FrenchFry.ai Platform Terms of Service

THESE TERMS OF SERVICE (THE “TERMS”) ARE A LEGAL AGREEMENT BETWEEN YOU (“CUSTOMER”) AND GEARHART HOLDINGS, LLC D/B/A FRENCHFRY.AI (“FRENCHFRY”). BY CLICKING THE “I ACCEPT” BUTTON, EXECUTING AN ORDER THAT INCLUDES THESE TERMS BY REFERENCE OR USING THE PLATFORM (AS DEFINED BELOW) CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS REVIEWED AND ACCEPTS THESE TERMS. IF YOU ARE AGREEING TO THESE TERMS AS AN INDIVIDUAL, “CUSTOMER” REFERS TO YOU INDIVIDUALLY. IF YOU ARE AGREEING TO THESE TERMS AS A REPRESENTATIVE OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND “CUSTOMER” REFERS TO THAT ENTITY AND ALL THE USERS SPECIFIED IN THE ORDER. IF CUSTOMER DOES NOT AGREE WITH ALL OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THE PLATFORM. FRENCHFRY MAY MAKE CHANGES TO THE PLATFORM AT ANY TIME. IN ADDITION, FRENCHFRY MAY MAKE CHANGES TO THESE TERMS AT ANY TIME BY POSTING NOTICE OF THE CHANGES AND THE UPDATED TERMS OR BY SENDING AN EMAIL NOTIFICATION TO THE EMAIL ADDRESS ON RECORD FOR CUSTOMER. CUSTOMER’S CONTINUED USE OF THE PLATFORM AFTER SUCH CHANGES HAVE BEEN POSTED WILL SIGNIFY CUSTOMER’S ASSENT TO AND ACCEPTANCE OF THE REVISED TERMS.

DEFINITIONS

“Activation Date” means the date on which Platform is scheduled to be made available to Customer.

“Ancillary Services” means implementation, training or consulting services that FrenchFry may perform, as described in an Order executed by the parties.

“Authorized Purposes”means, unless otherwise permitted in an applicable Order, (a) if the Subscription Term is not for an Evaluation License or a Beta License, use of the Platform solely for Customer’s internal purposes and not for the provision of services to any third party; (b) if the Subscription Term is for an Evaluation License or a Beta License, use of the Platform solely for Customer’s internal testing and evaluation use, and not for production use or the provision of services to any third party.

“Authorized Users”means Customer’s employees, consultants, contractors, and/or agents: (a) who are authorized by Customer to access and use the Platform on Customer’s behalf, and (b) who have been supplied user identifications and passwords for such purpose by FrenchFry.

“Beta License” means a non-production license granted to Customer with respect to a pre-release version of the Platform for the limited period specified in the Order.

“Customer Data” means all data transmitted by or on behalf of Customer or any Authorized User that is (i) used to train the Customer Model (as defined in Section 12.3) or (ii) that is received and analyzed by the Platform.

“Customer System”means Customer’s internal website(s), servers and other equipment and software used in the conduct of Customer’s business.

“Documentation” means the printed or electronic user instructions and help files made available by FrenchFry for use with the Platform, as may be updated from time to time by FrenchFry.

“Evaluation License” means a non-production license granted to Customer with respect to the Software for the limited period of time specified in the Order.

“Intellectual Property Rights” means all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.

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

“Open Source Software” means open source, public source or freeware software made available under or otherwise subject to any license that (a) is considered an open source software license by the Open Source Initiative or a free software license by the Free Software Foundation, or (b) any license substantially similar to any of the foregoing.

“Order” means the FrenchFry paper ordering documents or online signup forms that are entered into by the parties from time to time, including any mutually acceptable modifications, supplements and addenda thereto. Orders are incorporated herein.

“Platform”means FrenchFry’s Frenchfry.AI platform. For all purposes of these Terms, such services exclude any Open Source Software that may be used to provide the Platform.

“Services” means the Platform, Support Services, and any Ancillary Services.

“Subscription Term”means the subscription period for Customer’s use of the Platform set forth in an Order. Unless otherwise specified in the applicable Order, the Subscription Term for an Evaluation License and a Beta License is limited to 90 days from the Activation Date.

“Support Services” means the support and maintenance services offered by FrenchFry and purchased by Customer pursuant to an Order.

ORDERS; LICENSES; AND RESTRICTIONS

Orders

Subject to the terms and conditions contained in these Terms, Customer may order Services by entering into one or more Orders. Unless otherwise specified in the applicable Order, (a) licenses to use the Platform are purchased as Authorized User subscriptions and may be accessed by no more than the number of Authorized Users specified in the applicable Order, (b) an unlimited number of additional Authorized User subscriptions may be added at any time during the applicable Subscription Term at the same pricing as that for the pre-existing subscriptions thereunder, and (c) the added Authorized User subscriptions shall terminate on the same date as the pre-existing Authorized User subscriptions. Unless otherwise specified in the applicable Order, Authorized User subscriptions are for designated Authorized Users only and cannot be shared or used by more than one Authorized User, but may be reassigned to new Authorized Users replacing former Authorized Users who no longer require ongoing use of the Platform. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by FrenchFry regarding any future functionality or features. If there is any inconsistency between an Order and these Terms, the Order controls.

Access and Use License

Subject to Customer’s compliance with the terms and conditions contained in these Terms, FrenchFry hereby grants to Customer, during the relevant Subscription Term, a limited, non-exclusive, non-transferable right for its Authorized Users to access and use the Platform in accordance with the Documentation, in each case solely for Customer’s Authorized Purposes and not for the benefit of any other person or entity. Customer’s use of the FrenchFry Platform may be subject to certain limitations – for example, certain functionality of the FrenchFry Platform may be limited, as further described in the applicable Order or subscription plan description.

Restrictions

Customer shall not, directly or indirectly, and Customer shall not permit any Authorized User or third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Platform; (b) except as expressly permitted under these Terms, modify, translate, or create derivative works based on any element of the Platform or any related Documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Platform; (d) use the Platform for timesharing purposes or otherwise for the benefit of any person or entity; (e) remove any proprietary notices from the Documentation; (f) use the Platform for any purpose other than its intended purpose; (g) interfere with or disrupt the integrity or performance of the Platform; (h) introduce any Open Source Software into the Platform; or (i) attempt to gain unauthorized access to the Platform, FrenchFry’s related systems or networks, or to the content and data uploaded by other users.

Reservation of Rights

Except as expressly granted in these Terms, there are no other licenses granted to Customer, express, implied or by way of estoppel. All rights not granted in these Terms are reserved by FrenchFry.

THIRD PARTY HOSTING AND SERVICES

Third Party Hosting

FrenchFry may use the services of one or more third parties to deliver any part of the Platform. FrenchFry will pass-through any warranties to the extent that FrenchFry receives any from its then current third-party service provider that it can provide to Customer. Customer agrees to comply with any acceptable use policies and other terms of any third-party service provider that are provided or otherwise made available to Customer from time to time.

Third-Party Services

Certain features and functionalities within the Platform may allow Customer and its Authorized Users to interface or interact with, access and/or use compatible third-party services, products and technology for which Customer and/or its Authorized Users have contracted with the applicable third-party provider (collectively, “Third-Party Services”). FrenchFry does not provide any aspect of such Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Platform or Third-Party Services to the extent caused in whole or in part by the Third-Party Services or any update or upgrade thereto. Customer is solely responsible for maintaining such Third-Party Services and obtaining any associated licenses and consents necessary for Customer to use the Third-Party Services in connection with the Platform. If the provider of any Third-Party Service ceases to make the Third-Party Service available for interoperation with the Platform features on reasonable terms, FrenchFry may cease providing such features without entitling Customer to any refund, credit, or other compensation.

Third Party Access Codes

To the extent that FrenchFry requires that Customer grant FrenchFry authorizations, passwords or other user credentials to a Third-Party Service (“Third Party Access Codes”) to retrieve Customer Data or to enable interoperability with the Platform, Customer shall promptly provide such Third Party Access Codes. FrenchFry shall not share, reassign, divulge or disclose any Third Party Access Codes except to FrenchFry employees or contractors specifically engaged in the performance of the Services.

PASSWORDS; SECURITY

Accounts

Customer and all Authorized Users will be required to have an account with FrenchFry before being permitted to access and use the Platform. To create such accounts, Customer must provide FrenchFry with current, complete and accurate information about all Authorized Users for whom accounts will be created. All the information provided when registering for an account must be accurate, complete and up to date. FrenchFry reserves the right to terminate any account for which the provided information is untrue, inaccurate, incomplete or not current.

Passwords

Customer and its Authorized Users shall be responsible for maintaining the confidentiality of all user logins and passwords and for ensuring that each user login and password is used only by the person to which it was issued. Customer is solely responsible for any and all access and use of the Platform that occurs using any Authorized User’s account. Customer shall not share, and shall restrict its Authorized Users from sharing, passwords. Customer agrees to immediately notify FrenchFry of any unauthorized use of any account or login and password issued to Customer and/or its Authorized Users. FrenchFry shall have no liability for any loss or damage arising from Customer’s or its Authorized Users failure to comply with the terms set forth in this Section.

No Circumvention of Security

Neither Customer nor any Authorized User may circumvent or otherwise interfere with any user authentication or security of the Platform. Customer will immediately notify FrenchFry of any breach, or attempted breach, of security known to Customer.

Security

FrenchFry has implemented administrative, physical and technical safeguards designed to protect the security, confidentiality and integrity of Customer Data. Notwithstanding the foregoing, Customer acknowledges that, notwithstanding any security precautions deployed by FrenchFry, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Platform and Customer Data.

CUSTOMER OBLIGATIONS

Customer System

Customer is responsible for (a) obtaining, deploying and maintaining the Customer System, and all computer hardware, software, modems, routers and other equipment necessary for Customer and its Authorized Users to access and use the Platform via the Internet; (b) contracting with third party ISP, telecommunications and other service providers to access and use the Platform via the Internet; and (c) paying all third party fees and access charges incurred in connection with the foregoing. Except as specifically set forth in these Terms, or an Order, FrenchFry shall not be responsible for supplying any hardware, software or other equipment to Customer under these Terms.

Acceptable Use

Customer shall be solely responsible for its actions and the actions of its Authorized Users while using the Platform. Customer acknowledges and agrees: (a) to abide by all local, state, national, and international laws and regulations applicable to Customer’s use of the Platform, including without limitation those related to the possession or use of any of personal information or technical data; including but not limited to the Controlling the Assault of Non-Solicited Pornography and Marketing Act (“CAN-SPAM”); and the Telephone Consumer Protection Act (“TCPA”); (b) not to transmit or store data on or to the Platform which violates the rights of any individual or entity established in any jurisdiction; (c) not to upload in any way any information or content that contain Malicious Code or data that may damage the operation of the Platform or another’s computer or mobile device; (d) not to upload in any way any data regarding an individual’s financial or economic identity, sexual orientation, religious beliefs, medical or physical identity, including any information comprised of either “Protected Health Information” subject to and defined by the Health Insurance Portability and Accountability Act, or an individual’s first name and last name, or first initial and last name, in combination with any one or more of the following data elements that relate to such individual: Social Security number, driver’s license number or state-issued identification card number, financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to an individual’s financial account; (e) not to interfere or disrupt networks connected to the Platform or interfere with others’ ability to access or use the Platform; (f) not to distribute, promote or transmit to FrenchFry or through the Platform any unlawful, harmful, obscene, pornographic or otherwise objectionable material of any kind or nature; (g) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; and (h) to use the Platform only in accordance with the Documentation. Customer acknowledges and agrees that FrenchFry is neither responsible for nor endorses the contents of any Customer communications made using the Platform or Customer Data. FrenchFry assumes no responsibility for any offensive material contained in any Customer communications or Customer Data, any infringement of third party Intellectual Property Rights arising therefrom or any crime facilitated thereby. FrenchFry may remove any violating content posted or stored using the Platform or transmitted through the Platform, without notice to Customer. Notwithstanding the foregoing, FrenchFry does not guarantee, and does not and is not obligated to verify, authenticate, monitor or edit the Customer Data or any other information or data input into or stored in the Platform for completeness, integrity, quality, accuracy or otherwise. Customer shall be responsible and liable for the completeness, integrity, quality and accuracy of Customer Data transmitted to FrenchFry or the Platform.

Accuracy of Customer’s Contact Information; Email Notices

Customer agrees to provide accurate, current and complete information as necessary for FrenchFry to communicate with Customer from time to time regarding the Services, issue invoices or accept payment, or contact Customer for other account-related purposes. Customer agrees to keep any online account information current and inform FrenchFry of any changes in Customer’s legal business name, address, email address and phone number. Customer agrees to accept emails from FrenchFry at the e-mail addresses specified by it for login purposes. In addition, Customer agrees that FrenchFry may rely and act on all information and instructions provided to FrenchFry by Authorized Users from such e-mail address.

Temporary Suspension

FrenchFry may temporarily suspend Customer’s or its Authorized Users’ access to the FrenchFry Platform in the event that either Customer or any of its Authorized Users is engaged in, or FrenchFry in good faith suspects Customer or any of its Authorized Users is engaged in, any unauthorized conduct (including, but not limited to any violation of these Terms). FrenchFry will attempt to contact Customer prior to or contemporaneously with such suspension; provided, however, that FrenchFry’s exercise of the suspension rights herein shall not be conditioned upon Customer’s receipt of any notification. A suspension may take effect for Customer’s entire account and Customer understands that such suspension would therefore include its Authorized Users’ accounts. Customer agrees that FrenchFry shall not be liable to Customer, Authorized Users, or any third party if FrenchFry exercises its suspension rights as permitted by this Section. Upon determining that Customer has ceased the unauthorized conduct leading to the temporary suspension to FrenchFry’s reasonable satisfaction, FrenchFry shall reinstate Customer’s and its Authorized Users’ access to and use of the Platform. Notwithstanding anything in this Section to the contrary, FrenchFry’s suspension of access to the Platform is in addition to any other remedies that FrenchFry may have under these Terms or otherwise, including but not limited to termination of these Terms for cause. Additionally, if there are repeated incidences of suspension, regardless of the same or different cause and even if the cause or conduct is ultimately cured or corrected, FrenchFry may, in its reasonable discretion, determine that such circumstances, taken together, constitute a material breach.

AVAILABILITY; SUPPORT SERVICES

Availability

Subject to the terms and conditions of these Terms, FrenchFry will use commercially reasonable efforts to make the Platform available with minimal downtime 24 hours a day, 7 days a week; provided, however, that the following are excepted from availability commitments: (a) planned downtime (with regard to which FrenchFry will use commercially reasonable efforts to provide at least forty-eight (48) hours advance notice, and (b) routine maintenance times currently scheduled for every 10:00pm to 04:00am Pacific Time and as otherwise specified by FrenchFry, and (c) any unavailability caused by circumstances of Force Majeure Event described in section 15.8. Certain enhancements to the Platform made generally available at no cost to all subscribing customers during the applicable Subscription Term will be made available to Customer at no additional charge. However, the availability of some new enhancements to the Platform may require the payment of additional fees, and FrenchFry will determine at its sole discretion whether access to any other such new enhancements will require an additional fee. These Terms will apply to, and the Platform includes, any bug fixes, error corrections, new builds, enhancements, updates, upgrades and new modules to the Platform subsequently provided by FrenchFry to Customer hereunder.

Support

FrenchFry makes a variety of Support Services offerings available to its customers and will provide Customer with the level of support to which Customer is entitled based on Customer’s purchase as set forth Customer’s applicable Order.

Evaluation and Beta Licenses

No service level agreement is offered or made in connection with these Terms if the Subscription Term is for an Evaluation License or a Beta License. FrenchFry has no obligation to support or maintain the Platform during the Subscription Term of any Evaluation License or Beta License in any way, correct any errors or deficiencies in the Platform or provide updates, new builds or error corrections.

ANCILLARY SERVICES

FrenchFry shall use commercially reasonable efforts to perform the Ancillary Services as set forth in applicable Orders. Each such Order will include, at a minimum: (a) a description of the Ancillary Services, (b) any work product or other deliverables to be provided to Customer (each a “Deliverable”), (c) the schedule for the provision of Ancillary Services, and (d) the applicable fees and payment terms for such Ancillary Services. Orders that include Ancillary Services may also contain additional terms and conditions that apply to the provision of such Ancillary Services. Such additional terms are incorporated herein by reference. FrenchFry and Customer shall cooperate to enable FrenchFry to perform the Ancillary Services according to the dates of performance and delivery terms set forth in each applicable Order. In addition, Customer shall perform any Customer obligations specified in each Order. In the event the Ancillary Services are not performed in accordance with the terms of the applicable Order, Customer shall notify FrenchFry in writing no later than thirty (30) calendar days after performance of the affected Ancillary Services, Customer’s notice shall specify the basis for non-compliance with the Order and if FrenchFry agrees with the basis for non-compliance, then at FrenchFry’s sole option, FrenchFry shall re-perform the Ancillary Services at no additional charge to Customer or refund to Customer the applicable fees for the affected Deliverable or Ancillary Service. THE FOREGOING CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND FRENCHFRY’S SOLE AND EXCLUSIVE LIABILITY WITH RESPECT TO PERFORMANCE OR NON-PERFORMANCE OF THE ANCILLARY SERVICES.

FEES AND PAYMENT

Fees

Customer agrees to pay all applicable fees using one of the payment methods FrenchFry supports. Except as otherwise specified in these Terms or in an Order, (a) fees are quoted and payable in United States dollars, (b) fees are based on Services and software licenses purchased, regardless of actual usage, (c) payment obligations are non-cancelable and fees paid are non-refundable, and (d) the number of Authorized Users of Subscription Terms purchased cannot be decreased during the relevant Subscription Term shown on the applicable Order(s). All amounts payable under these Terms will be made without setoff or counterclaim, and without any deduction or withholding.

Invoices and Payment

All fees for use of the Platform and Support Services will be invoiced in advance and in accordance with the applicable Order(s). Fees for Ancillary Services will be invoiced as set forth in an applicable Order. Unless otherwise set forth in the applicable Order, Customer agrees to pay all invoiced amounts within thirty (30) calendar days of the invoice date. Customer is responsible for providing complete and accurate billing and contact information to FrenchFry and notifying FrenchFry of any changes to such information. Notwithstanding the foregoing, if you have provided a credit or debit card for payment, that payment method will be charged and, instead of receiving an invoice, you will receive a receipt detailing such payment. By providing a payment method, you expressly authorize us and/or our third party payment processor to charge the applicable fees on said payment method as well as taxes and other charges incurred thereto. You agree that we may charge any unpaid amounts to your provided payment method and/or send you an invoice for such unpaid fees.

Overdue Charges

If FrenchFry does not receive fees by the due date, then at FrenchFry’s discretion, such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

Suspension of Service

If any amounts owed by Customer for the Services are five (5) or more days overdue, FrenchFry may, without limiting FrenchFry’s other rights and remedies, suspend Customer’s and its Authorized Users’ access to the Services until such amounts are paid in full; provided that FrenchFry agrees that it will not exercise its rights under this Section if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.

Taxes

“Taxes” means all taxes, levies, imposts, duties, fines or similar governmental assessments imposed by any jurisdiction, country or any subdivision or authority thereof including, but not limited to federal, state or local sales, use, property, excise, service, transaction, privilege, occupation, gross receipts or similar taxes, in any way connected with these Terms or any instrument, order form or agreement required hereunder, and all interest, penalties or similar liabilities with respect thereto, except such taxes imposed on or measured by a party’s net income. Notwithstanding the foregoing, Taxes shall not include payroll taxes attributable to the compensation paid to workers or employees and each party shall be responsible for its own federal and state payroll tax collection, remittance, reporting and filing obligations. Fees and charges imposed under these Terms or under any order form or similar document ancillary to or referenced by these Terms shall not include Taxes except as otherwise provided herein. Customer shall be responsible for all of such Taxes. If, however, FrenchFry has the legal obligation to pay Taxes and is required or permitted to collect such Taxes for which Customer is responsible under this section, Customer shall promptly pay the Taxes invoiced by FrenchFry unless Customer has furnished FrenchFry with valid tax exemption documentation regarding such Taxes at the execution of these Terms or at the execution of any subsequent instrument, order form or agreement ancillary to or referenced by these Terms. Customer shall comply with all applicable tax laws and regulations. Customer hereby agrees to indemnify FrenchFry for any Taxes and related costs paid or payable by FrenchFry attributable to Taxes that would have been Customer’s responsibility under this Section if invoiced to Customer. Customer shall promptly pay or reimburse FrenchFry for all costs and damages related to any liability incurred by FrenchFry as a result of Customer’s non-compliance or delay with its responsibilities herein. Customer’s obligation under this Section shall survive the termination or expiration of these Terms.

REPRESENTATIONS AND WARRANTIES; DISCLAIMER

Mutual Representations and Warranties

Each party represents, warrants and covenants that: (a) it has the full power and authority to enter into these Terms and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and (b) its acceptance of and performance under these Terms shall not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust.

Disclaimer

EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 9, THE PLATFORM, SUPPORT SERVICES, AND ANCILLARY SERVICES ARE PROVIDED ON AN AS-IS BASIS. CUSTOMER’S USE OF THE PLATFORM, SUPPORT SERVICES, AND ANCILLARY SERVICES IS AT ITS OWN RISK. FRENCHFRY DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA, RESULTS OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE EXPRESS WARRANTIES MADE BY FRENCHFRY IN SECTION 9 ARE FOR THE BENEFIT OF THE CUSTOMER ONLY AND NOT FOR THE BENEFIT OF ANY THIRD PARTY. NO WARRANTIES OF ANY KIND WHATSOEVER ARE MADE FOR CUSTOMER’S BENEFIT DURING THE SUBSCRIPTION TERM OF ANY EVALUATION LICENSE OR BETA LICENSE.

NO AGENT OF FRENCHFRY IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF FRENCHFRY AS SET FORTH HEREIN. FRENCHFRY DOES NOT WARRANT THAT: (A) THE USE OF THE PLATFORM WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY RESULTS, INFORMATION OR OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE SERVICES WILL BE ACCURATE OR MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (E) THE SERVICES WILL BE ERROR-FREE OR THAT ERRORS OR DEFECTS IN THE SERVICES WILL BE CORRECTED; OR (F) THE SERVER(S) THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. FRENCHFRY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS. CUSTOMER ACCEPTS FULL RESPONSIBILITY FOR ANY AND ALL DECISIONS MADE BY CUSTOMER AND ITS AUTHORIZED USERS IN OR AS A RESULT OF USING THE SERVICES.

INDEMNIFICATION

FrenchFry Indemnity

General.During the Term, other than with respect to an Evaluation License or Beta License (for which no indemnification is provided), FrenchFry, at its expense, shall defend Customer and its officers, directors and employees (the “Customer Indemnified Parties”) from and against all actions, proceedings, claims and demands by a third party (a “Third-Party Claim”) alleging that the Platform infringes any copyright or misappropriates any trade secret and shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award by a final judicial judgment) paid to the third party bringing any such Third-Party Claim. FrenchFry’s obligations under this Section are conditioned upon (i) FrenchFry being promptly notified in writing of any claim under this Section, (ii) FrenchFry having the sole and exclusive right to control the defense and settlement of the claim, and (iii) Customer providing all reasonable assistance (at FrenchFry’s expense and reasonable request) in the defense of such claim. In no event shall Customer settle any claim without FrenchFry’s prior written approval. Customer may, at its own expense, engage separate counsel to advise Customer regarding a Claim and to participate in the defense of the claim, subject to FrenchFry’s right to control the defense and settlement.

Mitigation.If any claim which FrenchFry is obligated to defend has occurred, or in FrenchFry’s determination is likely to occur, FrenchFry may, in its sole discretion and at its option and expense (a) obtain for Customer the right to use the Platform, (b) substitute a functionality equivalent, non-infringing replacement for such infringing portions of the Platform, (c) modify the Platform to make it non-infringing and functionally equivalent, or (d) terminate these Terms and refund to Customer any prepaid amounts attributable the period of time between the date Customer was unable to use the Platform due to such claim and the remaining days in the then-current Subscription Term.

Exclusions.Notwithstanding anything to the contrary in these Terms, the foregoing obligations shall not apply with respect to a claim of infringement if such claim arises out of (i) Customer’s use of infringing Customer Data; (ii) use of the Platform in combination with any software, hardware, data, network or system not supplied by FrenchFry where the alleged infringement relates to such combination, (iii) any modification or alteration of the Platform other than by FrenchFry, (iv) Customer’s continued use of the Platform after FrenchFry notifies Customer to discontinue use because of an infringement claim, (v) Customer’s violation of applicable law; and/or (vi) the Customer System.

Sole Remedy.THE FOREGOING STATES THE ENTIRE LIABILITY OF FRENCHFRY WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE PLATFORM OR OTHERWISE, AND CUSTOMER HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES OR OBLIGATIONS OF FRENCHFRY WITH RESPECT THERETO. NO INDEMNITIES OF ANY KIND WHATSOEVER ARE MADE FOR CUSTOMER’S BENEFIT DURING THE TERM OF ANY EVALUATION LICENSE OR BETA LICENSE.

Customer Indemnity

Customer shall defend FrenchFry and its affiliates, licensors and their respective officers, directors and employees (“FrenchFry Indemnified Parties”) from and against any and all Third-Party Claims which arise out of or relate to: (a) a claim or threat that the Customer Data or Customer System (and the exercise by FrenchFry of the rights granted herein with respect thereto) infringes, misappropriates or violates any third party’s Intellectual Property Rights; (b) Customer’s use or alleged use of the Platform other than as permitted under these Terms; or (c) arising from the occurrence of any of the exclusions set forth in Section 10.1(c). Customer shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award by a final judicial judgment) paid to the third party bringing any such Third-Party Claim. Customer’s obligations under this Section are conditioned upon (x) Customer being promptly notified in writing of any claim under this Section, (y) Customer having the sole and exclusive right to control the defense and settlement of the claim, and (z) FrenchFry providing all reasonable assistance (at Customer’s expense and reasonable request) in the defense of such claim. In no event shall FrenchFry settle any claim without Customer’s prior written approval. FrenchFry may, at its own expense, engage separate counsel to advise FrenchFry regarding a Third-Party Claim and to participate in the defense of the claim, subject to Customer’s right to control the defense and settlement.

CONFIDENTIALITY

Confidential Information

“Confidential Information” means any and all non-public technical and non-technical information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in any form or medium, whether oral, written, graphical or electronic, pursuant to these Terms, that is marked confidential and proprietary, or that the Disclosing Party identifies as confidential and proprietary, or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as confidential and proprietary information, including but not limited to: (a) techniques, sketches, drawings, models, inventions (whether or not patented or patentable), know-how, processes, apparatus, formulae, equipment, algorithms, software programs, software source documents, and other creative works (whether or not copyrighted or copyrightable); (b) information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information; (c) proprietary or confidential information of any third party who may disclose such information to Disclosing Party or Receiving Party in the course of Disclosing Party’s business; and (d) the terms of these Terms and any Order. Confidential Information of FrenchFry shall include the Platform, the pricing, and the terms and conditions of these Terms. Confidential Information also includes all summaries and abstracts of Confidential Information.

Non-Disclosure

Each party acknowledges that in the course of the performance of these Terms, it may obtain the Confidential Information of the other party. The Receiving Party shall, at all times, both during the Term and thereafter, keep in confidence and trust all of the Disclosing Party’s Confidential Information received by it. The Receiving Party shall not use the Confidential Information of the Disclosing Party other than as necessary to fulfill the Receiving Party’s obligations or to exercise the Receiving Party’s rights under these Terms. Each party agrees to secure and protect the other party’s Confidential Information with the same degree of care and in a manner consistent with the maintenance of such party’s own Confidential Information (but in no event less than reasonable care), and to take appropriate action by instruction or agreement with its employees or other agents who are permitted access to the other party’s Confidential Information to satisfy its obligations under this Section. The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees and agents who need access to such Confidential Information in order to effect the intent of these Terms and who are subject to confidentiality obligations at least as stringent as the obligations set forth in these Terms.

Exceptions to Confidential Information

The obligations set forth in Non-Disclosure shall not apply to the extent that Confidential Information includes information which: (a) was known by the Receiving Party prior to receipt from the Disclosing Party either itself or through receipt directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) was developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of these Terms or any obligation of confidentiality by the Receiving Party. Nothing in these Terms shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (x) assert the confidential nature of the Confidential Information to the agency; (y) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (z) cooperate fully with the Disclosing Party in protecting against any such disclosure and in obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.

Injunctive Relief

The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.

PROPRIETARY RIGHTS

Platform

As between FrenchFry and Customer, all right, title and interest in the Platform, all software, models and algorithms used to provide the Platform and any other FrenchFry materials furnished or made available hereunder, and all modifications, enhancements and derivative works thereof, and all suggestions, ideas and feedback proposed by Customer regarding the Platform, including all copyright rights, patent rights and other Intellectual Property Rights in each of the foregoing, belong to and are retained solely by FrenchFry or FrenchFry’s licensors and providers, as applicable. If the Subscription Term is for an Evaluation License or Beta License, Customer shall periodically (and, in any case, not less than once every thirty (30) days or more frequently as provided in the Order) provide FrenchFry with written feedback regarding Customer’s use of the Platform, the functionality of the Platform, any bugs, errors or deficiencies that Customer encounters regarding the operation and functionality of the Platform and any suggestions that Customer may have regarding improvement of such operation and functionality (“Feedback”). Customer hereby does and will irrevocably assign to FrenchFry all Feedback and all Intellectual Property Rights in the Feedback.

Customer Data

As between FrenchFry and Customer, all right, title and interest in the Customer Data and all Intellectual Property Rights therein and thereto, belong to and are retained solely by Customer. Customer hereby grants to FrenchFry a limited, non-exclusive, royalty-free, worldwide license to use the Customer Data and perform all acts with respect to the Customer Data as may be necessary for FrenchFry to provide the Services as described herein. As between FrenchFry and Customer, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data.

Models and Customer Results

The instance of the AI model utilized by Customer and its Authorized Users (the “Customer Model”) will be trained separately from the models used by other users of the Platform and will be fine-tuned using the Customer Data and Customer Results (as defined below). FrenchFry will not use Customer Data to fine-tune any other customer’s models. FrenchFry shall not use the Customer Model other than to provide the Services to Customer and will delete the Customer Model within thirty (30) days of the expiration or termination of these Terms. To the extent FrenchFry obtains any Intellectual Property Rights in or to any output generated and returned to Customer through the use of the Customer Model (“Customer Results”), FrenchFry hereby assigns and agrees to assign to Customer all right, title and interest in and to such Customer Results. Customer understands and agrees that, notwithstanding the foregoing, due to the nature of machine learning, output generated and returned to users of the Platform may not be unique across users and the Platform may generate the same or similar output for third parties. Customer understands and agrees that output generated for other users through the use of models other than the Customer Model is not considered Customer Results, regardless of any similarity to Customer Results.

Aggregated Statistics

Notwithstanding anything else in these Terms or otherwise, FrenchFry may monitor Customer’s use of the Services and use data and information related to such use in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Platform (“Aggregated Statistics”). As between FrenchFry and Customer, all right, title and interest in the Aggregated Statistics and all Intellectual Property Rights therein, belong to and are retained solely by FrenchFry. Customer acknowledges that FrenchFry will be compiling Aggregated Statistics based on Customer’s and other users’ use of the Services and Customer agrees that FrenchFry may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Customer or Customer’s Confidential Information.

FrenchFry Developments

All inventions, works of authorship and developments conceived, created, written, or generated by or on behalf of FrenchFry, whether solely or jointly, including without limitation, in connection with FrenchFry’s performance of the Ancillary Services hereunder, including (unless otherwise expressly set forth in an applicable Order) all Deliverables (“FrenchFry Developments”) and all Intellectual Property Rights therein, shall be the sole and exclusive property of FrenchFry. Customer agrees that, except for Customer Confidential Information, to the extent that the ownership of any contribution by Customer or its employees to the creation of the FrenchFry Developments is not, by operation of law or otherwise, vested in FrenchFry, Customer hereby assigns and agrees to assign to FrenchFry all right, title and interest in and to such FrenchFry Developments, including without limitation all the Intellectual Property Rights therein, without the necessity of any further consideration.

Further Assurances

To the extent any of the rights, title and interest in and to Feedback or FrenchFry Developments or Intellectual Property Rights therein cannot be assigned by Customer to FrenchFry, Customer hereby grants to FrenchFry an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to fully use, practice and exploit those non-assignable rights, title and interest. If the foregoing assignment and license are not enforceable, Customer agrees to waive and never assert against FrenchFry those non-assignable and non-licensable rights, title and interest. Customer agrees to execute any documents or take any actions as may reasonably be necessary, or as FrenchFry may reasonably request, to perfect ownership of the Feedback and FrenchFry Developments. If Customer is unable or unwilling to execute any such document or take any such action, FrenchFry may execute such document and take such action on Customer’s behalf as Customer’s agent and attorney-in-fact. The foregoing appointment is deemed a power coupled with an interest and is irrevocable.

License to Deliverables

Subject to Customer’s compliance with these Terms, FrenchFry hereby grants Customer a limited, non-exclusive, non-transferable license during the Subscription Term to use the Deliverables solely in connection with Customer’s authorized use of the Platform. Notwithstanding any other provision of these Terms: (i) nothing herein shall be construed to assign or transfer any Intellectual Property Rights in the proprietary tools, source code samples, templates, libraries, know-how, techniques and expertise (“Tools”) used by FrenchFry to develop the Deliverables, and to the extent such Tools are delivered with or as part of the Deliverables, they are licensed, not assigned, to Customer, on the same terms as the Deliverables; and (ii) the term “Deliverables” shall not include the Tools.

LIMITATION OF LIABILITY

No Consequential Damages

NEITHER FRENCHFRY NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, EVEN IF FRENCHFRY OR ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE PLATFORM, ANCILLARY SERVICES, SUPPORT SERVICES, OR CUSTOMER RESULTS. FRENCHFRY WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.

Limits on Liability

NEITHER FRENCHFRY NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN AN AMOUNT EQUAL TO THE LESSER OF (A) THE AMOUNTS PAID BY CUSTOMER TO FRENCHFRY UNDER THESE TERMS DURING THE PERIOD OF SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED, AND (B) THE AMOUNT OF FEES PAID BY CUSTOMER IN A SINGLE SUBSCRIPTION TERM.

Essential Purpose

CUSTOMER ACKNOWLEDGES THAT THE TERMS IN THIS SECTION (LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.

TERM AND TERMINATION

Term

The term of these Terms commence on the Effective Date and continues until the expiration or termination of all Subscription Terms, unless earlier terminated as provided in these Terms. Except as otherwise specified in the applicable Order, Subscription Terms (other than for licenses for Evaluation Licenses and Beta Licenses) for all Authorized Users shall automatically renew for additional periods equal to the expiring Subscription Term unless one party gives the other written notice of non-renewal at least sixty (60) days prior to the expiration of the then current Subscription Term. The per-unit pricing during any automatic renewal term shall be the same as that during the immediately prior term unless FrenchFry has given Customer written notice of a pricing increase at least thirty (30) days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Licenses for Evaluation Licenses and Beta Licenses will terminate at the end of their respective Subscription Term unless the parties enter into an Order for a new Subscription Term.

Termination for Cause

A party may terminate these Terms and any Order (and all Subscription Terms) upon written notice to the other party in the event the other party (a) files a petition for bankruptcy or has a petition for bankruptcy filed against it that is not dismissed within sixty (60) days after filing or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or (b) commits a material breach of any provision of these Terms and does not remedy such breach within thirty (30) days after receipt of notice from the other party or such other period as the parties may agree. Upon any termination for cause by Customer, FrenchFry shall refund Customer any prepaid fees for the remainder of the terminated Subscription Terms after the effective termination date. Upon any termination for cause by FrenchFry, Customer shall pay any unpaid fees covering the remainder of the term of all Orders after the effective date of termination. In no event shall any termination relieve Customer of the obligation to pay any fees payable to FrenchFry for the period prior to the effective date of termination.

Termination for Convenience

At any time after the initial Term, Customer shall have the right to terminate any Subscription Term for convenience on at least thirty (30) days prior written notice to FrenchFry; provided, however, that under no circumstances shall Customer be entitled to any refund of any Fees for such terminated Subscription Term. FrenchFry shall have the right to terminate any Subscription Term for convenience on at least thirty (30) days prior written notice to Customer. If FrenchFry exercises such termination right, FrenchFry shall refund to customer the amount of any pre-paid fees for the terminated Subscription Term.

Effects of Termination

Upon expiration or termination of these Terms, (a) Customer’s use of and access to the Platform and FrenchFry’s performance of all Support Services and Ancillary Services shall cease; (b) all Orders and Statements of Work shall terminate; and (c) all fees and other amounts owed to FrenchFry shall be immediately due and payable by Customer, including without limitation, all fees incurred under any outstanding Ancillary Services Order up through the date of termination for any Ancillary Services completed and a pro-rated portion of the fees incurred for any partially completed Ancillary Services. Upon Customer’s request made within thirty (30) days after the effective date of applicable termination or expiration, FrenchFry shall make any Customer Data stored on the Platform available for download by Customer in the format in which it is stored in the Platform. After such 30-day period, FrenchFry shall have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control. In addition, within ten (10) days of the effective date of termination each Receiving Party shall: (a) return to the Disclosing Party, or at the Disclosing Party’s option, the Receiving Party shall destroy, all items of Confidential Information (other than the Customer Data) then in the Receiving Party’s possession or control, including any copies, extracts or portions thereof, and (b) upon request shall certify in writing to Disclosing Party that it has complied with the foregoing.

Changes to Subscription Plans

From time to time FrenchFry may cease to offer certain subscription plans and/or license types at any time and without prior notice. FrenchFry will support such legacy plans until the end of the Subscription Term in which such plan is deprecated.

Survival

This Section and Sections 1, 2.3, 2.4, 8, 9, 10, 11, 12, 13, 14.4, 15 shall survive any termination or expiration of these Terms.

MISCELLANEOUS

Notices

All notices which any party to these Terms may be required or may wish to give may be given by addressing them to the other party at the addresses set forth below (or at such other addresses as may be designated by written notices given in the manner designated herein) by (a) personal delivery, (b) sending such notices by commercial overnight courier with written verification of actual receipt, (c) by email, effective (A) when the sender receives an automated message from the recipient confirming delivery or (B) one hour after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered, whichever happens first, but if the delivery or receipt is on a day which is not a business day or is after 5:00 pm (addressee’s time) it is deemed to be received at 9:00 am on the following business day, or (d) sending them by registered or certified mail. If so mailed or otherwise delivered, such notices shall be deemed and presumed to have been given on the earlier of the date of actual receipt or three (3) days after mailing or authorized form of delivery. All communications and notices to be made or given pursuant to these Terms shall be in the English language.

Governing Law

These Terms and the rights and obligations of the parties to and under these Terms shall be governed by and construed under the laws of the United States and the State of California as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms. The parties further agree to waive and opt-out of any application of the Uniform Computer Information Transactions Act (UCITA), or any version thereof, adopted by any state of the United States in any form. Any dispute arising out of or in connection with these Terms, including but not limited to any question regarding its existence, interpretation, validity, performance, or termination, or any dispute between the parties arising from the parties’ relationship created by these Terms, shall be referred to and finally resolved by arbitration administered by the American Arbitration Association under its rules. The number of arbitrators shall be one (1). The parties shall endeavor to agree upon the sole arbitrator and jointly nominate the arbitrator. If the parties cannot agree upon the sole arbitrator within a time prescribed by AAA, the parties shall request the AAA to propose five (5) arbitrators and each party shall rank the proposed arbitrators. The AAA shall appoint an arbitrator from the list of five (5), based upon the parties’ rankings. The seat, or legal place of arbitration shall be California, United States. Notwithstanding the foregoing, FrenchFry has the right to pursue equitable relief in the state and federal courts located in California, and Customer agrees to the exclusive jurisdiction and venue of such courts.

Publicity

FrenchFry has the right to reference and use Customer’s name and trademarks and disclose the nature of the Services provided hereunder in each case in FrenchFry business development and marketing efforts, including without limitation FrenchFry’s web site.

No Solicitation of Employees

Customer agrees that, so long as the Subscription Term remains in effect, and for a period of one (1) year following the last Subscription Term hereunder to terminate or expire, it will not directly solicit for employment the employees of FrenchFry without FrenchFry’s prior written consent; provided, however, that the foregoing prohibition shall not preclude the hiring by Customer of any individual who responds to a general solicitation or advertisement, whether in print or electronic form, or job postings on social networking sites.

U.S. Government Customers

If Customer is a Federal Government entity, FrenchFry provides the Platform, including related software and technology, for ultimate Federal Government end use solely in accordance with the following: Government technical data rights include only those rights customarily provided to the public with a commercial item or process and Government software rights related to the Platform include only those rights customarily provided to the public, as defined in these Terms. The technical data rights and customary commercial software 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 greater rights are needed, a mutually acceptable written addendum specifically conveying such rights must be included in these Terms.

Export

The Platform utilizes software and technology that may be subject to United States and foreign export controls. Customer acknowledges and agrees that the Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Platform, Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Platform may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Customer agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. FrenchFry and its licensors make no representation that the Platform is appropriate or available for use in other locations. Any diversion of the Customer Data contrary to law is prohibited. None of the Customer Data, nor any information acquired through the use of the Platform, is or will be used for nuclear activities, chemical or biological weapons, or missile projects.

Anti-Corruption; OFAC

Customer has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of FrenchFry in connection with these Terms. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If Customer learns of any violation of the above restriction, it will use reasonable efforts to promptly notify FrenchFry. Customer represents and warrants to FrenchFry that none of (a) Customer, (b) each person or entity owning an interest in any of them nor (c) their respective personnel are (x) currently identified on the Specially Designated Nationals and Blocked Persons List maintained by the Office of Foreign Assets Control, U.S. Department of the Treasury (“OFAC”) nor on any other similar list maintained by OFAC pursuant to any authorizing statute, executive order or regulation, and (y) a person or entity with whom a citizen of the United States is prohibited to engage in transactions by any trade embargo, economic sanction, or other prohibition of United States law, regulation, or Executive Order of the President of the United States.

General

Customer shall not assign its rights or delegate the performance of any of its duties or obligations hereunder, whether by merger, acquisition, sale of assets, operation of law, or otherwise, without the prior written consent of FrenchFry. Any purported assignment in violation of the preceding sentence is null and void. Subject to the foregoing, these Terms shall be binding upon, and inure to the benefit of, the successors and assigns of the parties thereto. There are no third-party beneficiaries to these Terms. Except as otherwise specified in these Terms, these Terms may be amended or supplemented only by a writing that refers explicitly to these Terms and that is signed on behalf of both parties. No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted. If any of these Terms is found invalid or unenforceable that term will be enforced to the maximum extent permitted by law and the remainder of the Terms will remain in full force. The parties are independent contractors and nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. These Terms, including all applicable Orders, constitute the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral. Except for your payment obligations hereunder, neither party shall be liable to the other party or any third party for failure or delay in performing its obligations under these Terms when such failure or delay is due to any cause beyond the control of the party concerned, including, without limitation, acts of God, governmental orders or restrictions, fire, or flood (a “Force Majeure Event”), provided that upon cessation of such events such party shall thereupon promptly perform or complete the performance of its obligations hereunder.