MSA - 04092021

Kogniz Master Customer (“MSA”) Agreement

Version: v.040921 Online

BY AGREEING TO AN ORDERING DOCUMENT INCORPORATING THESE KOGNIZ MASTER CUSTOMER AGREEMENT TERMS AND CONDITIONS (“THE TERMS”) (AN “ORDERING DOCUMENT”) KOGNIZ AND CLIENT AGREE THAT THESE TERMS SHALL GOVERN THE RELATIONSHIP BETWEEN THE PARTIES AS TO ANY KOGNIZ PRODUCTS OR SERVICES PROVIDED OR TO BE PROVIDED TO CLIENT AS SET FORTH IN SUCH ORDERING DOCUMENT. AS TO ANY PARTICULAR ORDERING DOCUMENT, THE ORDERING DOCUMENT, THE SERVICES DEFINITIONS AND SERVICE-SPECIFIC TERMS AND CONDITIONS, AND THESE TERMS TOGETHER CONSTITUTE THE AGREEMENT OF THE PARTIES AND ARE REFERRED TO COLLECTIVELY HEREIN AS THE “AGREEMENT.”

This Master Customer Agreement (referred to herein as this “Master Agreement”), is by and between KOGNIZ, INC., a Delaware corporation with offices located at 2332 Fourth Street, Suite D, Berkeley CA 94710 (“Kogniz”) and the client (“Client”) named on the attached ordering document in the form of a mutually agreed Quote, SOW, or order (each, an “Order”). This Agreement is effective as of the date set forth on the Order (the “Effective Date”). Kogniz and Client may be referred to herein collectively as the “Parties” or individually as a “Party.”

WHEREAS Kogniz provides the certain Kogniz hardware devices (the “Kogniz Product”) and associated Kogniz software-as-a-service offerings (the “Kogniz Platform” and, together with the Kogniz Product, the “Services”) to its clients; and
WHEREAS Client desires to access the particular Services specified in the Order, and Kogniz desires to provide Client access to those Services, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Definitions.

(a) “Authorized User” means Client’s employees, consultants, contractors, and agents (i) who are authorized by Client to access and use the Services under the rights granted to Client pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.

(b) “Client Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Client or an Authorized User through the Services.

(c) “Documentation” means Kogniz’s user manuals relating to the Services provided by Kogniz to Client either electronically or in hard copy form.

(d) “Kogniz IP” means the Kogniz Product, the Kogniz Platform, the Documentation, and any and all intellectual property provided to Client or any Authorized User in connection with the foregoing. For the avoidance of doubt, Kogniz IP includes any information, data, or other content derived from Kogniz’s monitoring of Client’s access to or use of the Services but does not include Client Data.

(e) “Personal Information” means any information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual or household as well as any other information that, either individually or when combined with other information, could be used to distinguish or trace an individual’s identity, such as their name, address, telephone number, social security number, date and place of birth, mother’s maiden name, account information, or biometric records, including information regarding an individual’s education, financial transactions, medical history, criminal history and employment history, including all information given protected status under any applicable privacy law.

2. Access and Use.

(a) Provision of Access. Subject to and conditioned on Client’s payment of all Fees (as defined below) and compliance with all the terms and conditions of this Agreement, Kogniz hereby grants Client a non-exclusive, non-transferable right to access and use the Services during the Subscription Term set forth on each Order, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Client’s internal business purposes. Kogniz shall provide to Client the necessary passwords and network links or connections to allow Client to access the Services. Client is responsible for maintaining the confidentiality of its passwords or other credentials and login information (collectively, “Passwords”), and Client agrees that Kogniz has no liability with respect to the use of any Passwords. Client must notify Kogniz immediately if Client has reason to believe that the security of Client’s account has been compromised or if the Services have been accessed by any unauthorized individuals.

(b) License. Subject to the terms and conditions contained in this Agreement, Kogniz hereby grants to Client a non-exclusive, non-sublicenseable, non-transferable license to use the software installed on the Kogniz Product or otherwise provided by Kogniz in connection with the Services and the Documentation during the Subscription Term solely for Client’s internal business purposes in connection with its use of the Services. Client acknowledges that additional terms and conditions may apply with respect to certain of the software and that if additional terms are applicable, such terms will be provided for your review and acceptance. If you are unwilling to agree to such additional terms, you may not be able to access or use certain features or functionality of the Services.

(c) Use Restrictions. Client shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Client shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, or adapt the Services, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; or (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property, privacy or other right of any person, or that violates any applicable law or regulation (including, but not limited to, applicable data protection and privacy laws); (vi) make any part of the Services available to, or use the Services for the benefit of, any third party; (vii) access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes; or (viii) introduce viruses or other malware to the Services or Kogniz’s systems.

(d) Collection, Processing and Use of Client Data. Client acknowledges and agrees that (i) it is solely responsible for complying with all applicable laws and regulations when using the Services; (ii) it is solely responsible to provide any required notice or obtain any required consent (including explicit consent) related to the collection, processing and use of the Client Data; (iii) use of the Services may affect individuals’ privacy and data protection rights; and (iv) it and its Authorized Users shall not include any Personal Information in the Client Data that is provided to the Kogniz Platform nor use the Service to collect or provide any information without obtaining all consents and approval required by applicable law or regulation. Client is solely responsible for developing, maintaining, and enforcing a policy regarding the collection and use of Client Data and shall make such policy publicly available via any website owned or operated by Client. Client will provide such information as Kogniz may from time to time reasonably request to demonstrate compliance with the foregoing requirements.

(e) Reservation of Rights. Kogniz reserves all rights not expressly granted to Client in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Client or any third party any intellectual property rights or other right, title, or interest in or to the Kogniz IP.

(f) Suspension. Notwithstanding anything to the contrary in this Agreement, Kogniz may temporarily suspend Client’s and any Authorized User’s access to any portion or all of the Services: (i) if Kogniz reasonably determines that (A) there is a threat or attack on any of the Kogniz IP; (B) Client’s or any Authorized User’s use of the Kogniz IP disrupts or poses a security risk to the Kogniz IP or to any other Client or vendor of Kogniz; (C) Client, or any Authorized User, is using the Kogniz IP for fraudulent or illegal activities; (D) subject to applicable law, Client has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) Kogniz’s provision of the Services to Client or any Authorized User is prohibited by applicable law; (ii) for Client’s material breach of this Agreement; or (iii) in accordance with Section 5(a) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Kogniz shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Kogniz will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client or any Authorized User may incur as a result of a Service Suspension.

(g) Service Level Agreement. Provided that Client maintains the Kogniz Products in accordance with written directions provided by Kogniz and has a then-current subscription to the Kogniz Platform, and excluding scheduled maintenance during off-peak periods (subject to 48 hours’ prior written notice provided by Kogniz to Client), the Service Level Agreement (“SLA”) for the Kogniz Platform is set forth on Exhibit A.

3. Client Responsibilities.

(a) Use of the Services. Client is responsible and liable for all uses of the Services and Documentation resulting from access provided by Client, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Client is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Client will be deemed a breach of this Agreement by Client. Client shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.

(b) Data. Client acknowledges and agrees that Client is solely responsible for all Client Data and that Kogniz shall not be liable for any lost, inaccurate or corrupted data. Client is solely responsible for downloading data from the Kogniz Products and for backing up all data submitted to the Kogniz Platform.

4. Applicability of EU Data Processing Agreement.

Client agrees that if notwithstanding Section 2(d) Client uses (or instructs, permits, or enables any of Client’s Authorized Users to use) any of the Services to collect, retrieve, send, store, host, transfer, or otherwise process or use any Personal Information or other Client Data relating to any natural persons located in the European Union and provides that information to Kogniz or the Kogniz Platform for processing, then (a) such activities shall be subject to Kogniz’s EU Data Processing Addendum, which is hereby incorporated into this Agreement by reference, and (b) Client shall comply with all applicable European Union privacy and data processing laws applicable to such activities.

5. Fees and Payment.

(a) Fees. During the Subscription Term (as defined below), Client shall pay Kogniz the fees (“Fees”) set forth in the Order without offset or deduction. Client shall make all payments hereunder in US dollars on or before the due date set forth in the Order or the applicable invoice. If Client fails to make any payment when due, without limiting Kogniz’s other rights and remedies, if such failure continues for sixty (60) days or more, Kogniz may suspend Client’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full.

(b) Taxes and Shipping. All Fees and other amounts payable by Client under this Agreement are exclusive of taxes and similar assessments. Client is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on Kogniz’s income. Kogniz Products will be delivered FOB, Origin, freight collect Client is responsible for freight costs including any import duties, taxes including taxes such as VAT and GST.

6. Confidential Information.

From time to time during the Subscription Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

7. Intellectual Property Ownership; Feedback.

(a) Kogniz IP. Client acknowledges that, as between Client and Kogniz, Kogniz owns all right, title, and interest, including all intellectual property rights, in and to the Kogniz IP.

(b) Client Data. Kogniz acknowledges that, as between Kogniz and Client, Client owns all right, title, and interest, including all intellectual property rights, in and to the Client Data. Client hereby grants to Kogniz a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Client Data and perform all acts with respect to the Client Data as may be inherent to the operation of the Service, including all machine learning features, or otherwise necessary for Kogniz to provide the Services to Client.

(c) Usage Data. Notwithstanding anything to the contrary in this Agreement, Kogniz may monitor Client’s use of the Services and collect and compile Usage Data. As between Kogniz and Client, all right, title, and interest in Usage Data, and all intellectual property rights therein, belong to and are retained solely by Kogniz.

(d) Feedback. Kogniz is free to use any feedback, suggestions, ideas, or similar information that Client, its employees, or its Contractors provide or make available to Kogniz with respect to the Kogniz IP or the Services (“Feedback”). Client hereby assigns to Kogniz on Client’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in and to, and Kogniz is free to use without any attribution or compensation to any party, the Feedback.

8. Warranty and Warranty Disclaimer.

(a) Product Warranty. Kogniz warrants that the Kogniz Product will conform in all material respects to the Kogniz Product Documentation for a period of twelve (12) months from the Effective Date of the Invoice under which such Kogniz Product is purchased by Client (the “Kogniz Product Warranty Period”). If the Kogniz Product fails to conform to this warranty during the Kogniz Product Warranty Period, Kogniz will, at its sole discretion, repair or replace any defective Kogniz Product. Repair or replacement will be made with a new or refurbished product or components, at Kogniz’s sole discretion. This warranty does not cover: (i) Kogniz Products that have been subject to (A) modifications, alterations, tampering, or improper maintenance or repair; (B) handling, storage, installation, testing or use not in accordance with the applicable Kogniz Product Documentation; or (C) abuse or misuse of the Kogniz Product.

(b) Platform Warranty. Kogniz warrants that during the Subscription Term, the Kogniz Platform will conform in all material respects to the Kogniz Platform Documentation. Kogniz does not make any representations or guarantees regarding uptime or availability of the Kogniz Platform.

(c) EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTIONS 8(a) AND 8(b), THE KOGNIZ IP AND THE SERVICES ARE PROVIDED “AS IS” AND KOGNIZ HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. KOGNIZ SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a), KOGNIZ MAKES NO WARRANTY OF ANY KIND THAT THE KOGNIZ IP, THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, SEND TIMELY ALERTS TO CLIENT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

9. Indemnification.

(a) Kogniz Indemnification.
(i) Kogniz shall indemnify, defend, and hold harmless Client and its officers, directors, employees and representatives from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (“Losses”) incurred by the Client indemnitee resulting from any claim, suit, action, or proceeding by a third party or governmental authority (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US patents, copyrights, or trade secrets.
(ii) If such a claim is made or appears possible, Kogniz may, at Kogniz’s sole discretion, (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Client to continue using the Services. If Kogniz determines that neither alternative is reasonably available, Kogniz may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Client.
(iii) This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Kogniz or authorized by Kogniz in writing; (B) modifications to the Services not made by Kogniz; (C) Client’s failure to follow instructions provided by Kogniz which would have cured the cause of action, provided that following such instructions would not have caused Client substantial, additional cost; (D) use of the Services other than as described in this Agreement or Documentation; (E) Company’s breach of this Agreement; or (F) Client Data.

(b) Client Indemnification. Client shall indemnify, hold harmless, and, at Kogniz’s option, defend Kogniz and its officers, directors, employees and representatives from and against any Losses incurred by the Kogniz indemnitee resulting from any Third-Party Claim (A) that the Client Data, or any use of the Client Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property, privacy, or other rights; (B) based on Client’s or any Authorized User’s (i) violation of applicable law or regulation, including, without limitation, applicable privacy and/or data protection laws; or (ii) use of the Services in a manner not authorized by this Agreement or the Documentation; or (C) arising from modifications to the Services made or authorized by Client.

(c) Indemnity Procedures. Each Party’s obligations in this Section 9 are subject to the indemnitee providing the indemnitor with (i) prompt written notice of the Third-Party Claim (provided that the failure to provide such notice will not relieve the indemnitor of its obligations unless such failure prejudices its ability to defend the Third-Party Claim); (ii) sole authority to control the defense and settlement of such Third-Party Claim (provided that the indemnitor may not without the indemnitee’s prior written consent enter into any settlement that requires any admission, action or inaction by the indemnitee other than the payment of money that will be fully satisfied by the indemnitor); and (iii) cooperation to the extent reasonably requested by the indemnitor in connection with the defense of the Third-Party Claim (at the indemnitor’s expense). For clarity, notwithstanding that the indemnitor has assumed control of a Third-Party Claim, the indemnitee may defend its own interests with counsel of its choosing at its own expense.

(d) Sole Remedy. THIS SECTION 9 SETS FORTH CLIENT’S SOLE REMEDIES AND KOGNIZ’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

10. Limitations of Liability.

(a) SUBJECT TO SECTION 10(c), IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY LOSS OF PROFITS OR REVENUES OR CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; NOR WILL KOGNIZ BE LIABLE TO CLIENT FOR ANY COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.

(b) SUBJECT TO SECTION 10(c), IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL FEES PAID TO KOGNIZ UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM (SUCH AMOUNT BEING INTENDED AS A CUMULATIVE CAP AND NOT PER INCIDENT).

(c) THE LIMITATIONS IN THIS SECTION 10 SHALL NOT APPLY WITH RESEPCT TO FEES OWED BY CLIENT HEREUNDER, AMOUNTS THAT ARE A PARTY’S RESPONSIBILITY PURSUANT TO SECTION 9 OR DAMAGES ARISING FROM A BREACH BY EITHER PARTY OF SECTION 6 OR BY CLIENT OF SECTIONS 2(c) OR 2(d).

11. Term and Termination.

(a) Term. The Agreement begins on the Effective Date and continues until all or any Order(s) remains in effect or as provided in 11 (b) and 11(c) below. The Order for a Kogniz Platform will specify the subscription period, and unless such Order provides otherwise, the subscription period will renew for successive terms of equal duration to the initial subscription period until either party provides the other with written notice of non-renewal at least 90 days prior to the end of the then-current subscription term (the “Subscription Term”).

(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) Kogniz may terminate this Agreement, effective on written notice to Client, if Client: (A) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Kogniz’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c), Section 2(d) or Section 6;
(ii) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) 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
(iii) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Client shall immediately discontinue use of the Services and, without limiting Client’s obligations under Section 6, Client shall delete, destroy, or return all copies of the Kogniz Confidential Information and certify in writing to the Kogniz that the Kogniz Confidential Information has been deleted or destroyed. No expiration or termination will affect Client’s obligation to pay all Fees that may have become due before such expiration or termination, or entitle Client to any refund.

(d) Survival. This Section 11(d) and Sections 1, 2(c), 2(e), 5, 6, 7, 8(c), 9, 10, 11(c), and 12 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

12. Miscellaneous.

(a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, if applicable, the EU Data Processing Agreement; (ii) second, any Order document or amendments to the Agreement mutually agreed by the Parties and incorporated herein by reference; and (iii) this Agreement. The terms of any Client generated purchase orders issued hereunder, if any, shall be null and void and this Agreement and the applicable Order shall govern the parties’ performance.

(b) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to in the case of Kogniz, the address set forth on the first page of this Agreement, or in the case of Client, the address set forth on the signature page to this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.

(c) Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

(d) Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

(e) Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

(f) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the County of San Francisco, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

(g) Assignment. Client may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Kogniz. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.

(h) Export Regulation. The Services utilize software and technology that may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Client shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Client shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the US.

(i) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6 or, in the case of Client, Sections 2(c) and 2(d), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

(j) Publicity. Except as set forth in an Invoice, neither party will make any public statement relating to this Agreement without the prior approval of the other, except that Kogniz may include Client’s name and logo in its marketing, promotional materials and customer lists.

(k) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

EXHIBIT A

SERVICE LEVEL AGREEMENT (“SLA”)

For Hosted Services of the Kogniz Platform:

1. Service Level Goal

Kogniz’s goal is to achieve 100% availability of the Hosted Services for its customers, 24 hours per day, seven days a week. If uptime for the Hosted Services is less than 99.99% for a given month of the Term, then Kogniz shall issue Client a service credit (“Service Credit”) in accordance with the schedule below, with the credit being calculated based on the fees for month of the affected Services.

Kogniz does not include in its calculation of downtime any time the Hosted Services are not provided due to:

Scheduled Maintenance as set forth below
If Kogniz would not have liability for failure to perform pursuant to Force Majeure of the Agreement.
Actions or inactions on Client’s part which are expressly prohibited by the Agreement.
Events arising from Client’s systems or any Client websites.
ISP or Internet outages outside of Kogniz’s control; or Outages reasonably deemed necessary by Kogniz provided that a reasonable disaster recovery or business continuity plan would not have mitigated such outage had it been implemented and followed.

2. Service Credit Procedure

To receive a Service Credit, Client shall submit a request to Support at support@kogniz.com and Sara Gioia at sara@kogniz.com, with the description “Request for Service Credit” in the subject line of the email. Each request must include the following information: (a) the applicable Client’s (“Client”) name; (b) Client’s contact name, email and telephone information; (c) date and beginning and end time(s) of outage(s); and (d) a brief description of the characteristics of the failed uptime goal. Each Service Credit will be applied in the next billing cycle after Kogniz’s receipt of Client’s credit request.

Uptime Commitment Failure Service Credit

99.90% – < 99.99% 3 days of fees associated with the Hosted Services
99.00% – < 99.90% 7 days of fees associated with the Hosted Services
90.00% – < 99.00% 30 days of fees associated with the Hosted Services
< 90.00% 45 days of fees associated with the Hosted Services

3. Service Levels

Kogniz’s support team can be reached at support@kogniz.com and shall be available for all customer support requests between 8am ET and 8pm ET. Incidents will be routed and addressed according to the following service levels (each, a “Service Level”):

Service Level Description Incident Resolution

1 – Critical Priority Customer’s production use of our products is stopped or so severely impacted that the customer cannot reasonably continue work.

Severity Level 1 problems could have the following characteristics:

System hangs or crash situations
Data loss or data corruption
Critical functionality not available For Severity Level 1 problems, we will begin work on the problem within one hour of notification and handle it as the highest priority until the customer is given a fix or workaround. Customer resources must be made reasonably available in Severity Level 1 situations and reasonably cooperate to help resolve the issue.

See table below for Resolution Times

2 – High Priority Important product features are unavailable with no acceptable workaround. Customer’s implementation or production use of Kogniz’s are functioning with limited capabilities or are unstable with periodic interruptions. The software may be operating but is severely restricted

Severity Level 2 problems could have the following characteristics:

Product error or failure forcing a restart or recovery
Severely degraded performance
Functionality unavailable but the system is able to operate in a restricted fashion. For Severity Level 2 problems, we will begin work on the problem within two hours of notification. Kogniz will handle it as the high priority until the customer is given a fix or workaround.

See table below for Resolution Times

3 – Standard Product features are unavailable, but a workaround exists, and the majority of software functions are still usable. Minor function/feature failure that the customer can easily circumvent or avoid. Customer’s work has minor loss of operational functionality

Severity Level 3 problems could have the following characteristics:

Error message with workaround
Minimal performance degradation
Incorrect product behavior with minor impact
Questions on product functionality or configuration during implementation For Severity Level 3 problems, we will acknowledge notification of the issue within eight hours of notification. Kogniz will handle it as the priority until the customer is given a fix or workaround.

See table below for Resolution Times

4 – Change Requests Minor problem or question that does not affect the software function such as How To’s, documentation, general questions, or enhancement requests. There is no impact to product usage or customer’s operations.

Severity Level 4 problems could have the following characteristics:

General requests for advice on product usage
Clarification on product documentation or release notes
Product enhancement request For Severity Level 4 problems, we will acknowledge notification of the issue within twenty-four hours of notification.

See table below for Resolution Times

4. Service Level Failures

Kogniz acknowledges that its failure to meet one or more Service Levels shall have an adverse effect on the business and operations of Client. Accordingly, without limiting Client’s rights to receive Service Credits, in the event (a) three or more Service Level failures occur during any consecutive 12 month period; (b) two or more Service Level failures occur in the same or any consecutive days in any 30 day period; or (c) if any single Service Level failure persists for more than four hours, Client may (reserving cumulatively all other remedies and rights under the Agreement and at law and in equity) immediately terminate the Agreement, in whole or in part, upon notice to Kogniz, without obligation or liability of any kind.

5. Scheduled Maintenance.

Kogniz may perform any standard maintenance, upgrades, replacement of hardware or software or any other like activity that may result in unavailability (collectively, “Scheduled Maintenance”) between 11 p.m. Eastern Time and 4:00am Eastern Time; provided that Kogniz shall use commercially reasonable efforts to minimize the number of Scheduled Maintenance operations. Kogniz shall notify Client at least 5-days in advance of any anticipated Scheduled Maintenance, and provide the proposed date, time and expected duration. Notwithstanding the foregoing, Client may, within two business days after receipt of such notice, require Kogniz to reschedule the time or date of the proposed Scheduled Maintenance if such Scheduled Maintenance would reasonably conflict with a major broadcast event, or other Client function, for which Client anticipates its end users will require access to Hosted Services. Client shall make itself reasonably available to discuss the matter with Kogniz, at Kogniz’s request.

6. Emergency Maintenance.

Kogniz may also perform any maintenance reasonably necessary to fix critical Hosted Service functionality, security or other vulnerabilities or material defects that may substantially impair the usability or performance of the Hosted Services, to the extent such maintenance cannot reasonable be performed during the Scheduled Maintenance window (“Emergency Maintenance”). Kogniz shall notify Client at least 24 hours’ notice (or at least as much notice as is reasonably possible, where 24 hours is not commercially reasonable) of any Emergency Maintenance, including its date, time and expected duration. Such notice will be provided by telephone to Client’s project manager. The Parties acknowledge that this Section will in no way limit or alter Kogniz’s respond and resolve obligations set forth below.

7. The service levels (“Service Levels”) for the Services provided to Client are as follows:

Four severity classes are associated with times to repair. It is assumed that bug fixes would migrate down the chain of severity as they are being addressed. For example, a workaround may take a bug from Level 1 to Level 3, and a permanent solution would be expected within a day. Without limiting Client’s available remedies, if Kogniz’s performance of the Services fails to meet the requirements set forth in this Service Level Agreement, Kogniz promptly shall: (a) identify all causes of the failure; (b) implement procedures necessary to correct the failure; and (c) provide Client with a written report detailing the causes identified and procedures implemented.
Resolution Times:

Priority Initial Response Time Target Resolution Time

Severity 1 Issue (Critical): Within 1 hour of notification No later than 1 Business Day
Severity 2 Issue (High Priority): Within 2 hours of notification No later than 2 Business Days
Severity 3 Issue (Standard): Within 8 hours of notification No later than 4 Business Days
Severity 4 Issue (Change requests): Within 24 hours of notification Kogniz will provide an estimated resolution time based on the request

MSA Version: v.040921