Terms & Conditions

1. Definitions

As used in this Agreement, the words below are defined as follows:

“Confidential Information” means any proprietary information provided by a party to this Agreement (“Discloser”) to the other party (“Recipient”) during or prior to entering into this Agreement that is either designated as confidential at the time of disclosure or that Recipient should know is confidential or proprietary based on the circumstances surrounding the disclosure and includes, without limitation, the Trust3 AI Products and any non-public technical and business information; however Confidential Information does not include information that (a) is or becomes generally known to the public through no fault of or breach of this Agreement by the Recipient; (b) is rightfully known by the Recipient at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the Recipient without use of the Discloser’s Confidential Information; or (d) the Recipient rightfully obtains from a third party without restriction on use or disclosure.

“Customer Data” means all Customer data processed by or stored on the SaaS Services, including logs and audit information.

“Documentation” means Trust3 AI’s standard end user manuals and user guides for the Trust3 AI Products.

“Free Trial” means Trust3 AI Products that Trust3 AI makes available to Customer free of charge for evaluation purposes.

“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

“Trust3 AI Products” means either the Software or the SaaS Services as indicated in Customer’s Product Schedule.

“Product Schedule” means a mutually executed version of Trust3 AI’s standard ordering document which references this Agreement. The initial Product Schedule is attached hereto as Exhibit A. Each Product Schedule will be incorporated into and form a part of the Agreement.

“Sensitive Information” means sensitive, personally identifiable information that is subject to specific regulations or laws that impose increased protections and/or obligations with respect to handling that type of information.

“SaaS Services” means the hosted software services described in the Product Schedule that are provided online to Customer by Trust3 AI, including any updates provided by Trust3 AI to Customer as part of the Support Services.

“Software” means the executable version of the Trust3 AI software described in the Product Schedule, including any updates provided by Trust3 AI to Customer as part of the Support Services.

“Subscription Term” means the applicable subscription term as set forth in the Product Schedule.

“Support Services” means Trust3 AI’s standard support services as described in Exhibit B (“Support Terms”).

“User” means a Customer employee who is authorized by Customer to use the applicable Trust3 AI Products for the benefit of Customer, and to whom Customer has supplied a user identification and password.

“Usage Data” means data collected by Trust3 AI relating to Customer’s use of the SaaS Services that has been aggregated and de-identified such that it is not associated with any specific customer or individual.

2. Rights to Trust3 AI Products

2.1 Software License Grant

If Customer has purchased a license to Software, then subject to Customer’s compliance with the terms and conditions of this Agreement, Trust3 AI hereby grants Customer a limited, personal, revocable, non-transferable, non-sublicensable, non-exclusive license during the applicable Subscription Term to use the Software in accordance with the Documentation solely for Customer’s internal business purposes.

2.2 SaaS Services

If Customer has purchased SaaS Services, then subject to Customer’s compliance with the terms and conditions of this Agreement, Trust3 AI grants Customer the right to use such SaaS Services in accordance with the Documentation solely for Customer’s internal business purposes. Trust3 AI will make the SaaS Services available to Customer in accordance with the terms of the Service Level Agreement Exhibit B.

2.3 Customer Obligations

(a) Customer is responsible for its and its Users’ compliance with this Agreement, the Documentation and the Product Schedule. Customer will use commercially reasonable efforts to prevent unauthorized access to or use of the Trust3 AI Products, and will promptly notify Trust3 AI of any such unauthorized access or use.

(b) The Trust3 AI Products scan specified Customer databases to identify information that is subject to applicable data protection regulations, however Customer (not Trust3 AI) is solely responsible for correctly identifying which data protection regulations may apply, and configuring the Trust3 AI Products to include such regulations.

(c) Customer will not (i) make the Trust3 AI Products available to anyone other than Customer or Users, or use the Trust3 AI Products for the benefit of anyone other than Customer, unless expressly stated otherwise in the Product Schedule; (ii) copy, sell, resell, license, sublicense, distribute, make available, rent or lease any Trust3 AI Products or include any Trust3 AI Products in a service bureau or outsourcing offering; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Trust3 AI Products (except to the extent applicable laws specifically prohibit such restriction); (iv) modify, translate, or create derivative works based on any Trust3 AI Products; (v) use the Trust3 AI Products for any purpose other than as set forth in this Agreement and the Documentation; (vi) remove or otherwise alter any proprietary notices or labels from the Trust3 AI Products or Documentation or any portion thereof; (vii) use the Trust3 AI Products to build an application, product or service that is competitive with any Trust3 AI product or service; (viii) interfere or attempt to interfere with the proper working of the Trust3 AI Products; (ix) bypass any measures Trust3 AI may use to prevent or restrict access to the Trust3 AI Products; or (x) use the Trust3 AI Products in a manner that violates applicable laws, treaties or regulations (including those related to data privacy, international communications and export laws).

(d) If Customer has purchased SaaS Services, Customer will not (i) use the SaaS Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, or to store or transmit any Sensitive Information; (ii) use the SaaS Services to store or transmit Malicious Code; (iii) attempt to gain unauthorized access to the SaaS Services or Trust3 AI’s systems or networks; (iv) permit direct or indirect access to or use of the SaaS Services in a way that circumvents usage limits; or (v) frame or mirror any part of the SaaS Services.

2.4 Ownership and Reservation of Rights

As between the parties, Trust3 AI retains all right, title, and interest in and to the Trust3 AI Products and Documentation, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Trust3 AI for the purposes of this Agreement, including any copies and derivative works of the foregoing. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. All rights are expressly reserved by Trust3 AI.

3. Customer Data and Usage Data

3.1

Customer is responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, and Customer’s use of Customer Data with the Services. Customer agrees to abide by applicable laws and regulations regarding its access and use of Customer Data with the SaaS Services. Customer acknowledges and agrees that the SaaS Services are not designed or intended to process or manage any Sensitive Information and will not submit any Sensitive Information to the SaaS Services.

3.2

As between the parties, Customer owns and retains all rights to its Customer Data. Customer grants Trust3 AI a worldwide, limited license to host, copy, use, transmit, and display Customer Data in order to fulfill its obligations to provide the SaaS Services to Customer in accordance with this Agreement.

3.3

Trust3 AI will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users). The terms of Trust3 AI’s data processing addendum available upon request (“DPA”) are hereby incorporated by reference and shall apply to the extent Customer Data includes Personal Data, as defined in the DPA. Trust3 AI will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with Trust3 AI’s obligations under this Agreement.

3.4

Trust3 AI will make Customer Data available to Customer for export or download for thirty (30) days after termination or expiration of the Subscription Term. After such 30-day period, Trust3 AI will have no obligation to maintain or provide any Customer Data, and will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.

3.5

Trust3 AI may freely use the Usage Data to develop, modify, improve, support, customize and operate its current and future products.

4. Free Trials

If Customer’s Product Schedule indicates that Customer’s use of the applicable Trust3 AI Products is part of a Free Trial (“Free Trial Products”), then Trust3 AI will make the applicable Free Trial Products available to Customer without charge for the evaluation period set forth in the Product Schedule (“Evaluation Period”). Additional terms related to Free Trial Products may be set forth in the Product Schedule. If the Free Trial Products include SaaS Services, any Customer Data entered into such SaaS Services during the Evaluation Period will be permanently lost unless Customer purchases a paid subscription to the SaaS Services prior to the end of the Free Trial.

NOTWITHSTANDING THE WARRANTIES SET FORTH IN SECTION 9.1 AND TRUST3 AI’S INDEMNITY OBLIGATION IN SECTION 10, ALL FREE TRIAL PRODUCTS ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND TRUST3 AI SHALL HAVE NO INDEMNIFICATION OBLIGATIONS OR LIABILITY OF ANY TYPE WITH RESPECT TO SUCH PRODUCTS UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE TRUST3 AI’S LIABILITY WITH RESPECT TO SUCH FREE TRIAL PRODUCTS SHALL NOT EXCEED $500.

5. Support

Trust3 AI will provide Support Services for the applicable Trust3 AI Products during the Subscription Term set forth in each Product Schedule in accordance with the Support Terms set forth at Exhibit B. Trust3 AI may modify the Support Terms at any time; provided however, that during a Subscription Term such modifications shall not materially diminish the benefit of the Support Services as provided by Trust3 AI at the start of such Subscription Term.

6. Payment and Delivery

6.1 Subscription Fees

The subscription fees payable by Customer for the applicable Trust3 AI Products for the Subscription Term will be set forth in each Product Schedule (“Subscription Fees”). Unless otherwise specified in a Product Schedule, all Subscription Fees shall be invoiced annually in advance. Trust3 AI may change its fees and payment terms at its discretion provided, however, that such changes will not take effect for Customer until the start of the next Subscription Term.

6.2 Payment Terms

All invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days of the date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. All fees paid are non-cancelable, non-refundable (except where expressly provided to the contrary in this Agreement) and are not subject to set-off. All fees specifically exclude (and Customer is responsible for) any and all applicable sales, use and other taxes, other than taxes based on Trust3 AI’s income.

6.3 Delivery and Acceptance

Following execution of this Agreement, (i) if Customer has purchased a license to Software, Trust3 AI shall make the Software available to Customer for electronic download; and (ii) if Customer has purchased SaaS Services, Trust3 AI will enable access to such SaaS Services, and in each case such Trust3 AI Products are deemed accepted by Customer at such time.

7. Term; Termination; Suspension

7.1 Term

Subject to termination as set forth below in this Section 7, the term of this Agreement will commence on the Effective Date and will continue for as long as any Trust3 AI Products are being provided to Customer under this Agreement. The Subscription Term set forth in a Product Schedule shall automatically renew for successive terms equal in duration to the initial Subscription Term unless either party notifies the other party in writing, not less than thirty (30) calendar days before the expiration of the then-current Subscription Term, that such party does not wish to renew for an additional Subscription Term.

7.2 Termination

Either party may terminate this Agreement immediately without further notice if the other party materially breaches any of its obligations under this Agreement and does not remedy such breach within thirty (30) calendar days of the date on which the breaching party receives written notice of such breach from the non-breaching party.

7.3 Effects of Termination

Upon the expiration or termination of this Agreement for any reason: (i) the right to use the applicable Trust3 AI Products shall immediately terminate; (ii) Trust3 AI’s obligations to perform the Support Services shall immediately terminate; (iii) Customer shall pay to Trust3 AI the full amount of any outstanding fees due hereunder; and (iv) each party shall promptly destroy or return all Confidential Information of the other party in its possession, and will not make or retain any copies of such information in any form, except that the receiving party may retain one (1) archival copy of such information solely for purposes of ensuring compliance with this Agreement. Notwithstanding the foregoing, the following Sections shall survive the termination of this Agreement: 2.3, 2.4, 3.2, 3.4, 3.5, 6.1, 6.2, 7.3, 8, 9, 11 and 12.

7.4 Suspension

If Customer has purchased SaaS Services, use of such SaaS Services in violation of the terms of this Agreement or in a manner that threatens the security, integrity or availability of the SaaS Services may result in Trust3 AI’s immediate suspension of the SaaS Services, however Trust3 AI will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.

8. Confidentiality

Recipient agrees not to use Discloser’s Confidential Information for any purpose except as necessary to fulfill its obligations and exercise its rights under this Agreement. Recipient shall protect the secrecy of and prevent disclosure and unauthorized use of the Discloser’s Confidential Information using the same degree of care that it takes to protect its own confidential information, which in no event shall be less than reasonable care. The Recipient may disclose the Discloser’s Confidential Information if required by judicial or administrative process, provided that Recipient first provides Discloser with prompt notice of such required disclosure to enable Discloser to seek a protective order. Upon termination or expiration of this Agreement, Recipient will, at Discloser’s option, promptly return or destroy (and provide written certification of such destruction) Discloser’s Confidential Information.

9. Warranties and Disclaimer

9.1 Warranty

If Customer has purchased a license to Software, Trust3 AI warrants to Customer that the Software, when used for its intended purpose and in accordance with Trust3 AI’s instructions, will materially conform to the Documentation for a period of ninety (90) calendar days from the date Customer is first permitted to access and use the Software (“Software Warranty Period”). If Customer has purchased SaaS Services, Trust3 AI warrants to Customer that the SaaS Services, when used for their intended purposes and in accordance with Trust3 AI’s instructions, will materially conform to the Documentation during the applicable Subscription Term.

9.2 Disclaimer

EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.1, THE TRUST3 AI PRODUCTS ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.

10. Indemnification

10.1 By Trust3 AI

Trust3 AI shall defend, indemnify, and hold harmless Customer, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers and representatives from all liability and costs (including reasonable attorneys’ fees) paid or payable to an unaffiliated third party (“Losses”), that arise from or relate to any claim that the applicable Trust3 AI Products purchased by Customer infringe or misappropriate any third party intellectual property right. THIS SECTION 10 SETS FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND TRUST3 AI’S SOLE AND EXCLUSIVE OBLIGATION WITH RESPECT TO ANY CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT.

10.2 By Customer

The Customer is prohibited by the Anti-Deficiency Act from entering into indemnifications. The Act does not prohibit Trust3 AI from asserting appropriate claims.

10.3 Process

The party seeking indemnification in accordance with this Section (the “Indemnitee”) must provide the indemnifying party (“Indemnitor”) with: (a) prompt written notice of any claim; (b) sole control over the defense and settlement of any claim (provided that the Indemnitee may participate in such defense at its own cost); and (c) reasonable information and assistance in connection with such defense and settlement (at the Indemnitor’s expense).

11. Limitation of Liability

11.1 Consequential Damages Disclaimer

UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, RELIANCE, OR CONSEQUENTIAL DAMAGES, (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF THIS AGREEMENT, REGARDLESS OF THE LEGAL THEORY UPON WHICH ANY CLAIM FOR SUCH DAMAGES IS BASED AND EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11.2 Damages Cap

WITHOUT LIMITING THE FOREGOING, AND EXCEPT AS OTHERWISE PROHIBITED BY LAW, IN NO EVENT WILL EITHER PARTY’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED THE TOTAL AMOUNT OF SUBSCRIPTION FEES PAID OR PAYABLE BY CUSTOMER TO TRUST3 AI DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY.

11.3 Exclusions

The limitations set forth in Section 11.1 do not apply to (i) a party’s willful misconduct, gross negligence or fraud; (ii) Customer’s use of the applicable Trust3 AI Products beyond the scope of any rights granted hereunder; or (iii) Customer’s failure to pay any amounts owing to Trust3 AI.

11.4 Failure of Essential Purpose

The parties agree that the limitations of liability set forth in this Section will apply and continue in full force despite any failure of consideration or of an exclusive remedy. Some jurisdictions may not allow the exclusion or limitation of incidental, special, consequential or other damages, in which case each party’s liability for such damages will be limited to the greatest extent permitted by applicable law in such jurisdiction.

12. General

12.1 Assignment

Customer shall not assign this Agreement or transfer any of its rights hereunder, or delegate the performance of any of its obligations under this Agreement, whether by merger, acquisition, sale of assets, operation of law, or otherwise, without the prior written consent of Trust3 AI. Any purported assignment in violation of the preceding sentence is null and void. Subject to the foregoing, this Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the parties thereto.

12.2 Governing Law

This Agreement will be construed and enforced in all respects in accordance with the Federal Contracts Dispute Act, 41 USC Chapter 71. To the extent permitted, a reviewing tribunal may look to the laws of the state of California in interpreting any dispute.

12.3 Feedback

To the extent Customer provides any comments, suggestions, or related materials regarding the Trust3 AI or Support Services, whether by letter, e-mail, telephone, or otherwise (“Feedback”), Customer hereby grants Trust3 AI a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty free, fully paid up license to use and exploit the Feedback for any purpose whatsoever.

12.4 Government Rights

The Trust3 AI Products provided to Customer under this Agreement is “commercial computer software” as that term is described in DFAR 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 and 12.211 of the Federal Acquisition Regulations (“FAR”) and its successors.

12.5 Export

Customer acknowledges that the laws and regulations of the United States of America and foreign jurisdictions may restrict the export and re-export of certain commodities and technical data of United States of America origin, including the Trust3 AI Products. Customer agrees that it will not export or re-export the Trust3 AI Products without the appropriate United States or foreign government licenses or permits.

12.6 Force Majeure

Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes, lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts.

12.7 Notices

All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the signature blocks below.

12.8 Amendment and Waiver

Except as otherwise specified in this Agreement, this Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement and that is signed on behalf of both parties. No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted.

12.9 Integration and Order of Precedence

This Agreement is subject to the terms of Basic Ordering Agreement #5031012-21-G-0006.

12.10 No Third Party Beneficiaries

This Agreement shall not be interpreted or construed to confer any rights or remedies on any third parties.

12.11 Independent Contractors

The parties are independent contractors and nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties.

12.12 Counterparts

This Agreement may be entered into in one or more counterparts, each of which will be deemed an original, and all of which taken together shall constitute one and the same instrument.