims, litigation, or loss of license rights related to third-party intellectual property 9804476rights, or comply with the law or requests of a government entity. Changes to this Agreement are effective immediately when posted, but are not retroactive. Licensee’s continued use of the Software following the posting of a revised Agreement means that Licensee accepts and agrees to the changes. As a courtesy, Fabrix.ai will make a good faith effort to notify Licensee of any material changes to this Agreement using the e-mail address that Fabrix.ai has on file for Licensee. However, it is Licensee’s responsibility to check this page frequently so that Licensee is aware of any changes, and immediately discontinue Licensee’s use of and all other activities with respect to the Software if Licensee does not want to agree to the revised Agreement.

Subject to the terms and conditions of this Agreement, Fabrix.ai hereby grants Licensee a limited, nonexclusive, nontransferable right and license, with no right to grant sublicenses, for Authorized Users to (a) install and Use the Software (i) solely in object code format, and (ii) solely for the Usage Purpose; and (b) Use the Documentation.

Licensee shall: (i) use commercially reasonable efforts to prevent unauthorized installation, access to or Use of the Software; (ii) ensure that all Authorized Users comply with all of the terms and conditions of this Agreement, including the limitations and restrictions set forth in Section 2.4; (iii) be solely responsible for any Licensee Content, including compliance with any restrictions imposed by the author of the content and any violations of intellectual property or privacy rights; and (iv) Use the Software in compliance with all applicable laws, rules and regulations (including those relating to export, homeland security, anti-terrorism, data protection and privacy) and the Documentation. Licensee shall be responsible for any breach of this Agreement by Authorized Users and any installation or Use of the Software by persons other than Authorized Users. Licensee shall immediately notify Fabrix.ai of any unauthorized installation or Use of the Software.

During the Term, Fabrix.ai shall provide commercially reasonable e-mail support and assistance to Licensee in connection with its Use of the Software, as more particularly described in Licensee’s Purchase Order and/or Statement of Work (the “Support Services”), which, Licensee agrees, unless Licensee has purchase a Support Services Package (as defined below), consists primarily of general guidance on Use and operation of the Software, troubleshooting common issues, and response to Frequently Asked Questions. Any updates, upgrades and patches provided by Fabrix.ai in connection with the Support Services will become a part of the Software hereunder, subject to all of the terms and conditions that govern the Use of the Software hereunder, and shall be provided to Licensee in Fabrix.ai’s sole discretion. All such Support Services shall be subject to the availability of Fabrix.ai personnel and shall be provided during the hours of 9:00 a.m. to 6:00 p.m. (California time) Monday through Friday, excluding federal holidays (“Regular Business Hours”). Unless otherwise specified in Licensee’s Support Services Package, turnaround time on Support Services is not guaranteed. Following initial installation and on-boarding, Licensee agrees that any requests for Support Services, whether by telephone, e-mail or in person, shall be submitted only when the Software does not execute or function in all material respects with its Documentation. Licensee acknowledges and agrees that Fabrix.ai shall not be obligated to provide Support Services outside of Regular Business Hours or in connection with any reported support request that Fabrix.ai reasonably determines is not attributable to a failure of the Software to operate in all material respects with its Documentation. Fabrix.ai reserves the right to charge Licensee at an hourly rate (on a time-and-materials basis) for Support Services provided (i) outside of Regular Business Hours, or (ii) in connection with a request Fabrix.ai reasonably determines is not attributable to a failure of the Software to operate in all material respects in accordance with its Documentation. Licensee may, for an additional fee, purchase additional Fabrix.ai commitments with respect to support levels, response times and other similar variables, as set forth in a separate agreement between Fabrix.ai and Licensee (“Support Services Package”).

Licensee represents and warrants to Fabrix.ai: (i) that it owns, or has the legal right to use, and permit Fabrix.ai to access and use, the Licensee Content as contemplated under this Agreement, and (ii) that all Licensee Content (and its disclosure to, access by and use by Fabrix.ai or the Software as contemplated under this Agreement) complies with all applicable federal, state and local laws, rules and regulations, third party license agreements, and Licensee’s own privacy policy. Fabrix.ai acknowledges and agrees that, as between Fabrix.ai and Licensee, Licensee (or its licensors) will retain sole and exclusive ownership of all Licensee Content provided by Licensee to Fabrix.ai in connection with this Agreement.

The Software may contain or be provided with open source software and/or software owned by third parties (“Third Party Software”) as identified in the Documentation. Licensee shall be licensed the right hereunder to use any such Third Party Software contained in or provided by Fabrix.ai with the Software, subject to the applicable restrictions and other terms and conditions of use set forth in the Documentation or in any “Third- Party Licenses ReadMe” file or similar file located in the installation directory for the Software.

During the Term, Fabrix.ai shall provide commercially reasonable e-mail support and assistance to Licensee in connection with its Use of the Software, as more particularly described in Licensee’s Purchase Order and/or Statement of Work (the “Support Services”), which, Licensee agrees, unless Licensee has purchase a Support Services Package (as defined below), consists primarily of general guidance on Use and operation of the Software, troubleshooting common issues, and response to Frequently Asked Questions. Any updates, upgrades and patches provided by Fabrix.ai in connection with the Support Services will become a part of the Software hereunder, subject to all of the terms and conditions that govern the Use of the Software hereunder, and shall be provided to Licensee in Fabrix.ai’s sole discretion. All such Support Services shall be subject to the availability of Fabrix.ai personnel and shall be provided during the hours of 9:00 a.m. to 6:00 p.m. (California time) Monday through Friday, excluding federal holidays (“Regular Business Hours”). Unless otherwise specified in Licensee’s Support Services Package, turnaround time on Support Services is not guaranteed. Following initial installation and on-boarding, Licensee agrees that any requests for Support Services, whether by telephone, e-mail or in person, shall be submitted only when the Software does not execute or function in all material respects with its Documentation. Licensee acknowledges and agrees that Fabrix.ai shall not be obligated to provide Support Services outside of Regular Business Hours or in connection with any reported support request that Fabrix.ai reasonably determines is not attributable to a failure of the Software to operate in all material respects with its Documentation. Fabrix.ai reserves the right to charge Licensee at an hourly rate (on a time-and-materials basis) for Support Services provided (i) outside of Regular Business Hours, or (ii) in connection with a request Fabrix.ai reasonably determines is not attributable to a failure of the Software to operate in all material respects in accordance with its Documentation. Licensee may, for an additional fee, purchase additional Fabrix.ai commitments with respect to support levels, response times and other similar variables, as set forth in a separate agreement between Fabrix.ai and Licensee (“Support Services Package”).

Subject to the terms of this Agreement, Fabrix.ai shall perform the additional implementation, development, customization, and/or training services (collectively, the “Professional Services”) that are mutually agreed upon and described in one or more Statements of Work to this Agreement. If there is a conflict between this Agreement and any Statement of Work, the terms of the Statement of Work shall govern the provision of the Professional Services involved; provided, however, that Sections 8 - 13 of this Agreement shall not be affected by the terms of any Statement of Work unless the parties have expressly provided otherwise in the Statement of Work, in which case this Agreement shall be so amended, solely with respect to such Statement of Work. Each Statement of Work shall include, without limitation, (i) a description of the Professional Services that Fabrix.ai is obligated to perform for Licensee, (ii) the specifications (“Specifications”) for such Professional Services, and (iii) the fees and payment terms applicable to such Statement of Work.

Fabrix.ai represents and warrants that: (i) it shall perform the Professional Services in a professional and workmanlike manner, and (ii) the Professional Services provided by Fabrix.ai shall substantially conform to the Specifications.

If Fabrix.ai is to produce any deliverables under a Statement of Work, unless otherwise specified in the Statement of Work, the following acceptance procedures will apply: (a) Upon completion of the deliverables specified in the Statement of Work (collectively, the “Deliverables”), Fabrix.ai will provide Licensee with written notice of completion of such Deliverables and with access to any necessary prototypes in order to conduct acceptance testing. Within five (5) business days after receipt of Fabrix.ai’s notice, Licensee must review such Deliverables to confirm whether such Deliverables are acceptable and conform to the applicable Specifications, and will notify Fabrix.ai in writing of Licensee’s acceptance (“Licensee Acceptance”) or Licensee’s rejection (“Licensee Rejection”) of such Deliverables; provided that if Licensee has not provided Fabrix.ai with a notice of a Licensee Rejection prior to the expiration of such 5-business day testing period, it will be deemed to be a Licensee Acceptance of such Deliverables. Each Licensee Rejection must include a detailed description of the specific way in which such Deliverables fail to conform to the applicable Specifications. (b) If Licensee rejects the Deliverables in accordance with Section 4.3(a) aboveError! Reference source not found., Fabrix.ai will, within ten (10) business days after receiving Licensee’s notice of such Licensee Rejection, either (i) correct any nonconformities in the Deliverables that correct any issues identified by Licensee and otherwise substantially conform to the applicable Specifications or (ii) to the extent such nonconformities cannot be corrected within such 10-business day period, provide Licensee with a plan to correct such nonconformities within a period of time that is reasonable under the circumstances and proceed according to such plan until such nonconformities have been corrected. Upon receipt of the new Deliverables, Licensee will again undertake the process described in Section 4.3(a) above to re-evaluate such Deliverables (each such evaluation cycle, a “Cycle”). Fabrix.ai and Licensee will conduct additional Cycles with respect to such Deliverables, as necessary, until Licensee Acceptance of such Deliverables. (c) Cycle Constraints. Under Section 4.3(b) above, Licensee is entitled to up to two (2) Cycles (less defect resolution) (“Maximum Cycles”) at no additional cost; provided, however, that Licensee acknowledges that if additional Cycles are required to reach Licensee Acceptance, Licensee will be required to reimburse Fabrix.ai for the cost of each Cycle in excess of the Maximum Cycles, in each case where such cost will be equal to (x) the actual number of hours required to complete the additional Cycles multiplied by (y) Fabrix.ai’s then-current standard hourly rate.

Licensee may at any time request in writing (including via e-mail) to Fabrix.ai modifications, updates or enhancements to the Deliverables provided (each, a “Change Request”). Fabrix.ai shall, within fifteen (15) business days after receiving a Change Request, evaluate the impact of such modifications, updates and/or enhancements and respond with a written proposal to effectuate such modifications, updates and/or enhancements, which shall set forth the estimated delivery timeline, the cost (including, without limitation, any affect or impact on the then-existing service fees) and any other terms applicable for effectuating such modifications, updates and/or enhancements. Licensee will, within ten (10) business days after receiving Fabrix.ai’s written proposal, notify Fabrix.ai in writing as to whether Licensee accepts Fabrix.ai’s written proposal. If Licensee fails to notify Fabrix.ai of its acceptance of Fabrix.ai’s written proposal, Licensee will be deemed to have rejected the written proposal and Fabrix.ai will have no further obligation to Licensee with respect to such Change Request. If Fabrix.ai’s written proposal is accepted by Licensee in writing, Fabrix.ai will use commercially reasonable efforts to complete such services in accordance with such proposal.

As consideration for the licenses and services provided by Fabrix.ai hereunder, Licensee shall pay to Fabrix.ai (or, where applicable, to Fabrix.ai’s Reseller) fees in the amounts and according to the payment schedule set forth in each applicable Purchase Order and/or Statement of Work. The applicable fees (including any fees specified in a Purchase Order and/or Statement of Work) are payable within the period set out in the applicable invoice (and if no period is set out in the invoice, within thirty (30) days of the date on which Licensee receives the invoice). If Licensee fails to make any payment when due then, in addition to all other remedies that may be available to Fabrix.ai: (a) Fabrix.ai (or, where applicable, Fabrix.ai’s Reseller) may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; and (b) if such failure continues for fifteen (15) calendar days following written notice that such payment is past due, Fabrix.ai may suspend any and all license rights granted hereunder until all past due amount and interest thereon have been paid. The remedies specified in this Section 6 are in addition to, and not in lieu of, Fabrix.ai’s right to terminate this Agreement under Section 7. All fees are non-cancelable and non-refundable. Fabrix.ai may, not more than one time during any calendar year, increase its fees; provided that (x) it provides written notice to Licensee at least sixty (60) calendar days prior to the effective date of such increase, and (y) any such fee increase shall not exceed the greater of five percent (5%) or any increase to the consumer price index (CPI) since the immediately preceding fee increase. All fees are exclusive of any applicable taxes, levies, duties or similar government charges or assessments of any nature, including sales taxes, value-added taxes and withholding taxes (collectively, “Taxes”). If Fabrix.ai or its Reseller has a legal obligation to pay or collect Taxes, the appropriate amount shall be invoiced to and paid by Licensee, unless Licensee provides Fabrix.ai (and, where applicable, its Reseller) with an acceptable tax exemption certificate issued by the appropriate taxing authority.

Licensee’s right to Use the Software pursuant to this Agreement shall commence on the Effective Date and shall continue, unless otherwise terminated as provided below or unless otherwise specified in Licensee’s Purchase Order and/or Statement of Work, for an initial term of twelve (12) months (the “Initial Term”), after which it will renew automatically for successive one (1) year terms (each, a “Renewal Term”) unless either party has given the other party written notice of an intent not to renew at least thirty (30) days prior to the expiration of the then-current Initial Term or Renewal Term. The Initial Term and the Renewal Term(s), if any, are referred to in this Agreement as the “Term.” For the avoidance of doubt, if this Agreement is terminated, any applicable Purchase Order and/or Statement of Work will also be terminated effective as of such date.

In addition to any other express termination right set forth elsewhere in this Agreement, this Agreement may be terminated at any time: (a) by Fabrix.ai, effective on written notice to Licensee, if Licensee fails to pay any amount when due under this Agreement, where such failure continues more than fifteen (15) calendar days after Fabrix.ai’s delivery of written notice thereof; (b) by either party, effective on written notice to the other party, if the other party materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; or (c) by either party, effective immediately, if the other party: (i) is dissolved or liquidated or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay its debts as they become due; (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.

Upon receipt by Licensee of written notice of termination from Fabrix.ai, or termination by Licensee, Licensee shall immediately (i) pay to Fabrix.ai (or, if applicable, to Fabrix.ai’s Reseller) any outstanding fees payable hereunder, and (ii) cease Using the Software, and shall within five (5) days after the date of such termination, (x) deliver to Fabrix.ai, or at Fabrix.ai’s written request destroy, and permanently erase from all devices and systems Licensee directly or indirectly controls, all installed and back-up copies of the Software, the Documentation, and Fabrix.ai’s Confidential Information (as defined below), including all documents, files and tangible materials (and any partial and complete copies) containing, reflecting, incorporating or based on any of the foregoing, whether or not modified or merged into other materials, and (y) provide Fabrix.ai with a written confirmation that Licensee has complied with all of the foregoing.

The provisions of Sections 2.3, 2.4, 7.3, 8, 9.2, 10, 11, 12, and 13 shall survive termination of this Agreement.

As between the parties, Fabrix.ai shall own and retain all right, title and interest in and to the Software and Documentation and in all of the methods, processes, techniques, software logic, software features and other intellectual property used in the Software, and in all of the patents, copyrights, trade secrets, trademarks and other intellectual property rights (“Intellectual Property Rights”) embodied in or related to the Software. Licensee acknowledges and agrees that its installation and use of the Software does not transfer to it any title to the Software nor the Intellectual Property Rights in the Software, and that it is acquiring no rights of any nature to the Software except for the license expressly granted under Section 2.2. Licensee shall not take any action that would challenge, jeopardize, limit or interfere in any manner with Fabrix.ai’s rights with respect to the Software.

Unless otherwise expressly specified in a Statement of Work, Fabrix.ai shall own and retain all right, title and interest in and to the Deliverables, and in all of the Intellectual Property Rights embodied in or related to such Deliverables. Licensee acknowledges that Fabrix.ai’s delivery of the Deliverables to Licensee does not transfer to Licensee any title to the Deliverables nor the Intellectual Property Rights in the Deliverables, and that Licensee is acquiring no rights of any nature to the Deliverables except for the limited license expressly granted in the applicable Statement of Work. If no license is expressly granted in the applicable Statement of Work, then Fabrix.ai grants to Licensee, during the Term, a limited, nonexclusive, nontransferable right and license, with no right to grant sublicenses, to access, copy and use the Deliverable (i) for the Usage Purpose, and (ii) solely in connection with the Software. Licensee shall not take any action that would challenge, jeopardize, limit or interfere in any manner with Fabrix.ai’s rights with respect to the Deliverables.

During the Term, Licensee may provide feedback to Fabrix.ai with respect to the performance and/or functionality of the Software, including, without limitation, any flaws, errors, bugs or other problems it discovers in the Software as well as suggested improvements or modifications of the Software. All feedback, information and suggestions provided by Licensee to Fabrix.ai with respect to the Software shall be deemed “Ideas and Suggestions”. To the extent any modifications, improvements, enhancements, upgrades, new releases or other derivative Works of the Software are developed by Fabrix.ai (collectively, “Derivative Works”) based upon Ideas or Suggestions submitted by Licensee, Licensee hereby irrevocably assigns to Fabrix.ai all rights to such Derivative Works and in all of the methods, processes, techniques and other intellectual property used in such Derivative Works, and in all of the Intellectual Property Rights embodied in or related to the use of such Derivative Works.

To the extent any modifications, enhancements, customizations, upgrades, new releases or other improvements of the Software are developed by Fabrix.ai (collectively, the “Improvements”), whether or not such Improvements are developed by Fabrix.ai in connection with the performance of any Professional Services, Licensee hereby acknowledges that, as between the parties, Fabrix.ai shall own and retain all right, title and interest in and to the Improvements and in all of the methods, processes, techniques, software logic, software features and other intellectual property used in such Improvements, and in all of the Intellectual Property Rights embodied in or related to such Improvements.

During the term of this Agreement and for a period of five years thereafter, each receiving party (each, a “Recipient”) shall hold in strict confidence any proprietary or confidential information (collectively, “Confidential Information”) of the other party (the “Discloser”) and shall not disclose Discloser’s Confidential Information to any thirdparty nor use the Discloser’s Confidential Information for any purpose except for purposes expressly provided for in this Agreement. The above restriction shall not be construed to restrict the use or disclosure of information disclosed by one party to the other that (i) is or becomes publicly known other than as a result of any act by the Recipient, (ii) is lawfully received by the Recipient from a third party not in a confidential relationship with the Discloser, (iii) was already rightfully known by the Recipient prior to receipt thereof from the Discloser, or (iv) after notice and an opportunity to object, is required by law to be disclosed. Notwithstanding the foregoing, each party’s confidentiality obligations set forth herein shall survive with respect to the other party’s Confidential Information that is a trade secret for so long as such Confidential Information continues to be a trade secret under applicable law.

Fabrix.ai warrants that, provided that Licensee complies with its obligations under Section 2.3 above, (i) the Software will perform substantially in accordance with the Documentation (excluding any errors in the Documentation, as determined by Fabrix.ai in good faith), and (ii) it has used and will use commercially reasonable efforts to ensure that the Software does not contain (and will not introduce) any malware including software viruses, trojan horses, worms, time bombs, logic bombs, trap doors, back doors, cancelbots, spyware, botnet nodes, keyloggers, root kits, or any other computer code, files or programs designed to disrupt, interrupt, disable, damage, destroy or limit the functionality of any device, software, system or telecommunications equipment of Licensee. Fabrix.ai’S ENTIRE RESPONSIBILITY AND OBLIGATION, AND LICENSEE’S EXCLUSIVE REMEDY, FOR ANY BREACH OF THE FOREGOING WARRANTIES SHALL BE FOR Fabrix.ai TO USE COMMERCIALLY REASONABLE EFFORTS TO CAUSE THE SOFTWARE TO COMPLY WITH SUCH WARRANTIES.

EXCEPT AS PROVIDED IN SECTIONS 4.2 (WITH RESPECT TO PROFESSIONAL SERVICES) AND 9.1 (WITH RESPECT TO THE SOFTWARE), THE SOFTWARE, SUPPORT SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE IN LAW OR EQUITY, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NON- INFRINGEMENT, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR THOSE ARISING OTHERWISE FROM A COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ARE SPECIFICALLY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW. WITHOUT LIMITING THE FOREGOING, Fabrix.ai DOES NOT WARRANT THAT: (i) THE SOFTWARE WILL MEET LICENSEE’S NEEDS OR REQUIREMENTS; (ii) THE SOFTWARE WILL RUN WITHOUT INTERRUPTION OR BE ERROR FREE; OR (iii) THE SOFTWARE IS IMPENETRABLE OR OTHERWISE MEETS ANY SECURITY STANDARDS. FOR PURPOSES OF THIS SECTION 9.2 (BUT NOT FOR PURPOSES OF SECTION 9.1), REFERENCES TO THE SOFTWARE INCLUDE THE THIRD PARTY SOFTWARE. Fabrix.ai MAKES NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, REGARDING THE THIRD PARTY SOFTWARE.