Software Subscription Agreement

Overview

This Software Subscription Agreement (the “Agreement”) effective as of the last date of signature in the applicable Order Form (the “Effective Date”), is by and between:

Neural Hiive LLC, a Texas limited liability company with its principal place of business located in Prosper, TX USA (“Neural Hiive”), and the legal entity executing the applicable Order Form (“Customer”).

Neural Hiive and Customer may be referred to herein collectively as the “Parties” or individually as “Party.”

The Parties are either contemplating entering into a business relationship or have already entered into one. To accomplish their goals efficiently and effectively, they may find it necessary to disclose certain confidential and proprietary information to the other Party. Each desire to ensure the confidentiality of this confidential information (as defined below) and its non-use by each Party.

Accordingly, in consideration of the mutual promises in this Agreement, the Parties agree as follows:

1. Provision of Software

Neural Hiive shall make the Software available to Customer for use by Customer, its Affiliates and Authorized Parties for whom Customer enables access solely for the internal business purposes of Customer and its Affiliates, subject to this Agreement, including the scope of use defined in the applicable Order Form.

1.1 Invoices & Payment

All fees for the Software are based on access & usage rights acquired, and will be electronically invoiced to, and remitted by, Customer. All fees shall be due and payable within thirty (30) days of invoice date, except fees subject to a reasonable and good faith dispute. Customer shall notify Neural Hiive in writing of any good-faith disputed charge within ten (10) days of the applicable invoice date, specifying the disputed amount and the basis for the dispute in reasonable detail. Any charge not disputed within such period shall be deemed accepted and shall no longer qualify as a fee ‘subject to a reasonable and good faith dispute’ for purposes of this Agreement.

Neural Hiive shall email invoices to the Customer within two business days of the date of the invoice. Customer shall provide Neural Hiive with complete and accurate billing contact information including a valid email address. Upon Neural Hiive's request, Customer will make payments via electronic bank transfer. Except for a termination and/or refund as specifically set forth to the contrary under Section 6. “Warranties”, Section 7 “IP Indemnification”, Section 9.1 “Termination”, and all Order Forms are non-cancelable, and all payments are non-refundable.

1.2 Suspension for Non-Payment

Except for fees subject to a reasonable and good faith dispute, if a payment is more than thirty (30) days past due, Neural Hiive may, upon fifteen (15) days’ written notice to Customer, suspend the Software, without liability to Customer, until such amounts are paid in full.

1.3 Taxes

Fees invoiced pursuant to this Agreement do not include, and may not be reduced to account for, any taxes, which may include local, state, provincial, federal or foreign taxes, withholding taxes, levies, duties or similar governmental assessments of any nature, including, but not limited to, value added taxes, excise, use, goods and services taxes, consumption taxes or similar taxes (collectively “Taxes”). Customer is responsible for paying all Taxes imposed on the Software or any other services provided under this Agreement.

If Neural Hiive has a legal obligation to pay or collect Taxes for which Customer is responsible under this Agreement, the appropriate amount shall be computed based on Customer's address listed in the Order Form for this Agreement which will be used as the ship-to address on the Order Form, and invoiced to and paid by Customer, unless Customer provides Neural Hiive with a valid tax exemption certificate authorized by the appropriate taxing authority.

2. Customer Obligations

Customer shall:

• Have sole responsibility for the accuracy, quality, and legality of all Customer Data; and
• Take commercially reasonable efforts to prevent unauthorized access to, or use of, the Software, and notify Neural Hiive promptly of any unauthorized access or use.

Customer shall not:

• Use the Software in violation of applicable Laws;
• In connection with the Software, send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights;
• Knowingly send or store Malicious Code in connection with the Software;
• Knowingly interfere with or disrupt performance of the Software or the data contained therein; or
• Attempt to gain access to the Software or its related systems or networks in a manner not set forth in the Documentation.

Customer is responsible for its Affiliates and Authorized Parties compliance with this Agreement and any breach by its Affiliates or Authorized Parties shall be deemed a breach by Customer.

3. Proprietary Rights

As between Neural Hiive and Customer, Customer owns all right, title and interest to its Customer Data. As between Customer, Neural Hiive, and Neural Hiive's licensors, Neural Hiive and/or its licensors own all right, title and interest to the Software, Documentation, and other Neural Hiive Intellectual Property Rights. Except for the limited rights expressly granted to Customer hereunder, Neural Hiive reserves all rights, title and interest in and to the Software and Documentation, including all related Intellectual Property Rights.

Neural Hiive shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Software any Customer Input. Neural Hiive shall have no obligation to make Customer Input an Improvement. Customer shall have no obligation to provide Customer Input.

3.1 Restrictions

Customer shall not:

• (i) Modify, copy, or create derivative works based on, the Software or Documentation;
• (ii) License, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Software or Documentation available to any third party other than to Authorized Parties as permitted herein;
• (iii) Reverse engineer or decompile any portion of the Software or Documentation, including but not limited to, any software utilized by Neural Hiive in the provision of the Software and Documentation, except to the extent required by Law;
• (iv) Access the Software or Documentation in order to build any commercially available product or service; or
• (v) Copy any features, functions, integrations, interfaces or graphics of the Software or Documentation.

Notwithstanding subsection (v), Customer may make a reasonable number of copies of the Documentation for internal business purposes only.

4. Confidentiality

Each party (a “Recipient”) shall use the same degree of care that it uses to protect its own confidential information of like kind (but in no event using less than a reasonable standard of care) to not disclose or use any Confidential Information of the other party (a “Discloser”) except as reasonably necessary to perform Recipient's obligations or exercise Recipient's rights pursuant to this Agreement or with the Discloser's prior written permission. Either party may disclose Confidential Information on a need-to-know basis to its Affiliates, contractors and service providers bound by confidentiality obligations at least as restrictive as those in this section.

To the extent required by Law, Recipient's disclosure of Discloser's Confidential Information shall not be considered a breach of this Agreement provided that Recipient promptly provides Discloser with prior notice of such disclosure (to the extent legally permitted) and reasonable assistance, at Discloser's cost, if Discloser wishes to contest the disclosure. Discloser shall have the right to seek injunctive relief to enjoin any breach or threatened breach of this section, it being acknowledged by the parties that other remedies may be inadequate.

4.1 Survival

The obligations of confidentiality under this Section 4 shall survive termination or expiration of this Agreement for five (5) years, except that obligations with respect to Confidential Information constituting a trade secret under applicable law shall survive indefinitely.

4.2 Return and Destruction

Upon expiration or termination of this Agreement, or upon Discloser's written request, Recipient shall promptly return or, at Discloser's option, permanently destroy all Confidential Information in its possession, including copies and derivatives, and shall certify such return or destruction in writing within ten (10) days, provided that Recipient may retain one archival copy solely for legal compliance purposes, subject to its ongoing confidentiality obligations.

5. Protection and Security of Customer Data

Neural Hiive shall maintain a security program materially in accordance with industry standards, that is designed to protect the security, confidentiality, and integrity of Customer Data. Neural Hiive shall not use Customer Data to train, fine-tune, or otherwise improve any artificial intelligence or machine learning model that is shared with, or made available to, any party other than Customer, except with respect to Aggregated Data as permitted below.

Neural Hiive may collect and use anonymized, aggregated statistical data derived from Customer Data (“Aggregated Data”), provided that:

• Such data is de-identified in accordance with the standards set forth under 45 C.F.R. § 164.514(b) or a comparable applicable standard;
• Such Aggregated Data does not identify Customer, its Authorized Parties, or any individual;
• Neural Hiive uses Aggregated Data solely for internal analytics, benchmarking, and improving Neural Hiive's products and services; and
• Aggregated Data is not sold, licensed, or disclosed to any third party.

Neural Hiive shall not transfer Customer Data outside the United States without Customer's prior written consent, except as necessary to use subprocessors disclosed to Customer via Neural Hiive's subprocessor list, as updated by Neural Hiive from time to time with reasonable advance notice to Customer of any new subprocessor with access to Customer Data.

5.1 Unauthorized Disclosure

If either party becomes aware of a Security Breach, such party must promptly notify the other party, unless legally prohibited from doing so, within forty-eight hours or any shorter period required by Law. Additionally, each party will reasonably assist the other party in mitigating any potential damage. As soon as reasonably practicable after any Security Breach, Neural Hiive shall conduct a root cause analysis and, upon request, will share the results of its analysis and its remediation plan with Customer.

6. Warranties

Each party warrants that it has the authority to enter into this Agreement and, in connection with its performance of this Agreement, shall comply with all Laws applicable to it including, but not limited to, Laws related to data privacy, international communications and the transmission of technical or Personal Data. Neural Hiive warrants that during the Term:

• The Software shall perform materially in accordance with the Documentation;
• The functionality of the Software will not be materially decreased; and
• To the best of its knowledge, the Software does not contain, and Neural Hiive will not knowingly introduce, any Malicious Code.

In the event of a breach of the warranty set forth in (i) and (ii) above, Neural Hiive shall correct the non-conforming Software at no additional charge to Customer, and in the event Neural Hiive is unable to correct such deficiencies after good-faith efforts, Neural Hiive shall refund Customer amounts paid attributable to the defective Software from the date Neural Hiive received such notice.

Customer shall use commercially reasonable efforts to notify Neural Hiive in writing within thirty (30) days of identifying a deficiency, but Customer's failure to notify Neural Hiive within such period shall not affect Customer's right to receive warranty remedies unless Neural Hiive is somehow unable to, or impaired in its ability to, correct the deficiency due to Customer's failure to notify. Notice of breaches of the warranty in (i) shall be made through Neural Hiive's then-current error reporting system; notices of breaches of any other warranty shall be made in writing to Neural Hiive in accordance with the notice provisions of this Agreement.

The remedies set forth in this section shall be Customer's sole remedy and Neural Hiive's sole liability for breach of these warranties unless the breach of warranty constitutes a material breach of the Agreement and Customer elects to terminate the Agreement in accordance with the section entitled “Termination.”

6.1 Disclaimer

7. IP Indemnification

Neural Hiive shall defend Customer, at Neural Hiive's expense, from claims, demands, suits, or proceedings made or brought against Customer by a third party (“Claims”) alleging that the use of the Software as contemplated hereunder infringes such third party's Intellectual Property Rights and shall indemnify and hold Customer harmless against any loss, damage or costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys' fees) (collectively, “Losses”); provided that Customer:

• Promptly gives written notice of the Claim to Neural Hiive (although a delay of notice will not relieve Neural Hiive of its obligations under this section except to the extent that Neural Hiive is prejudiced by such delay);
• Gives Neural Hiive sole control of the defense and settlement of the Claim (although Neural Hiive may not settle any Claim unless it unconditionally releases Customer of all liability); and
• Provides to Neural Hiive, at Neural Hiive's cost, all reasonable assistance.

Neural Hiive shall have no liability for Claims or Losses to the extent arising from:

• Modification of the Software by anyone other than Neural Hiive;
• Use of the Software in a manner inconsistent with the Agreement or Documentation; or
• Use of the Software in combination with any other product or service not provided by Neural Hiive.

If Customer is enjoined from using the Software or Neural Hiive reasonably believes it will be enjoined, Neural Hiive shall have the right, at its sole option, to obtain for Customer the right to continue use of the Software or to replace or modify the Software so that it is no longer infringing. If neither of the foregoing options is reasonably available to Neural Hiive, then the Agreement may be terminated at either party's option and Neural Hiive's sole liability, in addition to the indemnification obligations herein, shall be to refund any prepaid fees for the Software that was to be provided after the effective date of termination.

7.1 Customer Indemnification

Customer shall defend, indemnify, and hold harmless Neural Hiive and its officers, directors, employees, and agents from and against any Claim arising out of or related to:

• Customer Data, including any allegation that Customer lacked the rights necessary to submit such data to the Software;
• Customer's breach of this Agreement, including Sections 2 (Customer Obligations) or 3.1 (Restrictions);
• Customer's or any Authorized Party's use of the Software in violation of applicable Law; or
• Any Customer Input provided to Neural Hiive;

provided that Neural Hiive (a) gives Customer prompt written notice of the Claim, (b) grants Customer sole control of the defense and settlement, and (c) reasonably cooperates at Customer's expense.

8. Limitation of Liability

8.1 Limitation of Liability

8.2 Exclusion of Damages

8.3 Neural Hiive Remediation Obligations

If unauthorized disclosure of or access to Personal Data is caused by Neural Hiive's breach of its security and/or privacy obligations under this Agreement, Neural Hiive shall pay the reasonable and documented costs incurred by Customer in connection with the following items:

• Costs of any required forensic investigation to determine the cause of the breach;
• Providing notification of the Security Breach to affected individuals, applicable government agencies, and relevant industry self-regulatory agencies, and to the media, in each case if and to the extent required by applicable Law; and
• Providing credit monitoring or identity-theft protection services to affected individuals where required by applicable Law.

Notwithstanding the foregoing, or anything in this Agreement to the contrary, Neural Hiive shall have no responsibility to pay costs of remediation to the extent they are due to reckless misconduct, gross negligence, willful misconduct and/or fraud by Customer or its employees, agents, contractors, or Authorized Parties.

8.4 Third Party Damages

If Neural Hiive breaches this Agreement, Neural Hiive shall reimburse Customer, subject to 8.1, for reasonable costs and expenses actually paid to third parties for:

• Amounts paid to affected third parties as damages or settlements arising from such breach;
• Fines and penalties imposed by governmental authority arising from such breach; and
• Legal fees, including reasonable attorneys’ fees, to defend against third party claims arising from such breach.

9. Term & Termination

This Agreement continues from the Effective Date until all Order Forms have expired or otherwise been terminated, unless extended pursuant to the written agreement of the parties (“Term”). Subscriptions to the Software commence on the date and are for the period set forth in the applicable Order Form.

9.1 Termination

Either party may terminate this Agreement:

• Upon thirty (30) days prior written notice to the other party for a material breach by the other party if such breach remains uncured at the expiration of such notice period; or
• Immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

If the Agreement is terminated, all Order Forms are simultaneously terminated and Customer shall, as of the date of any termination, immediately cease accessing and otherwise utilizing the applicable Software (except as permitted under the sections entitled “Retrieval of Customer Data” and/or “Transition Period Before Final Termination”) and Neural Hiive Confidential Information.

Upon termination by Customer pursuant to this section, Neural Hiive shall refund Customer any prepaid fees for the affected Software that was to be provided after the effective date of termination. Termination for any reason shall not relieve Customer of the obligation to pay any fees accrued or due and payable to Neural Hiive prior to the effective date of termination and termination for any reason other than for uncured material breach by Neural Hiive shall not relieve Customer of the obligation to pay all future amounts due under all Order Forms.

9.2 Retrieval of Customer Data

Upon Customer's written request made on or prior to expiration or termination of the Agreement, Neural Hiive will give Customer limited access to the Software for a period of up to sixty (60) days, at no additional cost, solely for purposes of retrieving Customer Data. Subject to such sixty day period and Neural Hiive's legal obligations, Neural Hiive has no obligation to maintain or provide any Customer Data and shall, unless legally prohibited, delete Customer Data by deleting Customer's Tenant; provided, however, that Neural Hiive will not be required to remove copies of the Customer Data from its backup media and servers until such time as the backup copies are scheduled to be deleted, provided further that in all cases Neural Hiive will continue to protect the Customer Data in accordance with this Agreement.

9.3 Transition Period Before Final Termination

If this Agreement is terminated and Customer submits a written request to Neural Hiive for a onetime transition period within thirty (30) days of such termination, Neural Hiive will continue to provide the Software for up to ninety (90) days (the “Transition Period”). Monthly fees for the Transition Period will be 1/12 of the immediately preceding twelve-month period plus an additional five percent (5%). If Customer requests transition assistance during the Transition Period, Neural Hiive will provide consulting cooperation and assistance regarding the Neural Hiive Software as set forth in a statement of work, governed by a professional services agreement, at Neural Hiive's then-current rates for consulting services unless a different rate is mutually agreed upon by the parties.

Notwithstanding the foregoing, if Neural Hiive is enjoined from performing, or termination of the Agreement was due to Customer's breach, Neural Hiive has no obligation to perform under this section unless it receives (i) payment of all fees not subject to reasonable and good faith dispute, (ii) prepayment of fees for further services, and (iii) certification of ongoing compliance with the terms of this Agreement during the Transition Period.

9.4 Surviving Provisions

Sections 1.1, 3, 4, 5 and 5.1 (for so long as Neural Hiive retains Customer Data), 6.1, 7, 8, 9.2 and 9.3, 10 (except 10.2), and 11 shall survive any termination or expiration of this Agreement.

10. General Provisions

10.1 Relationship of the Parties

The parties are independent contractors. This Agreement does not create nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries to the Agreement.

10.2 Insurance

Throughout the Term, Neural Hiive shall maintain, at its own expense, the following insurance coverages with carriers rated A- or better by A.M. Best:

• Commercial General Liability: $1,000,000 per occurrence / $2,000,000 aggregate;
• Technology Errors & Omissions / Professional Liability: $1,000,000 per claim / $1,000,000 aggregate;
• Cyber Liability and Data Breach: $1,000,000 per occurrence;
• Workers’ Compensation: statutory limits.

Neural Hiive shall provide Customer with certificates of insurance evidencing the foregoing upon request and shall provide thirty (30) days’ prior written notice of cancellation or material reduction of coverage. Customer shall be named as an additional insured on Neural Hiive's Commercial General Liability policy.

10.3 Notices

Unless expressly stated otherwise, all notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; and (ii) the third business day after first class mailing. Notices to Neural Hiive shall be addressed to the attention of its General Counsel. Notices to Customer shall be addressed to Customer's signatory of this Agreement. Each party may modify its recipient of notices by providing notice pursuant to this Agreement.

10.4 Waiver and Cumulative Remedies

No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right or any other right. Other than as expressly stated, the remedies provided in this Agreement are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

10.5 Force Majeure

Neither party shall be deemed in default of this Agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, pandemic, fire, natural disaster, accident, act of government, shortages of materials or supplies or any other cause beyond the control of such party (“Force Majeure”), provided that such party gives the other party written notice thereof promptly and, in any event, within fifteen days of discovery thereof and uses its best efforts to cure the delay. In the event of such Force Majeure, the time for performance or cure shall be extended for a period equal to the duration of the Force Majeure but not in excess of twelve months.

10.6 Assignment

Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms) without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets so long as the assignee agrees to be bound by all of the terms of this Agreement and all past due fees are paid in full. Any attempt by a party to assign its rights or obligations under this Agreement other than as permitted by this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

10.7 Governing Law; Waiver of Jury Trial

This Agreement shall be governed exclusively by laws of the State of Texas, without regard to its conflicts of laws rules. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

10.8 Export

Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Software. Without limiting the generality of the foregoing, Customer shall not make the Software available to any person or entity that:

• Is located in a country that is subject to a U.S. government embargo;
• Is listed on any U.S. government list of prohibited or restricted parties; or
• Is engaged in activities directly or indirectly related to proliferation of weapons of mass destruction.

10.9 Late Fees, Costs, and Attorneys' Fees

A late payment charge of 1.5% per month, compounded monthly, shall apply to any undisputed payment due from Customer that is in arrears for a period exceeding 30 days. Any disputes not timely submitted shall also be subject to the late payment charge in this section. In any legal action or arbitration proceeding brought on account of a breach, the prevailing party shall recover from the other party all costs of litigation or arbitration, including reasonable attorneys' fees.

10.10 Dispute Resolution

Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity thereof, shall be finally resolved by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The seat of arbitration shall be Collin County, Texas. The arbitration shall be conducted before a single arbitrator unless the amount in controversy exceeds $1,000,000 USD, in which case a panel of three arbitrators shall be convened. The award shall be final and binding, and judgment on the award may be entered in any court of competent jurisdiction. Nothing in this Section shall preclude either party from seeking emergency injunctive relief from a court of competent jurisdiction to preserve the status quo pending arbitration.

10.11 Miscellaneous

This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof. In the event of a conflict, the provisions of an Order Form shall take precedence over provisions of the body of this Agreement and over any other exhibit or attachment. Customer acknowledges that it has had the opportunity to review all exhibits, and attachments hereto. This Agreement supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.

No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. 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. Notwithstanding anything to the contrary in this Agreement, no terms or conditions in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. This Agreement may be executed in counterparts and/or by electronic signatures.

10.12 Public Reference

Neural Hiive may publicly identify Customer as a customer of Neural Hiive (e.g., on its website customer list) only with Customer's prior written consent. Each distinct use of Customer's name, logo, or likeness (including case studies, press releases, presentations, and marketing materials) requires separate prior written approval from Customer's designated marketing contact. Neural Hiive shall remove any reference to Customer from materials within its reasonable control within thirty (30) days of receipt of Customer's written request.

11. Definitions

Contact

For questions about this Agreement or to provide notices, please contact: