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VELOCITY ENGINE PLATFORM TERMS OF SERVICE AGREEMENT

ACCEPTANCE OF THIS AGREEMENT: BY ENTERING INTO A WRITTEN OR ELECTRONIC ORDER FORM WITH VELOCITY ENGINE THAT REFERENCES OR INCORPORATES THIS VELOCITY ENGINE PLATFORM TERMS OF SERVICE AGREEMENT (HEREINAFTER, THIS “AGREEMENT”), YOU HEREBY: (1) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW); AND (2) REPRESENT THAT YOU HAVE FULL LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW) ON BEHALF OF THE PERSON OR ENTITY NAMED IN THE ORDER FORM (THE “CUSTOMER”) AND TO BIND THE CUSTOMER TO THE TERMS OF THIS AGREEMENT.

1. DEFINITIONS

“Account” means the account registered in the name of Customer to access the Velocity Engine Service, including any sub-accounts registered for Authorized Users.

“Account Data” means the account information and data provided by Customer, which may include, name, location, e-mail address or other contact information, and billing information.

“AI Features” means the generative artificial intelligence and other machine learning functionality or features available through the Platform.

“AI Input” means the Customer Materials and/or Velocity Engine Materials, including in the form of prompts or queries, input by or on behalf of Customer into the AI Features.

“AI Output” means the output generated through the submission of AI Input to the AI Features.

“Authorized Users” means Customer’s employees, contractors, representatives, and/or agents, each who are authorized by Customer to use the Velocity Engine Service.

“Beta Features” means any beta versions of and/or beta features and/or functionality of the Platform, which are clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description, and made available by Velocity Engine to Customer hereunder.

“Customer Materials” means any and all data (including, Account Data), information, content, and/or other materials that are uploaded, submitted, and/or transmitted to the Platform, input into the AI Features, or otherwise provided to Velocity Engine, by Customer and/or any Authorized User in connection with the use of the Velocity Engine Platform, but expressly excluding Velocity Engine Materials.

“Documentation” means Velocity Engine’s then-current technical and functional documentation for the Platform made available to Customer hereunder.

“Intellectual Property Rights” means patents and patent applications, inventions (whether or not patentable), trademarks, service marks, trade dress, copyrights, trade secrets, know-how, data rights, specifications, mask-work rights, moral rights, author’s rights, and other intellectual property rights, as may exist now or hereafter come into existence, and all derivatives, renewals and extensions thereof, regardless of whether any of such rights arise under the laws of the United States or of any other state, country or jurisdiction.

“Order Form” means Velocity Engine’s standard written or electronic order form mutually agreed upon and executed by the parties for Customer’s purchase of access to the Velocity Engine Service set forth in such order form, including, but not limited to, the initial order form to which this Agreement is attached.

“Platform” means Velocity Engine’s proprietary hosted software platform, made available by Velocity Engine to Customer on a remote online basis pursuant to this Agreement, and any and all modified, updated, or enhanced versions thereof.

“Subscription Term” means the term of Customer’s subscription license to access the Velocity Engine Service as specified in the applicable Order Form, and any renewal(s) thereof pursuant to Section 4.1.

“Usage Parameters” means the maximum number of campaign assets and maximum number of user seats (if any) included in the subscription tier purchased by Customer as specified on the applicable Order Form(s), and any other parameters or restrictions applicable to the subscription purchased by Customer and/or otherwise specified in the Documentation, Order Form, or in writing by Velocity Engine regarding the use of the Velocity Engine Service by Customer and/or its Authorized Users.

“Velocity Engine Materials” means any templates, documents, forms, content and/or other materials that Velocity Engine makes available to Customer for use in connection with the Velocity Engine Service.

“Velocity Engine Service” means, as applicable, the operation of and provision of access to the Platform and AI Features, Beta Features, Documentation, Velocity Engine Materials, Support, and/or Implementation Services that are made available or provided by Velocity Engine to Customer under this Agreement.

2. ACCESS TO THE VELOCITY ENGINE SERVICE

2.1. Accounts. Customer agrees to, and shall ensure that its Authorized Users, provide and maintain Account Data that is true, accurate, current, up to date, and complete. Customer agrees that it will not, and will not permit any Authorized User or other third party to, create an Account or sign up to access the Velocity Engine Service using a false identity or fictitious name or information. Customer understands and agrees that Customer is solely responsible for maintaining the confidentiality of and protecting Customer’s and its Authorized Users’ passwords, license keys and/or other access credentials for the Account. Customer is solely responsible for any activity occurring under the Account, regardless of whether such activity is authorized by Customer. Customer agrees to notify Velocity Engine immediately of any unauthorized use of or access to the Account.

2.2. Right to Access to the Velocity Engine Service. Subject to the terms and conditions of this Agreement, Velocity Engine grants to Customer a personal, non-exclusive, non-sublicensable, non-transferable limited right, during the Subscription Term or an Evaluation Period (as defined in and subject to Section 2.3 below), to access and use, and permit its Authorized Users to access and use, the Velocity Engine Service, over the internet, solely for Customer’s own business purposes, in accordance with this Agreement and the Documentation, and subject to any applicable Usage Parameters or restrictions specified in the Documentation or by Velocity Engine in writing regarding the scope of use of the Velocity Engine Service.

2.3. Evaluation Version. Notwithstanding Section 2.2, if Customer has obtained the Velocity Engine Service (or any part thereof) for a proof of concept or otherwise on an evaluation basis (the “Evaluation Version”), Customer understands and agrees that the license set forth in Section 2.2 is granted to Customer by Velocity Engine for the evaluation period set forth on the Order Form (the “Evaluation Period”), solely for Customer’s own internal evaluation purposes, and subject to applicable Usage Parameters and any technical limitations implemented by Velocity Engine in the Evaluation Version. Unless otherwise set forth on the Order Form, Customer acknowledges and agrees that the Subscription Term will automatically commence upon expiration of the Evaluation Period, unless Customer has provided Velocity Engine with prior written notice of its intent to terminate the Agreement and/or Order Form prior to such expiration.

2.4. Beta Features. If Customer elects to access any Beta Features, Velocity Engine grants to Customer a non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Beta Features solely for Customer’s internal evaluation and subject to any and all technical limitations implemented in the Beta Features and/or other applicable limitations by Velocity Engine for the Beta Features. Beta Features are provided as-is, are not supported, and may be subject to additional terms as specified by Velocity Engine in writing and/or in the applicable documentation for the Beta Features. Nothing in this Agreement requires or otherwise obligates Velocity Engine to make available any Beta Features to Customer. Velocity Engine reserves the right to terminate Customer’s access to any Beta Features at any time, for any reason.

2.5. AI Features. The Platform utilizes and/or integrates AI Features which may be developed and owned by Velocity Engine or third parties. Certain AI Features provided by third parties may be subject to additional terms, conditions or policies (collectively, “AI Policies”). Customer agrees to and shall ensure its Authorized Users use the AI Features in accordance with the authorized use of the Platform as set forth in this Agreement and any applicable AI Policies. Velocity Engine’s current list of third party AI Features and any applicable AI Policies are available at www.velocityengine.co/models. If Customer does not agree to comply with the AI Policies (including, any updates thereto), Customer may notify Velocity Engine thereof and Velocity Engine shall disable access to the AI Features. Customer Materials processed using the AI Features and/or any AI Inputs or AI Outputs based on Customer Materials will not be used by Velocity Engine or third parties for any reason other than as necessary to provide Customer the AI Features as part of the Platform (including adaptive prompting as described below) or as expressly permitted in this Agreement, as required by law, or as necessary to enforce any AI Policies. Velocity Engine shall not use Customer Materials, or any AI Inputs or AI Outputs based on Customer Materials for training, improving, or developing its AI Features or other machine learning models unless the Customer elects to opt-in to such use by Velocity Engine. For the avoidance of doubt, Customer acknowledges and agrees that the Velocity Engine Service and AI Features utilize adaptive prompting based on the AI Inputs and AI Outputs; provided that, any such adaptive prompts generated from Customer’s use of the Velocity Engine Service shall only be made available to Customer for Customer’s benefit. Customer acknowledges, understands and agrees that: (a) artificial intelligence and machine learning are rapidly evolving fields of study, (b) given the probabilistic nature of machine learning, use of the AI Features may in some situations result in incorrect AI Output that does not accurately reflect real people, places, or facts or conform to Customer’s specifications, prompts or requirements, and (c) Customer is responsible for evaluating the accuracy of any AI Output as appropriate for Customer’s use case, including by using manual human review of the AI Output. Without limitation to Section 2.8, Customer agrees that it will not, and it will not permit any Authorized User other person to: (i) use the AI Features or any AI Output to develop, train or improve any AI or ML models (separate from authorized use of the Platform under this Agreement); (ii) represent any AI Output as being approved or vetted by Velocity Engine or our affiliates, personnel, service providers, agents, or representatives; or (iii) represent any AI Output as being an original work or a wholly human-generated work. AI OUTPUTS ARE GENERATED THROUGH MACHINE LEARNING PROCESSES AND ARE NOT TESTED, VERIFIED, ENDORSED OR GUARANTEED TO BE ACCURATE, COMPLETE OR CURRENT BY VELOCITY ENGINE. CUSTOMER IS SOLELY RESPONSIBLE FOR VERIFYING THAT ALL AI OUTPUTS ARE ACCURATE AND APPROPRIATE FOR ANY AND ALL OF CUSTOMER’S USE CASES OR APPLICATIONS.

2.6. Customer Materials & AI Output. Customer acknowledges and agrees that Customer, not Velocity Engine, is solely responsible for any and all Customer Materials and AI Output submitted, transmitted, contributed, provided, generated, and/or created by Customer and/or its Authorized Users in connection with the use of the Velocity Engine Service, including its legality, reliability, security, accuracy, and appropriateness. Customer hereby grants to Velocity Engine a worldwide, royalty-free, non-exclusive license to process and use (including through the use of subcontractors) Customer Materials and AI Output generated by or on behalf of Customer solely to the extent necessary to provide Customer the Velocity Engine Service and other services provided by Velocity Engine to Customer hereunder or as otherwise expressly permitted in this Agreement. Customer represents and warrants that Customer has all necessary ownership, rights, authorizations and consents to transmit, submit, and otherwise use the Customer Materials in connection with the Velocity Engine Service and to grant Velocity Engine the licenses in and to the Customer Materials as set forth in this Agreement.

2.7. Support and Implementation Services. Velocity Engine will use commercially reasonable efforts to provide Customer remote technical support by email and/or phone for Customer’s use of the Velocity Engine Service during Velocity Engine’s normal business hours (“Support”). To submit a request for Support please contact Velocity Engine here: support@velocityengine.ai. Velocity Engine may also provide Customer with certain implementation, integration and/or other professional services as specified on the applicable Order Form (the “Implementation Services”). The scope, timeline, and tasks of the parties with respect to such Implementation Services shall be as specified in an Order Form or as otherwise mutually agreed upon by the parties in writing.

2.8. Prohibited Uses. Customer acknowledges that the Velocity Engine Service embodies, contains, and constitutes valuable trade secrets of Velocity Engine and its licensors and suppliers. Accordingly, Customer agrees that it will not, and it will not permit any third party (including, without limitation, any Authorized User) to:

      1. use or allow access to the Velocity Engine Service (or any part or component thereof) in a manner that circumvents contractual usage restrictions or that exceeds any applicable Usage Parameters or restrictions;

      2. license, sub-license, sell, re-sell, rent, lease, transfer, distribute, time share or otherwise make any portion of the Velocity Engine Service (or any part or component thereof) available for access by third parties except as otherwise expressly provided in this Agreement;

      3. access or use the Velocity Engine Service (or any part or component thereof) for the purpose of developing competitive products or services or for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purpose;

      4. reverse engineer, decompile, disassemble, copy, or otherwise attempt to derive source code or other trade secrets, or any underlying ideas, algorithms and/or technology from or about the Velocity Engine Service;

      5. use the Velocity Engine Service (or any part thereof) in a way, including, without limitation, to store, transmit, or upload any material and/or content, that violates or infringes upon the rights of a third party, including those pertaining to: contract, intellectual property, privacy, or publicity;

      6. upload, distribute or disseminate any unlawful, defamatory, pornographic, harassing, abusive, fraudulent, obscene, or otherwise objectionable content through or in connection with the use of the Velocity Engine Service (or any part thereof);

      7. remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of Velocity Engine or its licensors and/or suppliers on or within any part of the Velocity Engine Service;

      8. interfere with or disrupt the integrity or performance of the Velocity Engine Service, or any related system, network or data or cause or aid in the cause of the destruction, manipulation, removal, disabling, or impairment of any portion of the Velocity Engine Service;

      9. take any action that imposes an unreasonable or disproportionately large load on the Velocity Engine Service (or any part or component thereof), or its underlying infrastructure and systems;

      10. attempt to gain unauthorized access to the Velocity Engine Service, or its related systems or networks or attempt to disable or circumvent any security mechanisms contained, or used and/or implemented by Velocity Engine, in the Velocity Engine Service;

      11. frame, mirror, or utilize framing techniques to enclose the Velocity Engine Service or any portion thereof;

      12. use any meta tags, "hidden text", robots, spiders, crawlers, or other tools, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license or download the Velocity Engine Service (or any part thereof), and/or the personal information of others without Velocity Engine’s prior written permission or authorization;

      13. use the Velocity Engine Service to store or transmit any malicious or unsolicited code or software;

      14. impersonate any person or entity, use a fictitious name, or falsely state or otherwise misrepresent Customer’s affiliation with any person or entity or falsify age or date of birth or any other eligibility requirements; or

      15. use the Velocity Engine Service (or any part thereof), or transmit Customer Materials, AI Output, or any other content, data or materials, in any manner that violates any law, rule, regulation or any other legal or regulatory requirement imposed by any regulatory or government agency, including, without limitation, export laws and regulations.

         

2.9. Third Party Integrations. The Velocity Engine Service may contain links to, or otherwise allow Customer to connect to and/or use, certain third party products, data, services, websites, applications, software, scripts and/or APIs (all of the foregoing, collectively “Third Party Integrations”). Third Party Integrations are not owned, controlled, or operated by Velocity Engine and are subject to separate terms and conditions of the applicable third party provider. If Customer decides to access and use any Third Party Integrations, such use is and shall be governed solely by the terms and conditions for such Third Party Integrations. Velocity Engine does not endorse, is not responsible for, and makes no representations as to such Third Party Integrations, their content or the manner in which they handle, secure, protect or use Customer’s data. Velocity Engine is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer's access or use of any such Third Party Integrations, or Customer's reliance on the privacy practices or other policies of such Third Party Integrations. VELOCITY ENGINE DOES NOT WARRANT, ENDORSE, GUARANTEE OR ASSUME RESPONSIBILITY FOR ANY THIRD PARTY INTEGRATIONS, AND VELOCITY ENGINE WILL NOT BE A PARTY TO, OR IN ANY WAY MONITOR, ANY TRANSACTION BETWEEN CUSTOMER AND THE THIRD PARTY PROVIDERS OF SUCH THIRD PARTY INTEGRATIONS.

3. FEES; PAYMENT TERMS

3.1. Fees. Customer shall pay the fees set forth on the applicable Order Form for Customer’s use of the Velocity Engine Service (including, where applicable, fees for the Evaluation Version). The fees payable by Customer for during the Subscription Term shall be based on the subscription tier purchased by Customer, and except as otherwise set forth in the Order Form, the subscription fees payable by Customer will remain fixed during the Subscription Term unless Customer (a) exceeds any Usage Parameters or restrictions specified in the Order Form; or (b) upgrades the subscription tier, increases the Usage Parameters, and/or subscribes to any additional features, functionality, or products which are subject to additional fees. Upon any increase in subscription fees as described above, Customer shall pay the subscription fees for such increase on pro-rated basis for the remainder of Customer’s then-current Subscription Term, and all applicable subscription fees shall renew in full at the start of any subsequent renewal term.

3.2. Support and Implementation Fees. Velocity Engine’s standard Support offering is included in the subscription fees. If Customer requests any additional or enhanced Support beyond the standard offering, such Support may be subject to additional fees, which shall be set forth in the applicable Order Form entered into by Customer and Velocity Engine for the purchase of such Support. If Customer purchases Implementation Services, Customer shall pay the applicable fees as set forth in the applicable Order Form.

3.3. Payment Terms. All fees are due and payable by Customer in advance of the Subscription Term or Evaluation Period, as applicable, unless otherwise expressly and mutually agreed to by Customer and Velocity Engine in writing. Invoiced fees shall be due and payable by Customer to Velocity Engine within thirty (30) days after Customer’s receipt of the applicable invoice for such fees. Customer agrees to pay interest at the rate of 1.5% per month (or the maximum rate allowed by applicable law, whichever is lower) on amounts past due, and to pay all reasonable costs, including attorneys’ fees and costs, associated with Velocity Engine’s collection of past due amounts. If payment is not received or cannot be charged to Customer for any reason in advance, Velocity Engine reserves the right to suspend or terminate Customer’s and its Authorized User’s access to Velocity Engine Service and/or terminate this Agreement in accordance with Section 4.2(a). All fees are non-refundable and non-cancellable, and will be paid in U.S. dollars.

3.4 Taxes. The fees are exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”), and Customer is and shall be responsible for payment of all such taxes (other than taxes based on Velocity Engine’s income), and any related penalties and interest, arising from the payment of the fees, the delivery of Velocity Engine Service, or performance of any services by Velocity Engine hereunder.

4. TERM; TERMINATION

4.1. Term. Unless earlier terminated by either party in accordance with this Agreement, this Agreement commences on the Effective Date and will continue for the Subscription Term. Unless otherwise set forth on the applicable Order Form, each Subscription Term will automatically renew for successive terms equal to the initial Subscription Term, unless either party provides the other written notice of non-renewal at least sixty (60) days prior to the end of the then-current Subscription Term.

4.2. Termination. Either party may terminate this Agreement immediately upon written notice if the other party (a) materially breaches its obligations under this Agreement and does not remedy such material breach within thirty (30) days of the date on which the breaching party receives written notice of such breach from the non-breaching party; or (b) becomes the subject of a petition in bankruptcy or any proceeding related to its insolvency, receivership or liquidation, in any jurisdiction, that is not dismissed within sixty (60) days of its commencement, or makes an assignment for the benefit of creditors.

4.3. Effect of Termination. Upon termination of this Agreement: (a) Customer’s and its Authorized Users’ right to access and use the Velocity Engine Service will terminate, and Customer will cease, and ensure its Authorized Users’ cease, all use of the Velocity Engine Service, and (b) except in the event of termination by Customer in accordance with Section 4.2(a) above, all outstanding fees immediately becoming due and payable, including, without limitation, any subscription fees due and payable for the remainder of the then-current Subscription Term. The following Sections will survive any termination or expiration of this Agreement: 1, 2.5, 2.8, 2.9, 3, 4.3, 5, 6, and 8 through 13.

5. PROPRIETARY RIGHTS

5.1. Customer Proprietary Rights. As between the parties, and subject to the licenses and rights granted to Velocity Engine under this Agreement, Customer shall retain all right, title and interest in and to the Customer Materials. In addition, subject to Customer’s compliance with this Agreement and the AI Policies, Customer shall own the AI Output based on Customer Materials, expressly excluding any AI Output based on, or otherwise incorporating any Velocity Engine Materials (“Customer Output”). Notwithstanding the foregoing, Customer acknowledges and agrees that due to the nature of machine learning, AI Output (including, Customer Output) may not be unique to Customer, and the Velocity Engine Service may generate the same or similar AI Output (including, Customer Output) for Velocity Engine or its other customers, and any output generated by or for other Velocity Engine customers, even if the same or similar as the AI Output (including, Customer Output). Subject to the terms and conditions of this Agreement, to the extent any AI Output incorporates or is based on any Velocity Engine Materials, Velocity Engine hereby grants to Customer a perpetual, worldwide, fully-paid, royalty-free, nonexclusive license to use the Velocity Engine Materials solely as, and to the extent, incorporated in the AI Output.

5.2. Usage and Training Data. Customer acknowledges and agrees that Velocity Engine has the right to (a) collect, generate and process information, metrics, analytics, and data relating to the use and performance of the Velocity Engine Service and which may be derived from Customer Property (collectively, “Usage Data”), and (b) use Usage Data for Velocity Engine’s internal purposes of training, improving, developing, and enhancing Velocity Engine’s own AI Features or other algorithms and machine learning models, and for any other lawful purposes; provided that, Velocity Engine will only disclose Usage Data to third parties, including subcontractors, for the purposes of facilitating the Velocity Engine Service, to, improve, test, and maintain the Velocity Engine Service, to perform its other obligations and exercise its rights under this Agreement, or as otherwise required by law. In addition, Customer agrees that Velocity Engine may obtain and use Customer Property and Usage Data to create aggregated, anonymized or deidentified data or information of similar form that does not permit the identification of Customer or any Authorized Users or other individual or entity (the “De-Identified Data”). Velocity Engine shall own De-Identified Data and may retain, use and disclose such data for any lawful business purpose, including to improve its products and services.

5.3. Velocity Engine Proprietary Rights. Subject to Customer’s rights in and to Customer Materials and Customer Output (collectively, “Customer Property”), Velocity Engine or its licensors retain all right, title and interest in and to (a) the Velocity Engine Service, including, all materials, graphics, user and visual interfaces, images, code (including source code or object code), products, applications, and text, embodied in, or comprising the Velocity Engine Service, as well as the design, structure, selection, coordination, expression, "look and feel” and arrangement of the Velocity Engine Service, (b) the Usage Data, De-Identified Data, Velocity Engine Materials, and any AI Output based specifically on any Velocity Engine Materials, (c) the trademarks, service marks, proprietary logos and other distinctive brand features found in the Velocity Engine Service, and any and all modifications, updates, enhancements and improvements thereto, and all intellectual property and proprietary rights, embodied in, or otherwise applicable to any of the foregoing (collectively, “Velocity Engine Property”). There are no implied rights or licenses in this Agreement and all rights and licenses not expressly granted in this Agreement are expressly reserved by Velocity Engine.

5.4. Feedback. To the extent Customer or any Authorized User provides any suggestions and feedback to Velocity Engine regarding the functioning, features, and other characteristics of any Velocity Engine Property, or any part or component thereof, or other materials or services provided or made available by Velocity Engine hereunder (“Feedback”), Customer hereby grants Velocity Engine a perpetual, irrevocable, non-exclusive, royalty-free, fully-paid-up, fully-transferable, worldwide license (with rights to sublicense through multiple tiers of sublicensees) under Customer’s and its licensors’ Intellectual Property Rights to use and exploit such Feedback in any manner and for any purpose.

6. CONFIDENTIALITY. Each party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to the other party (the “Receiving Party”) certain proprietary and non-public information regarding the Disclosing Party’s products, services, and business (collectively, “Confidential Information”). Without limiting the foregoing, Confidential Information shall include: (a) with respect to Velocity Engine: the Platform, Beta Features, Documentation, Feedback, and any non-public technical and business information regarding the Velocity Engine Service, non-public aspects of the Velocity Engine Service (or any part thereof), and all other materials and information disclosed under this Agreement that are marked “confidential” by Velocity Engine or that Customer knows or should have known, under the circumstances, are considered confidential by Velocity Engine; and (b) with respect to Customer: the Customer Materials, and all other materials and information disclosed under this Agreement that are marked “confidential” by Customer or that Velocity Engine knows or should have known, under the circumstances, are considered confidential by Customer. The Receiving Party agrees that it will not disclose to any third party or cause to be disclosed any of the Disclosing Party's Confidential Information unless authorized in writing by the Disclosing Party, and shall refrain from using the Disclosing Party's Confidential Information except to the extent necessary to perform its obligations or exercise its rights under this Agreement. Confidential Information does not include information that is: (i) publicly available through no fault of the Receiving Party; (ii) otherwise known to the Receiving Party through no wrongful conduct of the Receiving Party; (iii) disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; or (iv) independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. The Receiving Party may disclose Confidential Information of the Disclosing Party without violating this Section to the extent that such Confidential Information is required to be disclosed by law or court order; provided, however, that the Receiving Party shall first give the Disclosing Party prompt notice of such order so that the Disclosing Party may take appropriate actions to protect its rights, including seeking a protective order or other appropriate remedy. Neither party will disclose any terms of this Agreement to anyone other than its attorneys, accountants, and other professional advisors, in each case under a duty of confidentiality except (x) as required by law, or (y) in connection with a proposed merger, financing, or sale of such party’s business (provided that any third party to whom the terms of this Agreement are to be disclosed is under a duty of confidentiality). Upon expiration or termination of this Agreement, the Receiving Party shall promptly return or destroy Confidential Information in its possession or control and, except as otherwise expressly provided in this Agreement or Velocity Engine’s Privacy Notice, will not make or retain any copies of such information, except that the Receiving Party may retain one (1) archival copy of such information solely for purposes of ensuring compliance with this Agreement or any applicable laws, rules or regulations. The Receiving Party will provide written certification of its compliance with the foregoing at the Disclosing Party’s written request (if provided at the time of termination or expiration). In addition, with respect to the destruction or return of Customer Materials stored in any Velocity Engine backups, Velocity Engine’s obligations shall be the destruction of such backups pursuant to Velocity Engine’s then-current data retention and deletion processes.

7. DATA PROTECTION & SECURITY

7.1. Personal Data. To the extent any Customer Materials include, or Customer or any Authorized User otherwise transmits, processes, and/or provides, any personally identifiable information through or in connection with the use of the Velocity Engine Service (“Personal Data”), which is subject to any applicable data protection laws and/or regulations (“Applicable Data Laws”), Customer represents and warrants that: (a) such Personal Data is not sensitive data (such as financial, medical or other sensitive personal information such as government IDs, passport numbers or social security numbers) as defined pursuant to Applicable Data Laws, and that Customer shall not upload to, or otherwise provide in connection with the use of, the Velocity Engine Service, any Customer Materials that contain any sensitive Personal Data; (b) Customer is in compliance with all Applicable Data Laws, and (c) Customer has obtained all permissions and/or approvals from each applicable data source as may be necessary or required to transmit such data through the Velocity Engine Service and/or provide or make available such data to Velocity Engine hereunder. Personal Data shall only be used in accordance with this Agreement. In addition, each party agrees to work together in good faith to mutually agree upon and execute and/or enter into any documents, agreements, statements, or policies deemed necessary or appropriate by a party in its discretion to comply with any Applicable Data Laws with respect to any Personal Data exchanged pursuant to this Agreement.

7.2. Security. Velocity Engine shall implement and maintain industry-standard technical and organizational security measures reasonably designed to prevent unauthorized access to and disclosure of unencrypted Customer Materials. Without prejudice to Velocity Engine’s foregoing obligations, Customer is responsible for its secure use of the Velocity Engine Service, including, without limitation: (a) protecting account authentication credentials; and (b) implementing measures to allow Customer to backup and archive appropriately in order to restore availability and access to Customer Materials in a timely manner in the event of a physical or technical incident.

7..3. Security Incidents. Velocity Engine shall promptly investigate any suspected breach of security with respect to Velocity Engine’s systems, and shall inform Customer without unreasonable delay (but in no event, less than 72 hours) after Velocity Engine has determined, in its reasonable discretion after reasonable investigation, that there has been a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to unencrypted Customer Materials (“Security Incident”). Velocity Engine shall provide all reasonable information in Velocity Engine’s possession concerning such Security Incident insofar as it affects Customer, including the following, to the extent then known: (a) the possible cause and consequences for any data subjects whose Personal Data was involved in the Security Incident; (b) a summary of the Customer Materials affected, and the categories of Personal Data involved, if applicable; (c) a summary of the unauthorized recipients of the Customer Materials; and (d) the measures taken by Velocity Engine to mitigate any damage. Velocity Engine shall use reasonable efforts to provide Customer updates of further developments concerning a Security Incident.

8. INDEMNIFICATION

8.1. Indemnification by Velocity Engine. Velocity Engine shall defend or settle any claim, action or suit brought by a third party (each, a “Claim”) against Customer, and pay any damages, liabilities, fines, penalties, assessments, costs and expenses (including reasonable legal fees) and amounts (collectively, “Losses”) finally awarded by or agreed to (and reasonably approved by Velocity Engine) in settlement of such Claim, to the extent such Claim arises out of allegations that Customer’s use of the Platform as authorized herein infringes or misappropriates the Intellectual Property Rights of any third party. If Customer’s use, or Velocity Engine reasonably believes Customer’s use, of the Platform (or any part thereof) is or may be enjoined, or if otherwise required by settlement or injunction, Velocity Engine may elect at its option to: (a) obtain a license for the affected portion of the Platform; (b) modify or replace the affected portion of the Platform, so as to avoid infringement, without materially degrading the functionality of the Platform; or (c) terminate or discontinue the Platform (or affected portion thereof). Notwithstanding the foregoing, Velocity Engine will have no obligation under this Section or otherwise with respect to any infringement or misappropriation claim based on or arising from: (i) any modification of the Velocity Engine Service (or any part thereof) by any person other than Velocity Engine or its authorized representatives, (ii) Third Party Integrations or any third party AI Features, (iii) the use, operation, or combination of the Velocity Engine Service (or any part thereof) with software programs, data, equipment, materials or business processes not provided by Velocity Engine, if such claim would not have arisen but for such use, operation or combination, (iv) Customer Property, (v) Customer’s use of the Velocity Engine Service other than in accordance with this Agreement; and/or (vi) any Beta Features, Evaluation Version provided on a “free” basis, or any other free, trial or promotional use of the Velocity Engine Service. THIS SECTION 8.1 STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND VELOCITY ENGINE’S SOLE AND EXCLUSIVE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT AND/OR MISAPPROPRIATION.

8.2. Indemnification by Customer. Customer shall indemnify, defend, and hold Velocity Engine and its affiliates, officers, directors, employees, contractors, representatives, licensors, and agents harmless from and against any Claims brought against Velocity Engine and any Losses attributable to such Claims to the extent arising out of or related to: (a) Customer’s or its Authorized Users’ breach of any representation, warranty, or agreements referenced herein; (b) Customer Property, or Customer’s or any Authorized Users’ violation of any third-party right, including without limitation any Intellectual Property Right, publicity, confidentiality, property or privacy right; or (c) breach or violation of any terms and conditions, policies, orders, or other agreements and/or guidelines applicable to any third party AI Features or any Third Party Integrations.

8.3. Procedure. The party to be indemnified party shall (a) promptly notify the indemnifying party in writing of any claim asserted against the indemnified party (provided that, a delay in providing notice does not excuse the indemnifying party’s obligations unless the indemnifying party is prejudiced by such delay), (b) give the indemnifying party sole control of the defense thereof, and, (c) at the indemnifying party’s reasonable request and expense, cooperate and assist in such defense. Under no circumstances shall the indemnifying party enter into any settlement that involves an admission of liability, negligence or other culpability of the indemnified party or requires the indemnified party to contribute to the settlement without the indemnified party’s prior written consent. The indemnified party may participate and retain its own counsel at its own expense.

9. DISCLAIMERS. THE VELOCITY ENGINE SERVICE, AI FEATURES, SUPPORT, IMPLEMENTATION SERVICES, AND ANY OTHER MATERIALS AND/OR SERVICES PROVIDED BY VELOCITY ENGINE HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS, WITH ANY AND ALL FAULTS, AND WITHOUT ANY WARRANTY OF ANY KIND. VELOCITY ENGINE EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS. VELOCITY ENGINE DOES NOT WARRANT OR MAKE ANY GUARANTEE THAT DEFECTS WILL BE CORRECTED OR THAT THE VELOCITY ENGINE SERVICE (OR ANY PART THEREOF, INCLUDING, BUT NOT LIMITED TO, ANY AI FEATURES), SUPPORT, IMPLEMENTATION SERVICES, OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY VELOCITY ENGINE: (A) WILL MEET CUSTOMER’S OR ANY AUTHORIZED USER’S REQUIREMENTS; (B) WILL BE COMPATIBLE WITH CUSTOMER’S OR ANY AUTHORIZED USER’S NETWORK, COMPUTER, OR ANY THIRD PARTY INTEGRATIONS OR OTHER THIRD PARTY PRODUCTS OR SERVICES; (C) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (D) WILL BE ACCURATE OR RELIABLE.

10. LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL (A) EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR EXEMPLARY DAMAGES, OR FOR LOST PROFITS OR LOST DATA, OR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS, ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER FROM BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) A PARTY’S TOTAL AGGREGATE, CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED (1) THE FEES PAID OR PAYABLE TO VELOCITY ENGINE BY CUSTOMER UNDER THE APPLICABLE ORDER FORM GIVING RISE TO THE LIABILITY IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR LIABILITY, OR (2) WITH RESPECT TO ANY EVALUATION VERSION PROVIDED ON A “FREE” BASIS OR OTHER FREE, PROMOTIONAL, OR BETA VERSION PROVIDED ON A “FREE” BASIS, USD $200.00. THE FOREGOING LIMITATIONS OF LIABILITY WILL NOT APPLY TO: (I) A PARTY’S BREACH OF CONFIDENTIALITY OBLIGATIONS, (II) CUSTOMER’S BREACH OF ITS PAYMENT OBLIGATIONS, (III) CUSTOMER’S INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 8.2; OR (IV) A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUDULENT MISREPRESENTATION. THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THESE LIMITS. THE LIMITATIONS SPECIFIED IN THIS SECTION 10 SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THESE TERMS OR ANY LIMITED REMEDY HEREUNDER. VELOCITY ENGINE DISCLAIMS ALL LIABILITY OF ANY KIND OF ITS AFFILIATES, LICENSORS AND SUPPLIERS.

11. BASIS OF THE BARGAIN. THE WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY SET FORTH ABOVE IN SECTIONS 9 AND 10 ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE AGREEMENT BETWEEN VELOCITY ENGINE AND CUSTOMER. VELOCITY ENGINE WOULD NOT BE ABLE TO PROVIDE THE VELOCITY ENGINE SERVICE ON AN ECONOMIC BASIS WITHOUT SUCH LIMITATIONS. THE WARRANTY DISCLAIMER AND LIMITATION OF LIABILITY INURE TO THE BENEFIT OF VELOCITY ENGINE’S SUPPLIERS.

12. MODIFICATIONS TO THIS AGREEMENT. Velocity Engine may modify this Agreement upon thirty (30) days prior notice to Customer by email and providing a copy of the updated Agreement. If Customer does not agree to the modifications to this Agreement, then, prior to the end of the thirty (30) day notice period, Customer may either, as Customer’s sole and exclusive remedy: (a) object to such modifications by notifying Velocity Engine in writing of the modifications Customer objects to by email at jay@velocityengine.ai, in which case, unless otherwise mutually agreed upon by the parties in writing, the existing version of this Agreement shall remain in effect for the remainder of Customer’s then-current Subscription Term (after which time the modified Agreement will go into effect, unless Customer cancels its subscription to the Velocity Engine Service in accordance with Section 4.1); or (b) elect to terminate this Agreement by providing written notice to Velocity Engine by email at jay@velocityengine.ai, provided that, all fees shall become immediately due and payable for the remainder of Customer’s then-current Subscription Term. Customer may be required to click to accept or otherwise agree to the modified Agreement in order to continue using the Velocity Engine Service, and in any event (unless Customer has notified Velocity Engine of its objection to the modified Agreement or terminated this Agreement as set forth above) Customer’s or any of its Authorized User’s continued use of the Velocity Engine Service after the updated version of this Agreement goes into effect will constitute Customer’s acceptance of such updated version.

13. GENERAL

13.1. Governing Law; Venue. This Agreement will be governed by the laws of the State of Texas, U.S.A., without giving effect to any conflicts of law principles that may require the application of the law of a different jurisdiction. This Agreement (including without limitation, the Velocity Engine Service and any services provided hereunder) will not be governed or interpreted in any way by referring to any law based on the Uniform Computer Information Transactions Act (UCITA) or any other act derived from or related to UCITA. Any legal suit, action or proceeding arising out of or relating to this Agreement must be instituted in the State and Federal courts located in Travis County, Texas, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. In any action or proceeding to enforce rights under this Agreement, the substantially prevailing party will be entitled to recover costs and reasonable attorneys’ fees. Notwithstanding anything in this Agreement to the contrary, in the event of any actual or alleged violation of Velocity Engine’s intellectual property or confidentiality rights, Velocity Engine may seek injunctive or other appropriate relief in any court with competent jurisdiction in any country.

13.2. Government Rights. The Platform provided under this Agreement (and its underlying software) is a commercial computer software program developed solely at private expense. As defined in U.S. Federal Acquisition Regulations (FAR) section 2.101 and U.S. Defense Federal Acquisition Regulations (DFAR) sections 252.227-7014(a)(1) and 252.227-7014(a)(5) (or otherwise as applicable to Customer), any software underlying the Platform is deemed to be “commercial items” and “commercial computer software” and “commercial computer software documentation.” Consistent with FAR section 12.212 and DFAR section 227.7202, (or such other similar provisions as may be applicable to Customer), any use, modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. government (or any agency or contractor thereof) shall be governed solely by the terms of this Agreement.

13.3. Publicity. Customer agrees that Velocity Engine may include Customer’s name, logo and/or other marks on Velocity Engine’s website and in other internal and external marketing materials and/or presentations for the sole purpose of identifying Customer as a user of the Velocity Engine Service.

13.4. Severability; Waiver. If any provision of this Agreement is held to be invalid or unenforceable for any reason by a court of competent jurisdiction, the remaining provisions will continue in full force without being impaired or invalidated in any way. The failure of either party to insist upon strict performance of any provision of this Agreement, or to exercise any right provided for herein, will not be deemed to be a waiver of the future enforcement of such provision or right, and no waiver of any provision or right will affect the right of the waiving party to enforce any other provision or right herein.

13.5. Notices. All notices permitted or required to be sent to Velocity Engine under this Agreement shall be in writing and sent by personal delivery, email (where permitted), or by certified or registered mail, return receipt requested, and shall be deemed delivered (a) upon personal delivery, (b) with respect to certified or registered mail, the later to occur of receipt or refusal of delivery, or five (5) business days after being deposited in the mail as required above, and (c) upon confirmation of transmission if sent by email. Notices sent to each party at their respective addresses set forth in the initial Order Form, or to such other address as may be specified by either party to the other party by written notice in accordance with this Section.

13.6. Consent to Electronic Notices. Customer consents to receiving electronic communications from Velocity Engine via email, through the user-interface of the Velocity Engine Service or through Velocity Engine’s authorized support communication channels, which may include notices about transactional information and other information concerning or related to Customer’s use of the Velocity Engine Service. These electronic communications are part of Customer’s relationship with Velocity Engine and Customer receives them as part of Customer’s access and use of the Velocity Engine Service. Customer agrees that any notices, agreements, disclosures or other communications that Velocity Engine sends Customer electronically will satisfy any legal communication requirements, including that such communications be in writing, to the extent permitted by applicable law.

13.7. Assignment. Customer may not assign its rights or obligations under this Agreement without Velocity Engine’s prior written consent. Any attempted assignment or transfer of this Agreement by Customer in contravention of the foregoing shall be null and void. Velocity Engine may freely assign or transfer this Agreement in its entirety, or otherwise assign or delegate any of its rights or obligations under this Agreement (including the performance of any services hereunder) to its affiliates, employees, contractors, and subcontractors, without Customer’s consent. This Agreement shall be binding on the parties and their respective successors and permitted assigns.

13.8. Third Party Rights. This Agreement is not intended to grant rights to anyone except Customer and Velocity Engine, and in no event shall this Agreement create any third party beneficiary rights, nor be interpreted or construed to confer any rights or remedies on or to any third parties.

13.9. Entire Agreement; Construction. This Agreement, together with the initial Order Form and any other Order Forms entered into by the parties hereunder, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous representations, understandings, agreements, communications, or purchase orders between the parties, whether written or oral, relating to the subject matter hereof. Section headings are provided solely for reference purposes and in no way define, limit, interpret, or describe the scope or extent of such section or in any way affect this Agreement. When used in this Agreement, the term “including” means “including without limitation,” unless expressly stated to the contrary.