ANDROMEDA CLUSTER TERMS AND CONDITIONS

LAST MODIFIED: February 14, 2024THESE TERMS AND CONDITIONS (AGREEMENT) ARE A LEGAL AGREEMENT BETWEEN YOU OR THE COMPANY YOU REPRESENT (COLLECTIVELY CLIENT, YOU, OR YOUR), AND ANDROMEDA CLUSTER, INC., A DELAWARE CORPORATION (ANDROMEDA, US,WE, OR OUR) GOVERNING YOUR USE OF THE ANDROMEDA WEBSITE (SITE), APPLICATIONS OR OTHER ONLINE SERVICES (COLLECTIVELY, THE SERVICES). THE SERVICES ARE ONLY AVAILABLE IF YOU HAVE REGISTERED FOR AN ACCOUT. IF YOU CREATE AN ACCOUNT OR REGISTER A PRODUCT USING THE SERVICES, YOU UNDERSTAND THAT BY CLICKING THE REGISTER OR I ACCEPT OR SIMILAR BUTTON, YOU ARE AGREEING TO BE BOUND BY THESE TERMS OF USE AND OUR PRIVACY POLICY. YOU REPRESENT THAT YOU ARE AT LEAST 18 YEARS OF AGE AND OF SUFFICIENT LEGAL AGE IN YOUR JURISDICTION TO LAWFULLY ENTER INTO CONTRACTS. IF YOUR ACCEPTANCE OF THESE TERMS OF USE IS ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THESE TERMS OF USE. IN THAT EVENT, YOU AND YOUR WILL REFER AND APPLY TO THAT ENTITY AS WELL AS TO YOURSELF. IF YOU DO NOT AGREE TO THESE TERMS OF USE, YOU MAY NOT USE THE SITE OR THE OTHER SERVICES.WE MAY CHANGE, ADD OR REMOVE PORTIONS OF THESE TERMS OF SERVICE AT ANY TIME BY NOTIFYING YOU OF THE CHANGE IN WRITING (INCLUDING BY EMAIL OR BY UPDATING THE DATE ABOVE AFTER LAST UPDATED ON). SUCH CHANGES WILL BECOME EFFECTIVE IMMEDIATELY UPON POSTING. IT IS YOUR RESPONSIBILITY TO REVIEW THESE TERMS OF SERVICE PRIOR TO EACH USE OF THE SITE. YOUR USE OF THE SERVICES FOLLOWING ANY SUCH CHANGE CONSTITUTES YOUR UNCONDITIONAL AGREEMENT TO FOLLOW AND BE BOUND BY THESE TERMS OF USE AS CHANGED. THESE TERMS OF USE APPLY TO THE USE OF THE ANDROMEDA SERVICES AND DO NOT EXTEND TO ANY LINKED THIRD PARTY SITES, APPLICATIONS OR OTHER ONLINE SERVICES. ANY RIGHTS NOT EXPRESSLY GRANTED HEREIN ARE RESERVED BY ANDROMEDA.

Definitions. Capitalized terms used in this Agreement have the meanings set forth in this Section or as defined elsewhere in this Agreement.

Clusters means the number and configuration of nodes, graphics processing units (GPUs), computer processing units (CPUs), and geographic locations which are selected and scheduled by the Client for the processing of Source Data.Disks means the number and configuration of computer storage disk space selected by the Client for the storage of Source Data and any output of the Services.Intellectual Property Rights means all tangible and intangible rights associated with works of authorship throughout the world, including but not limited to, copyrights, moral rights, and mask works; trademarks and trade name rights and similar rights; trade secret rights; patents, designs, algorithms, and other intellectual or industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise; and all registrations, initial applications, renewals, extensions, continuations, divisions, or reissues now or hereafter in force (including any rights in the foregoing) anywhere in the world, that exist as of the Effective Date or hereafter come into existence, regardless of whether or not such rights have been registered with the appropriate authorities in such jurisdictions in accordance with the relevant legislation.Order means the selection by Client of Disks, Clusters and schedules and any other Andromeda products or services through the Andromeda web interface.Services are the technical data processing and storage services provided by Andromeda on Source Data provided by Client.Source Data are the information specified or provided by Client for processing through the Services that may include proprietary data or data sets, public data or data sets, or some combinations of both, and which may be owned or licensed by third parties. Source Data may consist of text, images, videos, source or executable code, or any other digital media.

Services.

2.1.

Services and License. During the term of this Agreement, and subject to the terms and conditions of the Agreement, Andromeda will use commercially reasonable efforts to make the Services available and provide the Services to Client on a non-exclusive basis. To utilize the Services, Client will lease storage space on Disks and schedule Clusters for processing Source Data. Client's lease of Disks will continue until such time as Client deletes all of its Source Data on the Disks it has leased. Client will pay the fees for the use of the Clusters as specified at the time Client schedules the Clusters. During the term of this Agreement Client grants Andromeda a license to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute Source Data solely and exclusively for the purpose of providing the Services to Client. Andromeda reserves the right to make like-kind substitutions of all or a portion of the Services including the Clusters, as well as location(s) thereof, as needed in order to ensure Client's use of Services described herein, without any negative material impact on the functionality or performance. Any other substitutions or changes shall require Client's prior written agreement, such agreement not to be unreasonably conditioned, delayed or withheld. Client is solely and exclusively responsible for backing up any Source Data or other Client materials or information used in the Services or any Client data output by the Services.

2.2.

Non-Exclusive Rights. Client acknowledges and agrees that any rights granted in this Agreement are non-exclusive, and that, without limiting the generality of the foregoing, nothing in this Agreement shall be deemed or construed to prohibit either party from participating in similar business arrangements as those described herein.

2.3.

Source Data Quality and Disclaimer. Client will have sole responsibility and liability for the accuracy, quality, integrity, legality, reliability, appropriateness, and copyright of any and all Source Data provided to Andromeda and any and all other data or input it presents to Andromeda. Andromeda will have no duty to review, evaluate, filter, censor, and/or approve such Source Data, nor any websites that link to, or are linked from such Source Data. Andromeda will have no responsibility or liability for any errors or defects in the Services that arise from errors or defects in Source Data.

2.4.

Source Data Warranties. Client affirms, represents and warrants that: (i) Source Data and use thereof will not violate this this Agreement, any applicable Andromeda acceptable use policies or any applicable law, regulation, rule or third party rights; (ii) Client is solely responsible for the development, moderation, operation, maintenance, support and use of Client Source Data, including when Source Data is provided by Client's end users; (iii) Client's Source Data and its use thereof does not and will not: (a) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other Intellectual Property Right or proprietary right; (b) slander, defame, libel, or invade a right of privacy, publicity or other property rights of any other person; or (c) cause Andromeda to violate any law, regulation, rule, or rights of third parties; and except for the specific Andromeda Services provided under this Agreement Client is solely responsible for the technical operation of Source Data, including on behalf of Client's end users.

2.5.

Restrictions. Client is solely responsible for the activity that occurs on its account, regardless of whether the activities are undertaken by Client, its employees, any third party (including Client's contractors or agents), Client's end users, licensees, or customers. Client shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Andromeda Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction; (ii) modify, translate, or otherwise create derivative works of any part of the Andromeda Services; (iii) copy, rent, lease, distribute, or otherwise transfer or resell any of the rights that Client receives hereunder; or (iv) use the Services to engage in activities involving nuclear materials or weapons, missile or rocket technologies, or proliferation of chemical or biological weapons. Client shall abide by all applicable local, state, national and international laws and regulations.

2.6.

Client Support. Andromeda will provide Client with its standard customer support. Support includes a dedicated slack channel for communication and troubleshooting issues. The channel will be set up upon the start of the reservation. If there are any other issues the Andromeda Support Team can be reached at support@andromeda.ai.

Fees, Payments and Taxes.

3.1.

Fees and Payment. Andromeda reserves the right to change its fees or payment terms at any time (Fees). Notwithstanding the foregoing, the fees set forth in an Order will not change for the period specified in the Order. Andromeda uses third-party payment processors (Payment Processors) to credit or bill Client through the payment account(s) linked to the Client's account (Billing Information). The processing of credits or payments may be subject to the terms, conditions and policies of the Payment Processors in addition to this Agreement . Andromeda is not responsible for the acts or omissions of the Payment Processors. Client agrees to pay all sums for Services Client uses at applicable prices in accordance with this Agreement and Client authorizes Andromeda and Payment Processors to deduct or charge all such sums (including all applicable taxes) based on the payment method(s) specified in or linked to the Client's account (Payment Methods). The Client must provide current, valid, complete and accurate Billing Information for all Payment Methods linked to Client's account and must promptly update all such information in the event of changes (such as a change in billing address, credit card number, credit card expiration date or bank transfer and autopay information). Client must promptly notify Andromeda or the Payment Processors if a payment method is canceled (e.g., for loss or theft) or otherwise inoperable.

3.2.

Invoicing. Services not subject to prepayment will be billed monthly, at the then current rates, by Andromeda in arrears based on the Client's prior month's usage, and unless agreed to otherwise in writing with Andromeda, all fees for Services are due and payable within fifteen (15) days of the date of invoice. All invoices must be paid by bank transfer (ACH or Wire) or credit card using the Payment Methods linked to a Client's account. Andromeda reserves the right to deactivate, terminate, prevent access to, disable Services for, and/or suspend or delete a Client's account or access to any Andromeda Services at any time for nonpayment or late payment (if applicable) of undisputed amounts, or failure to maintain at all times current, valid, complete and accurate Payment Methods.

3.3.

Late Payments. All undisputed Fees for Andromeda Services that are unpaid or past due for any reason are subject to a finance charge of 1.5% of the unpaid balance per month (or the highest rate permitted by law, whichever is lower) from the date such payment was due until the date paid. Client will be responsible for all reasonable expenses (including attorneys' fees) incurred by Andromeda in collecting past due amounts. Any amounts due under this Agreement shall not be withheld or offset by Client against amounts due Client for any reason.

3.4.

Disputed Invoices or Payment Records. In the event Client reasonably and in good faith disputes any fee(s) set forth on any invoice or record of payment issued by Andromeda, Client will notify Andromeda in writing, setting forth the reasons for non-acceptance of a deliverable or other issue and the amount of such dispute (Dispute Notice), no later than ten (10) days following the receipt of the invoice or record of payment and pay any undisputed amounts. Upon receipt of a Dispute Notice, both parties will promptly make available appropriate personnel to work in good faith to resolve the dispute within fifteen (15) days. Upon resolution of the dispute by the parties, if there are any additional agreed amounts due from Client in relation to the applicable invoice, Client will pay such amounts within ten (10) days following such resolution. If the dispute remains unresolved sixty (60) days after the date of the invoice at issue, either party may declare the other party in breach of this Agreement and pursue any or all legal remedies available to it.

3.5.

Taxes. Client is responsible for any duties, customs fees, taxes, and related penalties, fines, audits, interest and back-payments relating to Client's purchase of any Andromeda Services, including but not limited to national, state or local sales taxes, use taxes, value-added taxes (VAT) and goods and services taxes (GST) (collectively, Taxes). Unless otherwise stated, Andromeda's pricing policies do not include and are not discounted or enhanced for any such Taxes. If Andromeda becomes obligated to collect or pay Taxes in connection with Client's use of the Services, those Taxes will be invoiced as part of a billing process or collected at the time of purchase. In certain states, countries and territories, the purchase of Andromeda Services may be subject to certain Taxes, and if so, Andromeda may collect such Taxes and remit them to the appropriate taxing authority. Client must also provide any tax identification information that is necessary for compliance with these tax obligations. Client is solely responsible for any misrepresentations made or non-compliance caused with respect to Taxes.

Ownership.

4.1.

Definitions. For purposes of this Section Background Technology means (i) all discoveries, inventions, technical information, procedures, manufacturing or other processes, software, firmware, hardware, technology, know-how and other engineering, scientific, technical, development, design, business and practical information and technology, whether or not patented or patentable existing as of the Effective Date, and any enhancements, modifications, changes, extensions or derivative works of the foregoing; and/or (ii) all materials and information including specifications that are entirely independent of any Intellectual Property Right of any kind of the other party.

4.2.

Ownership and License. As between the Parties: (i) each party owns its Background Technology and nothing in this Agreement transfers the ownership of Background Technology; (ii) Client owns the Source Data material it provides to Andromeda; (iii) the Services and all Intellectual Property Rights and all proprietary rights contained in the Services and the use and provision thereof is the sole and exclusive property of Andromeda and nothing in this Agreement limits or transfers such rights.

4.3.

Feedback. Client may choose but is not obligated to provide Andromeda with oral or written feedback related to its use of the Services. Any materials, information, ideas, concepts, feedback and/or know-how provided by Client to Andromeda concerning Andromeda, the Andromeda website, products or services, and the Services (Feedback) will be the property of Andromeda. Client agrees and Client hereby assigns all rights, title and interest to the Feedback, and agrees to assist Andromeda, at Andromeda's expense, in perfecting and enforcing such rights for any purpose.

4.4.

Statistics and Artificial Intelligence. Statistics means any anonymous data, expressly excluding personally identifiable data subject to the Privacy Policy, that Andromeda derives through the Site. Client acknowledges and agrees that Andromeda may use Statistics for the modification, enhancement, and improvement of the Site or Services, and for the marketing or promotion of Andromeda or any future product or service offering, provided any such use of Statistics by Andromeda cannot reasonably be identified as Client's aggregate information alone. Client further acknowledges and agrees that the Site or Services may now or in the future utilize or rely on artificial intelligence components and other forms of machine learning or data analytics used by Andromeda and its suppliers. Client acknowledges and agrees that Andromeda may use the Statistics and any information gained through its use of artificial intelligence, machine learning, or general analytical tools (which is not personally identifiable information subject to the Andromeda Privacy Policy) for any purpose, and that, as between Client and Andromeda, Andromeda will exclusively own all such information and all Intellectual Property Rights therein.

Confidentiality.

5.1.

Generally. Confidential Information will mean confidential or other non-public proprietary information that is disclosed by either party to the other under this Agreement, including without limitation, any commercial, financial, marketing, business, technical or other data, know-how, or other information which is disclosed either: (a) in tangible form and is marked confidential or proprietary, or (b) orally or visually, and is designated as confidential or proprietary at the time of disclosure or is of a nature or disclosed in a context that a reasonable person would understand it as confidential or proprietary. For the avoidance of doubt, all software, software code and designs, hardware, product specifications and documentation, trade secrets, financial data, business, marketing and product plans, or technology, Source Data and other Client information is Confidential Information for purposes of this Agreement.

5.2.

Obligations of Confidentiality. Each party agrees that it will hold in strict confidence and not disclose the Confidential Information of the other party to any third party and to use the Confidential Information of the other party for no purpose other than the purposes expressly permitted by this Agreement. Each party will only permit access to the other party's Confidential Information to those of its or its Affiliates' employees, contractors and advisors having a need to know and who have signed or are bound by confidentiality obligations or agreements containing terms at least as restrictive as those contained in this Agreement. Each party will maintain the confidentiality and prevent accidental or other loss or disclosure of any Confidential Information of the other party with at least the same degree of care as it uses to protect its own Confidential Information, but in no event with less than reasonable care. Neither party is permitted to modify, reverse engineer, decompile, or disassemble any software disclosed by the disclosing party, and no license to any Confidential Information is created beyond any express license grants in this Agreement.

5.3.

Exclusions from Obligations. A party's obligations of confidentiality under this Agreement will not apply to information if such party can document the information (i) is in the public domain without the breach of any agreement or fiduciary duty or the violation of any law, (ii) was known to the party prior to the time of disclosure without the breach of any agreement or fiduciary duty or the violation of any law, (iii) is proven by contemporaneous written records to be independently developed without use or reference to the Confidential Information by the party prior to receiving such Confidential Information.

5.4.

Legally Required Disclosure. In the event either party is required to disclose, pursuant to a judicial order, a requirement of a governmental agency or by operation of law, any Confidential Information provided to it by the other party then such party will provide the other party written notice of any such requirement immediately after learning of any such requirement, and take commercially reasonable measures to avoid or limit disclosure under such requirements and to obtain confidential treatment or a protective order and allow the other party to participate in the proceeding. Any disclosure will be the minimum disclosure as recommended by a party's legal counsel and no disclosure will remove the obligations of confidentiality to any remaining Confidential Information nor permit any other disclosure of the Confidential Information in other circumstances.

5.5.

Period of Confidentiality. The receiving party's obligations of confidentiality under this Agreement will survive the expiration or other termination of this Agreement as follows: (i) in the case of a trade secret for so long as such information constitutes a trade secret under applicable law, and (ii) in all other cases for a period of three (3) years.

5.6.

Equitable Relief. Each party recognizes and acknowledges that any use or disclosure of the Confidential Information of the other party in a manner inconsistent with the provisions of this Agreement may cause the other party irreparable damage for which remedies at law may be inadequate. Accordingly, the non-breaching party will have the right to seek an immediate injunction or other equitable relief in respect of any breach of these confidentiality obligations to obtain such relief. Notwithstanding the foregoing, this paragraph will not in any way limit the remedies in law or equity otherwise available to the non-breaching party.

5.7.

Return of Confidential Information. Upon written request by either party hereto the other party will promptly return or destroy all documents and other tangible materials representing the requesting party's Confidential Information and all copies thereof, except for any archived materials that are required to be retained by law or that are not easily retrievable from secured archival systems, or records created in the ordinary course of business that are kept by a party and used only for contract compliance and enforcement purposes subject to continuing confidentiality. In the case of destruction, the party will provide written certification of such destruction within ten (10) days after the termination of the Agreement. A party will not be required to delete or destroy electronic copies of Confidential Information generated automatically by archival or data backup systems, so long as such copies are not accessed or used in any manner that violates the terms or conditions of this Agreement. However, any Confidential Information retained for archival purposes must be stored so that it is not readily accessible by a party's employees and will continue to be Confidential Information and subject to the terms and conditions of this Agreement for as long as such Confidential Information is retained by the receiving party.

5.8.

Confidential Information on Disks. Client is solely responsible for removing and deleting any Client information on Disks including, but not limited to Source Data. Andromeda will not backup, copy or otherwise retain Client information, data or material on Disks leased by Client.

Account and Data Security.

6.1.

Security. Client must utilize proper security protocols, such as setting strong passwords and access control mechanisms, safeguarding access to all logins and passwords, and verifying the trustworthiness of persons who are entrusted with account access information. Client is solely responsible for any unauthorized access to the Client's account, including any Disks or Clusters, and must notify Andromeda immediately of any such unauthorized access upon becoming aware of it. Client will notify Andromeda if and when Client learns of any security incidents or breaches affecting the Andromeda Services, including unauthorized access to Client's account or account credentials, and shall aid in any investigation or legal action that is taken by authorities and/or Andromeda to investigate and cure the security incident or breach to the extent caused by the Client account or use of the Services.

6.2.

Disk Deletion by Client. Andromeda will enable Client to delete Client Source Data during the term in a manner consistent with the functionality of the Services. If Client uses the Services to delete any Source Data and that Source Data cannot be recovered by Client, this use will constitute an instruction to Andromeda to delete the relevant Source Data from Andromeda's systems in accordance with applicable law. Andromeda will comply with this instruction as soon as reasonably practicable and within a maximum period of one hundred eighty (180) days.

6.3.

Disk Deletion on Termination. On the expiration of an Order term or the closing of a Client account, Client may instruct Andromeda to delete all Source Data (including existing copies) from Andromeda's systems in accordance with applicable law. Andromeda will, after a recovery period of up to thirty (30) days following such termination or expiration, comply with this instruction as soon as reasonably practicable and within a maximum period of one hundred eighty (180) days. Client is responsible for exporting any Client Data it wishes to retain prior to the expiration of an Order term or the closing of Client's account.

Term and Termination.

7.1.

Term. This Agreement will commence on the earlier of the date a Client establishes an account for Services or places an Order for Disks or Clusters and will continue in effect for such time as Client's account is open. Any Order will commence on the effective date stated therein and, unless earlier terminated, will continue for the period stated therein. This Agreement will survive for so long as any Order remains in effect, provided that no new Orders may be executed after the termination of this Agreement. Either party may terminate this Agreement at any time for convenience when there are no Orders then in effect.

7.2.

Termination for Cause. Either party may terminate this Agreement, and/or any Order in effect at the time, for cause upon a material breach by the other party, which default either remains uncured for thirty (30) days after written notice thereof is given to the defaulting party or is incapable of being cured, in which case the Agreement shall terminate upon the date of the default notice or such later date specified in such notice, if any. Unless otherwise specifically set forth in the applicable Order, upon the termination or expiration of this Agreement, then each and every Order shall also simultaneously terminate and/or expire.

7.3.

Termination for Other Reasons. Either party may immediately terminate this Agreement and/or any Order in effect at the time, in the event of any of the following: (i) the other party ceases to carry on its business; (ii) the institution of bankruptcy, receivership, insolvency, reorganization or other similar proceedings by or against the other party, if such proceedings have not been dismissed or discharged within thirty (30) calendar days after they are instituted; (iii) the appointment of a receiver for all or substantially all of the other party's assets; or (iv) any change in applicable laws that make continued performance under this Agreement unlawful or commercially unreasonable.

7.4.

Survival. The rights and obligations of the parties contained in this Agreement that would reasonably be considered to survive any termination or expiration of this Agreement shall be deemed to have survived and shall have the effect of the intent of the parties under this Agreement.

Representations and Limited Warranties.

8.1.

Mutual Representations. Each party represents and warrants that: (i) it has the full corporate right, power, and authority to enter into this Agreement and perform the obligations and duties hereunder; (ii) when executed and delivered, this Agreement will constitute the legal, valid, and binding obligation of each party, enforceable against each in accordance with its terms.

8.2.

Client Representations. Client represents, warrants, and covenants that (i) its use of the Services and Source Data shall comply with all laws, rules, and regulations, including without limitation any and all laws, rules, and regulations related to the public disclosure of business and financial data or information, including without limitation any and all rules and/or regulations promulgated by any governmental or regulatory agency; (ii) all Source Data provided to Andromeda and any use allowed hereunder will not infringe, misappropriate, or otherwise violate any rights of any third party; (iii) Client is the sole and exclusive owner, valid licensee, and/or authorized user of all right, title and interest in and to the Source Data.

8.3.

WARRANTY DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY WARRANTED IN THIS AGREEMENT, THE SERVICES AND MATERIALS ARE PROVIDED BY ANDROMEDA ON AN AS IS AND AS AVAILABLEBASIS. TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, ANDROMEDA DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, TITLE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. ANDROMEDA MAKES NO REPRESENTATIONS OR WARRANTY THAT ANY OF THE SERVICES WILL MEET CLIENT'S REQUIREMENTS, OR THAT CLIENT'S USE OF ANY OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES ANDROMEDA MAKE ANY REPRESENTATION OR WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES. ANDROMEDA MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE SERVICES OR THE INFORMATION, CONTENT, MATERIALS, OR PRODUCTS OR SERVICES INCLUDED ON OR IN THE SERVICES.

Limitations of Liability.

9.1.

Exclusion of Consequential Damages. TO THE EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR DAMAGES ARISING PURSUANT TO A BREACH OF ANY APPLICABLE LICENSE GRANT OR THE INFRINGEMENT OR MISUSE OF ANDROMEDA'S INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, USE, DATA OR OTHER ECONOMIC ADVANTAGE AND ANY NON-ECONOMIC LOSSES, EVEN IF A PARTY HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.

9.2.

Limitation of Damages. EXCEPT FOR DAMAGES ARISING PURSUANT TO A BREACH OF ANY APPLICABLE LICENSE GRANT, OR ANY INFRINGEMENT OR MISUSE OF ANDROMEDA'S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY'S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS, LOSSES OR EXPENSES (INCLUDING ATTORNEYS' FEES) ARISING OUT OF THIS AGREEMENT, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, AGENCY, WARRANTY, TRESPASS, OR ANY OTHER THEORY OF LIABILITY, WILL BE LIMITED TO THE FEES PAID AND PAYABLE BY YOU TO ANDROMEDA DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE ACT OR OMISSION FIRST GIVING RISE TO THE LIABILITY.

9.3.

Allocation of Risk and Material Term. THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND ARE AN INTRINSIC PART OF THE BARGAIN BETWEEN THE PARTIES. THE FEES PROVIDED FOR IN THIS AGREEMENT REFLECT THIS ALLOCATION OF RISKS AND THE LIMITATION OF LIABILITY AND SUCH LIMITATION WILL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.

10.

Indemnity. For purposes of this Section on indemnity, the following terms shall have the meanings defined herein:

Claims means all third party claims, actions, demands, and legal proceedings of any kind.Damages means all liabilities, damages, losses, judgments, authorized settlements, fines, costs and expenses payable to a third party, including, without limitation, reasonable legal support costs and expenses.

10.1.

Client Indemnity. Client agrees to defend, indemnify and hold Andromeda, its affiliates and their respective officers, directors, employees, agents, representatives and licensors harmless with respect to any third party claims resulting from or arising out of (i) Client's breach of this Agreement; or (ii) Client's Source Data; or (iii) Client's use of the Services, excluding claims that are based solely and exclusively on Andromeda's Services.

10.2.

Andromeda Indemnity. Andromeda will defend, indemnify, and hold harmless Client against any claim, demand, suit or proceeding made or brought against Client by a third party alleging that the Service infringes or misappropriates such third party's Intellectual Property Rights. If Andromeda receives information about an infringement or misappropriation claim related to the Service, Andromeda may in its discretion and at no cost to Client (i) modify the Service so that it is no longer claimed to infringe or misappropriate, without materially altering the utility of the Services, (ii) obtain a license for Client's continued use of that Service, or (iii) terminate the applicable Order for that Service upon ten (10) days' written notice and refund Client any prepaid fees covering the remainder of the term with respect to the terminated Service. The above defense and indemnification obligations do not apply if (a) the allegation does not state with specificity that the Service is the basis of the Claim against Client, (b) a Claim against Client arises from the use or combination of the Service or any part thereof with software, hardware, data, or processes not provided by Andromeda, if the Service or use thereof would not infringe without such combination, (c) a Claim against Client arises from Service under an Order for which there is no charge, (d) the alleged infringement arises from third-party materials or data, (e) the alleged infringement arises from a modification of the materials other than by or on instruction of Andromeda.

10.3.

Exclusive Remedy. The above indemnification sections state the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any third party claim described in this section.

10.4.

Procedure. As an express condition to the indemnifying party's obligation under this Section 10, the party seeking indemnification must: (a) promptly notify the indemnifying party in writing of the applicable Claim for which indemnification is sought; and (b) provide the indemnifying party with all non-monetary assistance, information, and authority reasonably required for the defense and settlement of such Claim. The indemnifying party may select counsel for defense of the Claim and direct the course of any litigation or other disputed proceedings concerning the Claim. The indemnified party may select its own counsel and direct its own defense of a Claim if it chooses to do so, but it must bear the costs of its own counsel and any activities in any disputed proceeding conducted by counsel of its choosing. The indemnifying party may settle any Claim, to the extent it only seeks a money payment, with or without the consent of the indemnified party, providing the settlement is a full and complete settlement of all Claims and Damages against the indemnified party. The indemnifying party must obtain the indemnified party's prior written consent to any settlement to the extent it consents to injunctive relief or requires any admission of fault or any public statement or contains terms governing future activities that would materially affect the indemnified party's business or interests, said consent not to be unreasonably withheld, conditioned, or delayed. The indemnifying party's indemnity obligation will be waived if (i) the indemnified party fails to give the indemnifying party prompt written notice of any claim and such delay limits or forecloses any defense or counterclaim the indemnifying party could have raised but for the delay; or (ii) the indemnified party enters into any settlement without the indemnifying party's express written consent.

11.

Governing Law and Venue. This Agreement will be governed by and interpreted in accordance with the laws of the State of California as applied to agreements entered into and to be performed entirely within the State of California between California residents, without giving effect to any conflict of law principles that would require the application of the substantive or procedural laws of a different jurisdiction. In the event that any dispute between the parties arises out of or is related to any of the provisions of this Agreement, and/or the performance or termination thereof, the prevailing party in any such action will recover all of its costs, including reasonable attorneys' fees. The parties agree that United Nations Convention on Contracts for the International Sale of Goods (1980) is specifically excluded from application to this Agreement. Any claims for emergency or preliminary injunctive relief may be brought in any court of competent jurisdiction. All other disputes, claims or controversy arising out of or relating to this Agreement, or the interpretation, making, performance, breach or termination thereof, will be subject to the exclusive jurisdiction of the California State Courts in San Francisco, or if there is federal jurisdiction, the United States District Court for the Northern District of California, and the parties agree to submit to the personal and exclusive jurisdiction and venue of these courts and the parties hereby waive all defenses based upon forum non conveniens, improper venue, or personal jurisdiction.

12.

General.

12.1.

Assignment. Neither party may assign this Agreement without the other party's prior written consent, except as part of a merger, acquisition, sale of substantially all assets, or similar transaction. Subject to the foregoing, this Agreement shall be fully binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective, permitted successors and assigns.

12.2.

Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

12.3.

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

12.4.

Force Majeure. Except for the payment of money due or payable, neither party shall be liable for any failure or delay in performance under this Agreement that might be due to disease, pandemics, strikes, shortages, riots, insurrection, fires, flood, storm, other weather conditions, explosions, acts of God, war, government action, inability to obtain delivery of parts, supplies, or labor, labor conditions (including strikes, lockouts or other industrial disturbances, including as related to pandemic disease), earthquakes, riots or acts of terrorism, or any other cause that is beyond the reasonable control of a party. Any delay or failure of this kind will not be deemed to be a breach of this Agreement and the time for performance of the affected obligation will be extended by a period that is reasonable in the circumstances. A party claiming the benefit of this clause will use reasonable efforts to mitigate the effect of any of the events or circumstances referred to above and will promptly advise the other party of the date by which its performance may reasonably be expected to resume, provided that the unaffected party may terminate this Agreement by written notice to the non-performing party if such condition or delay continues or is reasonably expected to continue for a period of thirty (30) days.

12.5.

Export Compliance. The Andromeda Services are subject to the trade and economic sanctions maintained by the Office of Foreign Assets Control (OFAC). By accessing the Services, Client agrees to comply with these laws and regulations. Specifically, Client represents and warrants that it is not (a) located in any country that is subject to OFAC's trade and economic sanctions, currently Cuba, Iran, North Korea, Syria, and the Crimea region of the Ukraine; or (b) an individual or entity included on any U.S. lists of prohibited parties including: the Treasury Department's List of Specially Designated Nationals List (SDN List) and Sectoral Sanctions List (SSI List). Additionally, Client agrees not to directly or indirectly sell, export, reexport, transfer, divert, or otherwise dispose of any Service received from Andromeda in contradiction with these laws and regulations.

12.6.

Independent Contractors. The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other's behalf without the other's prior written consent. Neither party shall represent itself as an agent, employee, legal representative, joint venturer, or partner of the other and shall not assume or purport to create any obligation on behalf of the other.

12.7.

Entire Agreement. This Agreement may not be supplemented, amended, and/or modified at any time unless the parties execute a written instrument that (i) must be in a mutually agreed upon written or electronic format, (ii) must be clearly designated as an amendment, addendum, or modification, and (iii) must be signed by an authorized representative of each party. The parties stipulate and agree that an exchange or series of written or electronic correspondences shall not be deemed to be such a written instrument, for supplemental, amendment or modification purposes. This Agreement, including all Orders, the Andromeda Privacy Policy at privacy@andromeda.ai, any exhibits, and/or attachments and/or other documents referred to in this Agreement are hereby incorporated in and made a part of this Agreement and contain the complete understanding and agreement of the parties and supersede all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein.

12.8.

Waiver. Any waiver, modification, or amendment of any provision of this Agreement will be effective only if in writing and signed by duly authorized representatives of the parties. The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. Except where otherwise specified, the rights and remedies granted to a party under this Agreement are cumulative and in addition to, and not in lieu of, any other rights or remedies which the party may possess at law or in equity.

12.9.

Contract Interpretation. Both parties to this Agreement have negotiated the provisions of this Agreement and have had access to counsel. Notwithstanding any rules of contract interpretation, both parties will be considered the drafting party and no provision of this Agreement will be construed against a party by reason of being the drafting party. Captions in this Agreement are for the convenience of the parties only and will not affect the interpretation or construction of this Agreement. In the event of any conflict between the terms of this Agreement and any exhibit or attachment hereto, the terms of this Agreement will prevail unless there is an express, clear intent in such exhibit or attachment to override a specific provision of this Agreement.

12.10.

Publicity. Neither party may issue press releases relating to this Agreement without the other party's prior written consent. Each party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party's standard guidelines.

12.11.

No Third-Party Beneficiaries. Except as expressly provided in this Agreement, there are no third-party beneficiaries to this Agreement.