Terms of Service

If you are accessing or using PDI Cloud Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “Customer” reference your company.

Last updated: Dec 18, 2023

These Terms of Service (“Terms of Service”) are entered into by and between Prescient Devices, Inc. a Delaware corporation (“PDI”) and the entity or person placing an order for or accessing any PDI Cloud Services (“Customer” or “you”). If you are accessing or using PDI Cloud Services on behalf of your company, you represent that you are authorized to accept this Agreement on behalf of your company, and all references to “you” or “Customer” reference your company.

Agreement; Effective Date: These Terms of Service together with all Order Forms, Statements of Work, exhibits and addenda hereto, and documents referenced and linked to herein (collectively, the “Agreement”) permit Customer to order PDI Cloud Services from PDI, sets forth the terms and conditions between the parties with respect thereto, and governs Customer’s access and use of the PDI Cloud Services. In the event of any conflict between the provisions in these Terms of Service and any Order Form or Statement of Work, the terms of such Order Form or Statement of Work, as applicable, shall prevail. In the event of any conflict between the provisions in these Terms of Service and any exhibits and addenda hereto or any documents referenced and linked to herein, the terms of such exhibits and addenda hereto or any documents referenced and linked to herein, as applicable, shall prevail. No terms or conditions stated in a Customer purchase order or in any other Customer provided business forms or order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void. The “Effective Date” of the Agreement is the date which is the earlier of (a) Customer’s initial access to the PDI Cloud Service through any online provisioning, registration or order process with PDI or (b) the effective date of the first Order Form that references these Terms of Service and is entered into between Customer and PDI.

Modifications to Terms of Service: From time to time, PDI may modify these Terms of Service; provided, that any modifications which are adverse to Customer will not become effective until renewal of Customer’s then-current Subscription Term or entry into a new Order Form. PDI will use reasonable efforts to notify Customer of the changes through communications via Customer’s account, email, posting through the PDI Cloud Services or other means. Customer may be required to click to accept or otherwise agree to the modified Terms of Service before renewing a Subscription Term or entering into a new Order Form, and in any event continued use of the PDI Cloud Services after the updated version of these Terms of Service goes into effect will constitute Customer’s acceptance of such updated version.

Orders by Affiliates: The Parties agree that an Affiliate of Customer may place orders for the PDI Cloud Services by executing a separate Order Form with PDI in which the Customer Affiliate agrees to be bound by all terms and conditions of this Agreement, in which case all references to "Customer" in the Agreement shall mean the Customer Affiliate which executes the Order Form; provided, however, that Customer shall remain responsible for the compliance of its Affiliates with the terms of the Agreement and the Order Forms, including without limitation payment of all fees due thereunder.

ACCEPTANCE: BY INDICATING YOUR ACCEPTANCE OF THESE TERMS OF SERVICE OR DOWNLOADING, ACCESSING OR USING ANY PDI CLOUD SERVICES, CUSTOMER AGREES TO BE BOUND BY ALL TERMS AND CONDITIONS OF THE AGREEMENT. IF YOU DO NOT AGREE TO THE AGREEMENT, PLEASE DO NOT USE THE PDI CLOUD SERVICES. FOR CLARITY, EACH PARTY EXPRESSLY AGREES THAT THE AGREEMENT IS LEGALLY BINDING UPON IT. THE AGREEMENT CONTAINS MANDATORY ARBITRATION PROVISIONS THAT REQUIRE THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS. PLEASE READ IT CAREFULLY.

1. Definitions

The defined terms used in this Agreement are as set forth in the definitions schedule attached as Schedule 1 hereto unless otherwise defined herein.

2. PDI Solution

2.1 PDI Edge Software and PDI Cloud Services

Subject to Customer’s compliance with the terms and conditions contained in this Agreement, the Documentation, and each Order Form, including, without limitation, payment of all applicable fees PDI hereby grants Customer during the Term:

a limited, non-exclusive, royalty-free, non-transferable, non-sublicenseable license to use (and to permit its Users to use) the PDI Edge Software as installed on the Hardware; and
the right to access and use (and to permit its Users to access and use) the PDI Cloud Services as made available by PDI in accordance with this Agreement.

Customer will not: (a) adapt, alter, modify, improve, translate or create derivative works of the PDI Edge Software or the PDI Cloud Services; or (b) reverse engineer, decompile, disassemble or otherwise attempt to reconstruct or obtain the source code to all or any portion of the PDI Edge Software or PDI Cloud Services; or (c) provide, maintain access to, or use the PDI Solution in any manner inconsistent with this Agreement.

2.2 Trial Subscription

If Customer receives a trial or evaluation subscription to the PDI Edge Software or PDI Cloud Services (a “Trial Version”), then Customer may use the Trial Version in accordance with the Agreement for the time period granted by PDI for the Trial Version (the “Trial Period”). Trial Versions are permitted solely for Customer’s use to determine whether to purchase a paid subscription to the PDI Edge Software and PDI Cloud Services. Trial Versions may have limited functionality and features. Customer’s right to access and use the Trial Version will terminate at the end of the Trial Period unless Customer elects to purchase a non-trial version of the PDI Edge Software and PDI Cloud Services under a separate Order Form with PDI. PDI has the right to terminate a Trial Subscription at any time for any reason. Notwithstanding anything to the contrary in the Agreement, the warranties, indemnities and other obligations of PDI hereunder shall not apply to Trial Versions. Further, any Customer Inputs Customer enters into the Trial Version, and any customizations made to the Trial Version by or for Customer, during Customer’s Trial Period will be permanently lost unless Customer orders a subscription to the same PDI Edge Software and PDI Cloud Services as those covered by the Trial Version or exports such data, before the end of the Trial Period.

2.3 Customer Access

Customer acknowledges and agrees that Customer’s and its Users’ access and use of the PDI Cloud Services is dependent upon access to telecommunications and Internet services. Customer will be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access PDI’s computer systems, and to access and use the PDI Cloud Services, including, without limitation, all costs, fees, expenses, and taxes of any kind related to the foregoing. PDI will not be responsible for any loss or corruption of data, lost communications, or any other loss or damage of any kind arising from Customer’s or its third party providers’ telecommunications or Internet services or any such hardware or software. If Customer permits non-employee Users to use the PDI Solution, Customer shall be responsible for any breach of this Agreement by any such third party.

2.4 Customer Inputs

Customer is responsible for all Customer Inputs. Customer represents, warrants and covenants that the Customer and its Users have all rights and licenses necessary to upload the Customer Content, to grant the licenses granted hereunder and to enable each party to exercise its rights and perform its obligations under this Agreement. Customer grants to PDI a non-exclusive, royalty-free, fully paid, worldwide license, under any and all of Customer’s Intellectual Property Rights, to access, use, copy, execute, host, store, test, analyze, and create derivative works of the Customer Inputs as necessary to provide the PDI Solution to Customer and to develop PDI Analytics. In addition, Customer agrees that PDI may use its third-party contractors and services providers to exercise the licenses granted to PDI in this Section to perform services for or on behalf of PDI. If PDI permits its third-party contractors to exercise the licenses granted to PDI, PDI shall be responsible for any breach of this Agreement by any such third-party.

2.5 Modifications to the PDI Cloud Services and PDI Edge Software

PDI reserves the right to modify the PDI Cloud Services and PDI Edge Software on a continuous basis and if any such modification materially and adversely reduces the functionality of the PDI Cloud Services or PDI Edge Software, Customer may terminate its subscription for the PDI Cloud Services or PDI Edge Software, as applicable, pursuant to Section 10.2(a). PDI may condition the implementation of new features, functionality or other modifications to the PDI Cloud Services or PDI Edge Software on Customer’s payment of additional fees, to be added at the beginning of a Renewal Subscription Term, provided that PDI generally charges other customers for such modifications.

2.6 Professional Services

Customer may request that PDI provide certain professional services and/or training related to Customer’s use of the PDI Cloud Services and PDI Edge Software pursuant to separate Statements of Work executed by the parties which shall reference this Agreement, the professional services to be performed and any additional terms and conditions with respect thereto. All such Statements of Work incorporated herein by reference.

2.7 Hardware

All Hardware will be shipped to Customer’s address specified on the Order Form. Risk of loss and title to Hardware will transfer to Customer on delivery to Customer. PDI will pass through to Customer any warranties applicable to the Hardware as approved by the manufacturer.

3. Customer Responsibilities

3.1 Access Credentials; Users

Customer will safeguard, and ensure that all Users safeguard the devices, computers, and networks used to access the PDI Cloud Services and safeguard all Access Credentials. Customer will be responsible for all acts and omissions of Users. Customer will notify PDI immediately if it learns of any unauthorized use of any Access Credentials. Customer will ensure that all its Users comply with the terms and conditions of this Agreement. Customer will promptly notify PDI of any suspected or alleged violation of the terms and conditions of this Agreement and will cooperate with PDI with respect to: (i) investigation by PDI of any suspected or alleged violation of this Agreement, and (ii) enforcement of this Agreement. Customer will at all times be responsible for all actions taken under a User’s account, whether such action was taken by a User, or by another party, and whether such action was authorized by a User. PDI reserves the right, in its sole discretion and without liability to Customer or its Users, to take any action PDI deems necessary or reasonable to ensure the security of the PDI Cloud Services and Customer’s Access Credentials and account, including terminating Customer’s access or the access of any of Customer’s Users, or requesting additional information to authorize activities related to Customer’s account.

3.2 Use Guidelines

Customer shall comply with all applicable laws, rules and regulations in its use of the PDI Cloud Services and PDI Edge Software. Customer shall, and shall ensure that its Users will, use the PDI Cloud Services and PDI Edge Software solely for Customer’s internal business purposes as contemplated by this Agreement and shall not:

(i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the PDI Cloud Services or PDI Edge Software available to any third party, other than as expressly permitted by this Agreement;

(ii) interfere with or disrupt the integrity or performance of the PDI Cloud Services, the PDI Technology or the data contained therein or disrupt any servers or networks connected to the PDI Cloud Services, or disobey any requirements, procedures, policies or regulations of networks connected to the PDI Cloud Services;

(iii) attempt to gain unauthorized access to the PDI Cloud Services or the PDI Technology or any related systems or networks;

(iv) remove, alter or obscure any proprietary notices associated with the PDI Cloud Services;

(v) access or use PDI Cloud Services or PDI Technology in a United States embargoed country or in violation of any applicable export law or regulation (including any United States export laws and regulations), provided, however, PDI shall:

(a) limit Customer’s access and exposure to information and materials that are subject to export control laws to the extent possible in light of the relationship between the parties, and

(b) prior to granting access or exposing Customer to information and materials subject to export control laws, clearly identify such information and materials as subject to export control laws and state which classification applies;

(vi) use the PDI Cloud Services or PDI Technology in violation of any applicable, law, rule regulation or guideline;

(vii) attempt to probe, scan, or test (including without limitation stress testing or penetration testing) the vulnerability of any system or network associated with the PDI Cloud Services or PDI Technology or breach any security or authentication measures; or

(viii) utilize the PDI Cloud Services or PDI Technology in order to (a) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (b) send or store infringing, obscene, threatening, libelous, or otherwise unlawful, unsafe, malicious, abusive or tortious material, including material harmful to children or violative of third party privacy rights; or (c) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs or plant malware on PDI’s computer systems, those systems of PDI’s third party service providers or vendors, or otherwise use the PDI Cloud Services to attempt to upload and/or distribute malware.

4. Fees and Payment

4.1 Fees

In consideration for the rights granted hereunder, Customer will pay to PDI the fees set forth in each Order Form in accordance with the payment schedule set forth in such Order Form. Unless otherwise specified in any Order Form, all invoices issued by PDI will be due and payable thirty (30) days after Customer’s receipt. All fees are nonrefundable, except as expressly otherwise provided herein, and will be paid in U.S. dollars and exclude all applicable sales, use, and other taxes.

4.2 Taxes

As between Customer and PDI, Customer will be responsible for collecting and remitting all taxes related to the use of the Customer Applications by Users. Customer will make all payments to PDI free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of fees to PDI, other than taxes based on PDI’s income, will be Customer’s sole responsibility, and Customer will provide PDI with official receipts issued by the appropriate taxing authority, or such other evidence as PDI may reasonably request, to establish that such taxes have been paid.

5. Confidentiality

5.1 Confidential Information

Each party (the “Disclosing Party”) may from time to time during the term of this Agreement disclose to or learn from the other party (the “Receiving Party”) certain information regarding the Disclosing Party’s business, including without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information whether disclosed orally, in writing or visually, that is either marked or designated as confidential or is identified in writing as confidential at the time of disclosure or which the Receiving Party knew or should have known, under the circumstances, was considered confidential or proprietary by the Disclosing Party (“Confidential Information”). For the avoidance of doubt, the PDI Solution, the Documentation, the PDI Analytics and the PDI Technology constitutes Confidential Information of PDI.

5.2 Protection of Confidential Information

The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to the employees of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party will

(a) protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care; and

(b) promptly advise the Disclosing Party upon becoming aware of any loss, disclosure, or duplication of the Confidential Information or of any breach of this Agreement, including, without limitation, the misappropriation of the Confidential Information. Both parties acknowledge and agree that the Disclosing Party may be irreparably harmed by any violation of this Section 5 (Confidentiality) and that the use of the Confidential Information for any purpose other than that stated herein may, among other things, enable the Receiving Party or other third parties receiving such Confidential Information to compete unfairly with the Disclosing Party. Therefore, in the event of a breach or threatened breach, the disclosing party shall be entitled, in addition to all other rights and remedies available at law or in equity, to seek

(i) an injunction restraining such breach, without being required to show any actual damage or to post security or other bond; or

(ii) a decree for specific performance of the applicable provision of this Agreement. Notwithstanding the termination or expiration of this Agreement, the obligations of the Receiving Party, with respect to the Confidential Information of Disclosing Party, shall be in full force and effect as follows:

(A) in the case of any information or materials that constitute a trade secret within the meaning of applicable law, for as long as such information and materials remain as a trade secret, or

(B) in the case of any other information or materials, during the term of this Agreement and for five (5) years following the termination or expiration of this Agreement.

5.3 Exceptions

The Receiving Party’s obligations will not apply that portion of the Disclosing Party’s Confidential Information that the Receiving Party can document:

(a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party;

(b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions;

(d) was independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is

(i) approved in writing by the Disclosing Party,

(ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or

(iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.

5.4 Return of Confidential Information

The Receiving Party will return to the Disclosing Party all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party. At the Disclosing Party’s request, the Receiving Party will certify in writing signed by an officer of the Receiving Party that it has fully complied with its obligations under this subsection.

5.5 Confidentiality of Agreement

6. Warranties

6.1 Warranties by Both Parties

Each party represents and warrants that:

(a) it has full power and authority to enter into and perform this Agreement;

(b) the person signing this Agreement on such party’s behalf has been duly authorized and empowered to enter into this Agreement; and

(c) that it will perform its obligations or exercise its rights hereunder in conformance with all applicable laws, rules, regulations and guidelines, including, without limitation, those related to privacy and data security.

6.2 PDI Cloud Services Warranty

PDI represents, warrants and covenants that

(i) the PDI Cloud Services and PDI Edge Software will include the functionality provided in the Documentation and

(ii) the professional services provided by PDI pursuant to a Statement of Work will be performed in a professional manner in accordance with the requirements set forth in the Statement of Work.

As Customer’s sole and exclusive remedy for any breach of the foregoing, PDI will use commercially reasonable efforts to modify or replace the nonconforming PDI Edge Software or PDI Cloud Services or reperform the nonconforming professional services. The foregoing warranty shall not apply to any Trial Version.

6.3 Disclaimer of Warranty

Disclaimer of Warranty. Except as expressly set forth in this section 6 (Warranties), PDI makes no other representations or warranties, whether, express, implied, or statutory, including without limitation regarding the PDI Solution, the Documentation, the PDI Technology, the Professional Services or otherwise with respect to the subject matter of this Agreement and expressly disclaims the implied warranties of merchantability, fitness for a particular purpose, title, and non infringement of third party rights as well as any warranty arising from course of dealing or usage of trade.

Notwithstanding anything to the contrary contained herein, as between PDI and Customer, any Trial Version is provided “AS IS” and “WITH ALL FAULTS” and PDI specifically disclaims any and all liability and warranties, express, implied or statutory, associated with a Proof of Concept, including without limitation the implied warranties of title, merchantability, noninfringement and fitness for a particular purpose as well as any warranty arising from course of dealing or usage of trade.

PDI shall not be responsible for ensuring and does not represent or warrant that:

(i) the PDI Solution will meet Customer's business requirements;

(ii) the PDI Solution will be error-free or uninterrupted or that the results obtained from its use will be accurate or reliable; or

(iii) all deficiencies in the PDI Solution can be found or corrected.

Further, PDI will not be responsible for:

(a) any warranty breaches caused by acts within the control of Customer or any User or interoperability of specific Customer infrastructure or software with the PDI Solution;

(b) the inability of Customer to access or interact with any other service provider through the internet, other networks or users that comprise the internet or the informational or computing resources available through the internet.

SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON DURATION OR THE EXCLUSION OF AN IMPLIED WARRANTY, SO THE LIMITATIONS HEREIN MAY NOT APPLY.

7. Ownership

7.1 Customer Ownership

Customer owns all right, title and interest in and to the Customer Inputs and all Intellectual Property Rights therein. Except for the rights and licenses expressly granted herein, all right, title and interest in and to all of the foregoing are reserved by Customer.

7.2 PDI Ownership

PDI and its suppliers own all right, title and interest in and to the PDI Solution, the PDI Technology, the PDI Analytics, and the Documentation and all Intellectual Property Rights therein. Except for the rights and licenses expressly granted herein, all right, title and interest in and to all of the foregoing are reserved by PDI and its suppliers. Nothing in this Agreement will be deemed to grant to Customer any right to receive either

(x) a copy of the software underlying the PDI Cloud Services, or any other PDI Technology, in either object or source code form, or

(y) the source code to any PDI Edge Software.

7.3 Feedback

In the event Customer provides PDI any suggestions, enhancement requests, techniques, methods, know-how, comments, recommendations, feedback or other input with respect to the PDI Solution, including without limitation in response to any product plans or roadmaps shared with Customer (collectively “Feedback”), unless otherwise agreed in writing prior to such disclosure, Customer grants to PDI a worldwide, royalty-free, fully paid, perpetual, irrevocable license to use, reproduce, modify, translate, reformat, distribute, perform, display, import, sell, license, offer for sale, make, have made and otherwise exploit the Feedback in any form, media, or technology, whether now known or hereafter developed, and to allow others to do the same without restriction or obligation of any kind, on account of confidential information, intellectual property rights or otherwise, and may incorporate into the PDI Solution any developments (“Improvements”) incorporating or derived from any Feedback, provided that any Feedback or Improvements must not name or otherwise identify Customer. Further, Customer hereby assigns any rights it may have in or to the PDI Analytics to PDI and, if such assignment cannot be effected for any reason, Customer grant of license in this Section 7.2 shall expressly include a license to any rights Customer may have in the PDI Analytics.

8. Indemnification

8.1 PDI Indemnity

PDI shall defend (at PDI’s expense), Customer and its officers, directors and employees from and against any third party claims, suits, or proceedings (“Claims”) brought against Customer or its officers, directors or employees by a third party contending that Customer’s use of the PDI Edge Software or the PDI Cloud Service in accordance with the Documentation infringes any patent, copyright or trade secret rights of a third party and shall pay all damages finally awarded by a court of competent jurisdiction or agreed to by PDI in settlement of the Claim. In the event that the PDI Edge Software or PDI Cloud Services or any part thereof is likely to, in PDI’s sole opinion, or do become the subject of an infringement related Claim, and PDI cannot, at its option and expense, on a commercially reasonable basis, procure for Customer the right to continue using the PDI Cloud Services, or any part thereof, or modify the PDI Cloud Services, or any part thereof, to make them non-infringing, then PDI may terminate the affected Order Forms with notice to Customer and will provide the Customer with a refund of any pre-paid fees for the unexpired portion of the remaining Term. PDI shall have no liability for any Claim or demand arising from

(i) an allegation that does not state with specificity that the PDI Edge Software or PDI Cloud Services is the basis of the Claims;

(ii) the use or combination of the PDI Edge Software or PDI Cloud Services or any part thereof with software, hardware, or other materials not developed by PDI if the PDI Edge Software or PDI Cloud Services or use thereof would not infringe without such combination;

(iii) modification of the PDI Edge Software or PDI Cloud Services by a party other than PDI, if the use of unmodified PDI Edge Software or PDI Cloud Services would not constitute infringement;

(iv) a breach by Customer or its Users of any obligation under this Agreement or a use of the PDI Edge Software or PDI Cloud Services by Customer or any User in a manner outside the scope of any right granted herein or not in accordance with the Documentation if the claim would not have arisen but for such breach or unauthorized use;

(v) an allegation made against Customer arising out of or related to a Trial Version Customer Inputs;

(vi) open source software or proprietary software or services provided by third party service providers or hosting providers; or

(vii) an allegation made against Customer prior to the execution of this Agreement or any allegation based upon any action by Customer prior to the execution of this Agreement.

The foregoing states PDI’s entire liability and Customer’s exclusive remedy for intellectual property rights infringement.

8.2 Customer Indemnity

Customer shall defend (at Customer’s expense), PDI and its officers, directors and employees from and against any Claims brought against PDI or its officers, directors or employees by a third party

(i) alleging that the Customer Inputs infringe the intellectual property rights of, or has otherwise harmed, a third party or

(ii) based upon any User’s use of the PDI Solution not in accordance with the terms hereof or not in accordance with the Documentation.

8.3 Indemnification Process

The foregoing indemnification obligations are conditioned on the indemnified party:

(a) notifying the indemnifying party promptly in writing of such action,

(b) reasonably cooperating and assisting in such defense at the indemnifying party’s expense, and

(c) giving sole control of the defense and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that does not fully release the indemnified party from liability or which seeks to impose liability, restrictions or other obligations on the indemnified party, without the indemnified party’s prior written consent.

9. Limitation of Liability

9.1 Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER UNDER THE APPLICABLE STATEMENT OF WORK OR THE APPLICABLE ORDER FORM UNDER WHICH THE CLAIM AROSE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH CLAIM OR CAUSE OF ACTION AROSE; PROVIDED, HOWEVER, THAT, WITH RESPECT TO A TRIAL VERSION, EACH PARTY’S TOTAL AGGREGATE LIABILITY SHALL NOT EXCEED $100. THE FOREGOING LIMITATIONS ARE CUMULATIVE AND NOT PER INCIDENT AND SHALL APPLY EVEN IF THE NON-BREACHING PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

9.2 Exclusion of Consequential and Related Damages

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSS OF, DAMAGE TO, OR CORRUPTION OF, DATA, LOSS OF USE, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR WHETHER SUCH DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES.

9.3 Exclusions

The foregoing limitations shall not apply to (i) a party’s indemnification obligations in Section 8, (ii) damages or liability resulting from a breach of Sections 2.1, 3.2 or 5, or (iii) a party’s misappropriation or violation of the other party’s Intellectual Property Rights. Further, the foregoing limitations shall not be construed to limit Customer’s payment obligations for undisputed amounts payable pursuant to an Order Form or Statement of Work.

9.4 Savings Clause

Each party acknowledges that the fees set forth in this Agreement reflect the allocation of risk between the parties and that the other party would not enter into this Agreement without these limitations on its liability. Neither party shall be responsible or liable for any loss, damage or inconvenience suffered by the other or by any third person, to the extent that such loss, damage or inconvenience is caused by the failure of the other party to comply with its obligations under this Agreement.

10. Term and Termination

10.1 Term

The term of this Agreement will commence on the Effective Date and remain in effect until the earlier of the date that all Trial Periods, Order Forms and Statements of Work have terminated or expired or until earlier termination of this Agreement as provided in this Section 10 (the “Term”). The term for each Order Form and Statement of Work shall be as set forth therein. Upon termination of this Agreement for any reason, all Order Forms and Statements of Work shall immediately terminate.

10.2 Termination

Either party may terminate this Agreement if the other party breaches this Agreement and fails to cure the breach within ten (10) days of receipt of written notice. Termination shall not relieve Customer of the obligation to pay any fees accrued or payable to PDI prior to the effective date of termination; provided, that, unless PDI has terminated this Agreement for Customer’s uncured breach, PDI will refund any prepaid fees paid by Customer for the unused Subscription Term following the termination date.

10.3 Rights and Obligations Upon Expiration or Termination

Upon expiration or termination of this Agreement, Customer’s and its Users’ right to access and use the PDI Solution will immediately terminate, Customer and its Users will immediately cease all use of the PDI Solution and deinstall all PDI Edge Software, and each party will make no further use of any Confidential Information, materials, or other items (and all copies thereof) belonging to the other party. PDI may destroy any Customer Inputs in its possession or control unless PDI receives, no later than ten (10) business days after the effective date of the expiration or termination of this Agreement, a written request for the delivery to Customer of the then-most recent back-up of the Customer Inputs. PDI will use all reasonable efforts to deliver the back-up to Customer within thirty (30) days of its receipt of such a written request.

10.4 Survival

Sections 1, 4, 5, 7, 8, 9, 10, and 11 shall survive any termination or expiration of this Agreement.

11. General

11.1 Marketing

Neither party has the right, without the prior written permission of the other party, to use the other party’s name or logo, or to make any public disclosures or announcements that would divulge the existence and nature of this Agreement, or the work to be performed hereunder; provided, however, that with Customer’s prior written consent and approval, PDI may issue a press release announcing the relationship of the parties created hereby.

11.2 Governing Law; Jurisdiction

This Agreement and any action related thereto will be governed and interpreted by and under the laws of the Commonwealth of Massachusetts, without giving effect to any conflicts of laws principles that require the application of the law of a different state. Each party hereby consents to the personal jurisdiction and venue in the state and federal courts serving the Commonwealth of Massachusetts. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Customer shall pay on demand all of PDI’s reasonable attorney fees and other costs incurred by PDI to enforce this Agreement or to collect any fees or charges due PDI hereunder.

11.3 Export; Anti-Corruption

Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the PDI Solution, provided, however that each party shall

(a) limit the other party’s access and exposure to information and materials that are subject to export control laws to the extent possible in light of the relationship between the parties, and

(b) prior to granting access or exposing the other party to information and materials subject to export control laws, clearly identify such information and materials as subject to export control laws and state which classification applies. Without limiting the foregoing,

(i) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and

(ii) Customer shall not permit Users to access or use PDI Solution in violation of any U.S. export embargo, prohibition or restriction. Customer represents that it has not received or been offered any illegal or improper bribe, kickback, payment, gift of more than nominal value, or thing of value from any of PDI’s employees or agents in connection with this Agreement.

If Customer learns of any violation of the above restriction, Customer will use reasonable efforts to promptly notify PDI.

11.4 Severability

If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.

11.5 Waiver; Remedies

Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

11.6 Entire Agreement

To the maximum extent permitted by applicable law, this Agreement, together with the documents referenced herein and all Order Forms and Statements of Work executed hereunder, constitute the entire agreement between the parties as to its subject matter, and supersede all previous and contemporaneous agreements, proposals or representations, written or oral, concerning the subject matter of this Agreement. No representation, undertaking or promise shall be taken to have been given or be implied from anything said or written in negotiations between the parties prior to this Agreement except as expressly stated in this Agreement. Neither party shall have any remedy in respect of any untrue statement made by the other upon which that party relied in entering into this Agreement (unless such untrue statement was made fraudulently) and that party’s only remedy in respect of any untrue statement shall be for breach of contract as provided in this Agreement. No modification, amendment, or waiver of any provision of this Agreement (or any Order Form or Statement of Work) shall be effective unless in writing and signed by the party against whom the modification, amendment, or waiver is to be asserted. Customer acknowledges and agrees that its agreement hereunder is not contingent upon the delivery of any future functionality or features not specified herein or in an Order Form or dependent upon any oral or written, public or private comments made by PDI with respect to future functionality or features for the PDI Solution. In the event of any conflict between the provisions in this Agreement and any Order Form or Statement of Work, the terms of such Order Form or Statement of Work shall prevail. No terms or conditions stated 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.

11.7 No Assignment

Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that PDI may assign this Agreement without such consent in connection with a merger, acquisition, reorganization or change of control, including without limitation a sale of all or substantially all of its assets, stock or business to which this Agreement relates. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.

11.8 Force Majeure

Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by acts of God, wars, terrorism, shortage of materials, pandemics, epidemics, earthquake, flood, natural disasters, travel restrictions, failures of utility providers, telecommunications providers or other third party service providers or suppliers, or any other event beyond the reasonable control of such party after taking commercially reasonable precautions, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.

11.9 Independent Contractors

PDI’s relationship to Customer is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and will not represent to any third party that it has, any authority to act on behalf of the other.

11.10 Independent Contractors

All notices under this Agreement shall be in writing. All notices shall be given

(i) by delivery in person

(ii) by a nationally recognized next day courier service,

(iii) by first class, registered or certified mail, postage prepaid,

(iv) by facsimile or

(v) by electronic mail to the address of the party specified in this Agreement or an Order Form.

All notices shall be effective upon

(i) receipt by the party to which notice is given,

(ii) the second (2nd) day following sending by electronic mail or facsimile, or

(iii) on the fifth (5th) day following mailing, whichever occurs first.

Each party may change its address for receipt of notice by giving notice of such change to the other party.

11.11 Counterparts; Electronic Signatures

This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument. A manually or electronically signed copy of this Agreement, any Order Form or any Statement of Work delivered by facsimile, e-mail or other means of electronic transmission shall be deemed to have the same legal effect as delivery of an original signed copy of the Agreement, the Order Form or Statement of Work. If this Agreement is executed in counterparts, no signatory is bound until all parties have duly executed this Agreement.

11.12 Federal Government End Use Provisions

If Customer is the United States federal government or an agency thereof, PDI provides the PDI Solution, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with PDI to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.

11.13 Construction

The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular, the singular the plural, and the part the whole, (ii) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (iii) “including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation,” and (iv) references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole. Any reference in this Agreement to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time to time. The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities shall not be interpreted against the drafting party.

Schedule 1: Defined Terms

“Access Credentials” mean login information, passwords, security protocols, and policies through which Users access and use the PDI Cloud Services.

“Customer Inputs” means information, data, text, content, designs, videos, images, audio clips, photos, graphics, and / or other types of content, information and/or data posted, provided and/or uploaded to the PDI Cloud Services by Customer and/or its Users directly or indirectly through connection of the PDI Hardware with the PDI Cloud Services.

“Documentation” means text and/or graphical materials, whether in print or electronic form, that describe the features, functions and use of the PDI Solution and which are made available to Customer by PDI.

“Hardware” means any hardware products, including edge hardware products, supplied by PDI to Customer pursuant to an Order Form.

“Intellectual Property Rights” mean any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) registrations, applications, renewals, extensions, or reissues of the foregoing, in each case, in any jurisdiction throughout the world.

“Order Form” means PDI’s form of order form signed by an authorized representative of each party.

“PDI Analytics” means any information, data, statistics, metadata, inferences, interrelationships, and/or associations generated or derived by the PDI Cloud Services or PDI Edge Software from aggregated, anonymized usage information and data across PDI’s customer base.

“PDI Applications” means software applications built by PDI using Prescient Designer and which run on the PDI Cloud Services and on Hardware.

“PDI Cloud Services” means the version of the PDI software as a service offering, including without limitation Prescient Designer, cloud-based virtual machine, cloud-based database and cloud-based application dashboard, made generally commercially available by PDI as of the Effective Date, and all Updates thereto made generally commercially available by PDI to its customers that have subscribed for Support Services.

“PDI Edge Software” means PDI’s proprietary edge-agent software running inside each edge computer or other hardware or virtual machine to control sensors, appliances, and equipment, perform data acquisition and data processing including but not limited to machine vision and machine learning, and communicate with the PDI Cloud Service. The PDI Edge Software includes all Updates.

“PDI Solution” the Hardware, PDI Applications, PDI Edge Software and PDI Cloud Services ordered by Customer pursuant to an Order Form.

“PDI Technology” means the computer software, computer code, scripts, neural networks, artificial intelligence, machine learning models, application programming interfaces, methodologies, templates, work flows, tools, algorithms, formulas, user interfaces, know-how, trade secrets, techniques, designs, inventions, third party services and other tangible or intangible technical material, information and works of authorship underlying or otherwise used to make available the PDI Solution, including, without limitation, all upgrades, enhancements, modifications, additions and improvements thereto and all derivative works thereof, and Intellectual Property Rights therein and thereto.

“Support Services” means technical support and maintenance services provided by PDI to its customers that have subscribed for Support Services. The number of hours of Support Services that Customer is entitled to is listed in the applicable Order Form.

“Trial Period” and “Trial Version” shall each have the meaning set forth in Section 2.2 of the Terms of Service.

“Updates” mean all upgrades, enhancements, improvements, maintenance releases, additions, and modifications of the PDI Solution made generally commercially available by PDI to its customers who have subscribed for Support Services. Updates may also include new features and/or functionality for which PDI reserves the right to charge an additional fee if Customer elects to activate such new features and/or functionality.

“User” means the employees and/or contractors of Customer which are authorized by Customer to access and use of the PDI Solution.