Master Service Agreement

Term. Subject to earlier termination as provided below, this Agreement will commence on the Effective Date specified in the Order Form and will continue for the Initial Term ("Term").

Termination. A Party may terminate this Agreement for cause (a) by Optimal AI for convenience, upon written notice; (b) upon notice to the other Party of a material breach and the breaching Party fails to cure the breach within thirty (30) days of receipt of notice of that breach; (c) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (d) immediately by Optimal AI if Customer makes one of the prohibited uses set forth in Section 4. Non-payment of Fees by Customer for sixty (60) days after issuance of an invoice, and any violation of the Prohibited Uses clause below will be considered material breaches of this Agreement.

Effect of Termination and Survival. Upon termination of this Agreement, Optimal AI Inc. will cease providing the Services and promptly invoice Customer for any unpaid amounts owed, and Customer will pay Optimal AI. for all Services rendered and expenses incurred prior to the effective date of termination. If termination is the result of a material, uncured breach by Optimal AI, Customer is entitled to a pro-rata refund of any pre-paid fees. Any refund of Service Fees whatsoever under this Agreement shall exclude any one-time professional Service Fees or Service. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

Subject to and conditioned on Customer's payment of the Fees and compliance and performance in accordance with all other terms and conditions of this Agreement, Optimal AI hereby authorizes Customer to access and use, during the Term, the Services and its software application that provides remote access to the Services. This authorization is non-exclusive and other than as may be expressly set forth in Section 10, non-transferable.

For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits (a) copy, modify or create derivative works or improvements of the Services; (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available any Services to any other person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service; (c) reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services, in whole or in part; (d) bypass or breach any security device or protection used by the Services or access or use the Services other than by an authorized user through the use of his or her own then valid Access Credentials; (e) input, upload, transmit or otherwise provide to or through the Services, any information or materials that are unlawful or injurious, or contain, transmit or activate any harmful code; (f) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Services or Optimal AI's provision of services to any third party, in whole or in part; (g) remove, delete, alter or obscure any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Services; (h) access or use the Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right of any third party or that violates any applicable law; (i) access or use the Services for purposes of competitive analysis of the Services, the development, provision or use of a competing software service or product or any other purpose that is to Optimal AI's detriment or commercial disadOptimal AIge; or (j) otherwise access or use the Services beyond the scope of the authorization granted under Section 4.1.

Further, Customer may not remove or export from the United States or allow the export or re-export of the Services or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Services and documentation are "commercial items" and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be "commercial computer software" and "commercial computer software documentation." Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, "Equipment"). Customer shall also be responsible for maintaining the security of the Equipment, Access Credentials and files, and for all uses of Access Credentials or the Equipment with or without Customer's knowledge or consent.

Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose business, technical or financial information relating to the Disclosing Party's business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). Proprietary Information of Optimal AI includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Optimal AI. to enable the provision of the Services ("Customer Data"). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

Customer shall own all rights, title and interest in and to the Customer Data and Projects, as well as any data that is based on or derived from the Customer Data and Projects and provided to Customer as part of the Services. Optimal AI shall own and retain all rights, title and interest in and to (a) the Services, all improvements, enhancements, or modifications thereto, (b) any software, applications, inventions, or other technology developed in connection with technical support services, and (c) all intellectual property rights related to any of the foregoing.

Notwithstanding anything to the contrary, Optimal AI shall have the right to collect and analyze data and other information relating to the provision, use, and performance of various aspects of the Services and related systems and technologies and Optimal AI will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Optimal AI offerings, and (ii) disclose such data solely in aggregate or other de-identified forms in connection with its business. No rights or licenses are granted except as expressly set forth herein.

Customer acknowledges and agrees that the Services include materials and information, including open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Optimal AI (the "Third Party Materials"). Any rights relating to the Third Party Materials may only be granted under the respective open-source copyright license agreement, including any GNU General Public License or GNU Library or Lesser Public License, the MIT License, or other obligation, restriction or license agreement that substantially conforms to the Open Source Definition as prescribed by the Open Source Initiative or otherwise may require disclosure or licensing to any third party of any source code with which such software component is used or compiled.

Optimal AI employs security measures in accordance with applicable industry practice and maintains a data breach plan. Optimal AI's current security and data protection practices are set forth at https://getoptimal.ai/security (the "Security Statement").

Optimal AI's Services do not replace the need for Customer to maintain regular data backups or redundant data archives. Customer has no obligation or liability for any loss, alteration, destruction, damage, corruption, or recovery of Customer Data.

Customer acknowledges that the Services are not designed with security and access management for processing the following categories of information (a) any information that can identify a specific individual or by or from which a specific individual may be identified, contacted, or located; (b) "nonpublic personal information" under the Gramm-Leach-Bliley Act; (c) "protected health information" as defined under the Health and Insurance Portability and Accountability Act of 1996; (d) "Personal Data" as defined in the EU Data Protection Directive (Directive 95/46/EEC); (e) "Personal Information" as defined under the Children's Online Privacy Protection Act of 1998; (f) data that is classified and or used on the U.S. Munitions list, including software and technical data; (g) articles, services and related technical data designated as defense articles or defense services; and (h) ITAR (International Traffic in Arms Regulations) related data, (each of the foregoing, "Prohibited Data"). Customer shall not, and shall not permit its authorized users to, provide any Prohibited Data to, or process any Prohibited Data through, the Services. Customer is solely responsible for reviewing all Customer Data and shall ensure that no Customer Data constitutes or contains any Prohibited Data.

Optimal AI shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner that minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Optimal AI Intelligence or by third-party providers, or because of other causes beyond Optimal AI's reasonable control, but Optimal AI shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, Optimal AI DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED "AS IS" AND Optimal AI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

Optimal AI shall hold Customer harmless from liability to third parties resulting from infringement by Optimal AI of any United States patent or any copyright or misappropriation of any trade secret, provided Optimal AI is promptly notified of any and all threats, claims, and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Optimal AI will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Optimal AI, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Optimal AI, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer's use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Optimal AI to be infringing, Optimal AI may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer's rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY, AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE CONCERNING ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND OPTIMAL AI, INC.'S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES TO BE PAID BY CUSTOMER TO OPTIMAL AI INC.'s FOR THE FULL SERVICES UNDER THIS AGREEMENT IN EACH CASE, WHETHER OR NOT OPTIMAL AI, INC.'s INTELLIGENCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Severability. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

Assignment. This Agreement is not assignable, transferable, or sublicensable by Customer except with Optimal AI's prior written consent. Optimal AI may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties, 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. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Optimal AI in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and reasonable attorneys' fees.

Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

Governing Law, Jurisdiction, Venue. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Any legal proceeding arising out of or relating to this Agreement will be brought in the state and federal courts of San Francisco County, California. Each Party consents to the exclusive jurisdiction and venue of such courts.

Force Majeure. Notwithstanding the obligations pertaining to monetary payments, neither party shall be held liable for any failure or delay in performing its obligations under this Agreement attributable, either directly or indirectly, to circumstances beyond its reasonable control. Such circumstances shall include, but are not limited to, fire, explosion, earthquake, adverse weather conditions, inability to access telecommunications or internet services, pandemic, strike, lockout, scarcity of essential components, labor unrest or disturbances, war, insurrection, riot, acts of God, hostile acts of public enemies, laws, decrees, regulations, ordinances, mandates of government or any public authority, or judgments or decrees by a court of competent jurisdiction, provided such are not resultant from a breach of this Agreement by the party claiming relief.

Anti-Corruption. Without limiting the foregoing, each Party represents and warrants that (i) in connection with this Agreement, it has not and will not make any payments or gifts or any offers or promises of payments or gifts of any kind, directly or indirectly, to any official of any foreign government or any agency or instrumentality thereof and (ii) it will comply in all respects with the U.S. Foreign Corrupt Practices Act and similar domestic or foreign law.

Publicity and Marketing. Optimal AI may use Customer's name, logo, and trademarks solely to identify Customer as a client of Optimal AI on Optimal AI's website and other marketing materials and in accordance with Customer's trademark usage guidelines.