ONLINE MASTER SERVICES AGREEMENT

1DEFINITIONS

“Acceptable Use Policy” has the meaning set out in Section 3.2.

“Account” means the account that Customer creates with Prime Intellect, under the Terms of Service, to access the Platform and place Orders.

“Affiliate” of a Party means any entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with, such Party. For purposes of this definition, “control” of an entity means the direct or indirect ownership or control of more than 50% of the voting interests of such entity.

“BAA” means a business associate agreement, as that term is used under the Health Insurance Portability and Accountability Act of 1996 and its implementing regulations (“HIPAA”), executed by the Parties to govern Prime Intellect’s processing of protected health information (“PHI”) as defined under HIPAA on Customer’s behalf.

“Business Day” means any day other than (a) a Saturday or Sunday or (b) a day on which banking institutions located in New York, New York are permitted or required by law, executive order or governmental decree to remain closed.

“BYOC Deployment” has the meaning set out in Section 4.6.

“Checkout” means the online ordering process made available by Prime Intellect on the Website or the Platform through which Customer may select, configure and purchase Services.

“Claims” has the meaning set out in Section 11.1.

“Compute Services” means Prime Intellect’s GPU and CPU compute capacity and related high-performance networking, storage and cloud infrastructure services, made available on an on-demand, spot, reserved or other basis, as further described in the applicable Order.

“Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally, in writing or in any other form, that is either marked or designated as confidential at the time of disclosure or that a reasonable person should consider confidential given the nature of the information and the circumstances under which it is disclosed. Prime Intellect’s Confidential Information includes the Prime Intellect Property and any non-public pricing or other commercial terms offered to Customer. Customer’s Confidential Information includes the Customer Property and the Output. Confidential Information does not include any information that the Receiving Party can show: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party (and, for clarity, the published text of this Agreement, the Service Terms and the Terms of Service is not Confidential Information); (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without use of or reference to any Confidential Information of the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

“Customer Indemnified Parties” has the meaning set out in Section 11.1.

“Customer Property” means (i) all data and content that Customer or any User provides to Prime Intellect, uploads to or processes on the Platform, or otherwise makes available in connection with the Services, and (ii) all data, code, models, environments, specifications, documentation, credentials and other materials that Customer provides or makes available to Prime Intellect, or to which Prime Intellect is given access, in connection with any Professional Services, in each case excluding the Prime Intellect Property.

“Customer-Provided Products” means all software, products or services installed or run by Customer or any User on the Platform or in connection with the Services, including software, products and services that are designed to interoperate with the Services (for example, third-party cloud services purchased by Customer from the applicable third party, independent of this Agreement).

“Customer Systems” means Customer’s computers, networks, virtual machines, cloud accounts, repositories, tool environments and other systems to which Prime Intellect or its Personnel are given access in connection with the Services.

“Data Incident” means any breach of Prime Intellect’s security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or unauthorized access to, Customer Property in Prime Intellect’s possession or control. For clarity, Data Incident does not include unsuccessful attempts or activities that do not compromise the security of Customer Property (such as unsuccessful login attempts, pings, port scans, denial of service attacks or other network attacks on firewalls or networked systems).

“Deliverables” means the work product that Prime Intellect is expressly required by an Order to deliver to Customer in the course of performing Professional Services. Prime Intellect Property described in or incorporated into a Deliverable remains Prime Intellect Property.

“Documentation” means all documentation and other instructional material regarding the use of the Services that is generally made available by Prime Intellect to its customer base.

“Downtime” has the meaning given in the service level agreement set forth in the applicable Order, if any.

“DPA” means Prime Intellect’s Data Processing Addendum available at primeintellect.ai/dpa, as updated from time to time in accordance with its terms, governing Prime Intellect’s processing of Personal Data on Customer’s behalf pursuant to applicable data protection laws (including, where applicable, the General Data Protection Regulation (EU) 2016/679 (“GDPR”), the UK GDPR, or the California Consumer Privacy Act of 2018 (as amended by the California Privacy Rights Act of 2020) (“CCPA”)).

“Environments Hub” means Prime Intellect’s catalogue of packaged training and evaluation environments made available through the Platform.

“Feedback” has the meaning set out in Section 7.5.

“Fees” has the meaning set out in Section 6.1.

“Hourly Rate” has the meaning set out in Section 6.2.

“Inference Services” means Prime Intellect’s model inference services, including serverless inference on shared capacity, dedicated inference on capacity reserved for Customer, and hosting and serving of fine-tuned models and adapters, as further described in the applicable Order.

“Initial Order Term” has the meaning set out in Section 13.2.

“Lab Services” means Prime Intellect’s environment, evaluation and training services made available through the Platform, including the Environments Hub, hosted evaluations and hosted training, as further described in the applicable Order.

“Managed Services” means managed operational services provided by Prime Intellect, which may include infrastructure management, platform operations, model deployment and hosting, monitoring and related managed services, as further described in the applicable Order.

“Order” means each order for Services that Customer submits through Checkout and that Prime Intellect accepts in accordance with Section 2.1, as reflected in the Order Confirmation, including the Order Details and any Service Terms accepted with it.

“Order Confirmation” means the written confirmation of an Order that Prime Intellect issues to Customer by email or through the Platform.

“Order Details” means the commercial terms of an Order as presented at Checkout and set out in the Order Confirmation, including the Services purchased, quantities, configuration, location, start date, Order Term, Fees, billing frequency and payment method.

“Order Term” has the meaning set out in Section 13.2.

“Output” has the meaning set out in Section 7.1.

“Personal Data” has the meaning set out in Section 8.4.

“Personnel” means the employees and permitted contractors of Prime Intellect that Prime Intellect assigns to perform Professional Services.

“Platform” means Prime Intellect’s cloud-based AI development platform, including its compute environment, inference, sandbox and lab offerings, developer tooling, APIs and related services, as modified, enhanced, updated and upgraded from time to time.

“Platform Services” means access to and use of the Platform, including the Compute Services, Inference Services, Sandbox Services and Lab Services, and any Managed Services, in each case as specified in an Order.

“Prime Intellect Indemnified Parties” has the meaning set out in Section 11.2.

“Prime Intellect Property” means (i) the Platform and the Services; (ii) the Usage Information; (iii) the Documentation; (iv) Prime Intellect’s software, tools, training and inference stacks, sandbox and runtime infrastructure, environment, verifier and evaluation frameworks, the Environments Hub, and Prime Intellect’s pre-existing datasets and environments; (v) all methods, techniques, algorithms, processes, recipes, reward-design approaches, hyperparameter and tuning strategies, data-generation pipelines, methodologies, templates and know-how used by or on behalf of Prime Intellect in providing the Services, whether or not developed or refined in performing the Services and whether or not described or disclosed in any Deliverable, report or other communication; (vi) all other data, content, materials, facilities, networks, systems and software supplied by Prime Intellect or its contractors in connection with, or used by Prime Intellect or its contractors in providing, the Services; and (vii) all modifications, derivative works, improvements, enhancements, updates and upgrades to or of any of the foregoing, in each case excluding the Customer Property and excluding any Deliverable owned by Customer under the applicable Service Terms (but not any Prime Intellect Property described in or incorporated into such Deliverable).

“Privacy Laws” has the meaning set out in Section 8.4.

“Professional Services” means professional services performed by Prime Intellect’s Personnel for Customer under an Order, including environment quality assurance, model post-training and fine-tuning, evaluation, environment development and forward-deployed engineering services, as further described in the applicable Order.

“Renewal Order Term” has the meaning set out in Section 13.2.

“Sandbox Services” means Prime Intellect’s isolated, on-demand code-execution environments and related features, including network access controls, secret injection and the tunnel service described in Section 4.3, as further described in the applicable Order.

“Service Terms” means terms specific to a type of Services, in the form of a service addendum published by Prime Intellect, that are presented to Customer at Checkout and accepted by Customer as part of an Order.

“Services” means the Platform Services, the Professional Services and any other services that Prime Intellect makes available to Customer under an Order. The categories of Services that Prime Intellect offers are described in Exhibit B.

“Signed Agreement” has the meaning set out in Section 2.5.

“Sub-processor” means any third-party data processor engaged by Prime Intellect that receives Customer Property from Prime Intellect for processing on behalf of Customer in accordance with Customer’s instructions (as communicated by Prime Intellect) and the terms of its written subcontract with Prime Intellect, including third-party data centers and development, production, maintenance, financing and customer support providers in connection with any of the Services.

“Taxes” has the meaning set out in Section 6.8.

“Term” has the meaning set out in Section 13.1.

“Terms of Service” means Prime Intellect’s Terms of Service available at primeintellect.ai/terms-of-service, as updated from time to time in accordance with their terms.

“Third-Party Materials” means software, models (including open-weight base models and teacher models, and their outputs), datasets, environments and other materials that are owned by a third party and made available under that third party’s license or terms of use, including open-source software and any third-party software preinstalled by Prime Intellect for Customer’s use, but excluding Customer-Provided Products.

“Usage Information” has the meaning set out in Section 8.8.

“User” means any person that accesses Customer’s Account or otherwise accesses or uses the Services in connection with Customer’s Account.

“Website” means Prime Intellect’s website located at primeintellect.ai and its subdomains.

2ORDERS; RELATIONSHIP TO OTHER TERMS

2.1 Placing Orders. Customer may purchase Services by submitting an order through Checkout. Each order that Customer submits is an offer to purchase the Services described in it, on the terms of this Agreement and the Service Terms presented with it. An order becomes a binding Order only when Prime Intellect accepts it, which Prime Intellect may do by issuing an Order Confirmation or by commencing provision of the ordered Services, whichever occurs first. Prime Intellect may decline or cancel any order before acceptance, without liability, for any reason, including capacity constraints, the results of identity, credit, sanctions or export control screening, or suspected fraud, and will refund any amount charged for an order that it declines or cancels. No order is binding on Prime Intellect until accepted under this Section 2.1.

2.2 Order Details; Errors. The Order Details for each Order are as presented at Checkout and set out in the Order Confirmation. If Customer believes that an Order Confirmation does not accurately reflect its order, Customer must notify Prime Intellect within five (5) Business Days after receiving it. If the price or any other material term of an order was displayed at Checkout in error, Prime Intellect may, before the affected Services begin, cancel the Order or offer Customer the corrected terms, and if Customer does not accept the corrected terms, Prime Intellect will cancel the Order and refund any amount charged for it.

2.3 Service Terms. Each Order is subject to, and governed by, this Agreement and the Service Terms accepted with it. Service Terms apply only to the Services under the Order with which they are accepted, or to which they are expressly applied, and do not amend this Agreement with respect to any other Order. Where Service Terms are presented in a combined service addendum and order form, the order form portion is part of the Order Details.

2.4 Terms of Service; Website Terms. Customer’s creation and use of its Account, and its access to and use of any Platform services that it does not purchase under an Order (including pay-as-you-go usage and prepaid credits), remain governed by the Terms of Service. With respect to the Services purchased under an Order, this Agreement and the applicable Service Terms constitute the terms specific to those Services that are presented for acceptance at purchase for purposes of the Terms of Service, and they govern and supersede the Terms of Service in the event of any conflict or inconsistency. Prime Intellect’s website terms of use, which govern access to the Website as a visitor, do not apply to any Order or to the Services purchased under it.

2.5 Signed Agreements Control. If Customer has entered into a separate written agreement with Prime Intellect that is signed by authorized representatives of both Parties and that governs the Services in question (such as a Master Services Agreement and an order form executed by the Parties) (a “Signed Agreement”), the Signed Agreement governs those Services and supersedes this Agreement with respect to them, even if a User later accepts this Agreement at Checkout or places an order through Checkout for Services within the scope of the Signed Agreement, unless the Signed Agreement expressly provides otherwise.

2.6 Affiliates. An Affiliate of Customer may purchase Services under this Agreement only by placing Orders through its own Account, in which case that Affiliate accepts this Agreement for itself and is “Customer” for purposes of those Orders.

3SERVICES

3.1 Provision of Services. Subject to Customer’s compliance with the terms and conditions of this Agreement, Prime Intellect will provide the Services set out in each Order. With respect to Platform Services, Prime Intellect hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive right during the applicable Order Term to access and use the Platform Services for Customer’s internal business purposes (including, where permitted by the applicable Order, to power Customer’s own products and services) in accordance with this Agreement. Unless otherwise specified in the applicable Order, Prime Intellect is not required to modify, enhance, update or upgrade the Platform. The Platform may be modified, enhanced, updated or upgraded from time to time in order to improve security, reliability, scalability and operational integrity of the Services, including through virtualization technologies.

3.2 Acceptable Use Policy. Customer will at all times comply with, and ensure that all of its Users comply with: (i) the Acceptable Use Policy set forth in Exhibit A (the “Acceptable Use Policy”); and (ii) any other reasonable policies or procedures provided by Prime Intellect to Customer in writing from time to time. Prime Intellect may update the Acceptable Use Policy and such policies and procedures from time to time upon notice to Customer in accordance with Section 14.

3.3 Account. Services can only be purchased and accessed through an Account. Any information provided by Customer to set up its Account or to place an Order will be subject to authentication and screening by Prime Intellect, and Customer will be responsible for ensuring that all such information, including Customer’s legal name, address and email address for notices, is current and accurate at all times. Customer shall not disclose or otherwise share any account authentication information with any third party without Prime Intellect’s prior written consent in each instance. Customer is solely responsible for ensuring the security and confidentiality of all account authentication information and shall utilize proper security protocols, such as setting strong passwords and access control mechanisms, safeguarding access to all logins and passwords and verifying the trustworthiness of persons who are entrusted with access to such information. Customer must notify Prime Intellect immediately of any actual or reasonably suspected unauthorized access of its Account or its account authentication information upon becoming aware of it.

3.4 Responsibility for Users. Customer is responsible for its Users’ compliance with the terms and conditions of this Agreement and any breach of this Agreement by a User will be deemed to be a breach of this Agreement by Customer. Without limiting the generality of the foregoing, Customer is solely responsible for managing which Users have access to Customer Property and authority to place Orders, for any actions taken by such Users with respect to the Account and Customer Property, for all Orders placed through its Account, and for all activities that are taken through use of its Account.

3.5 Support Services. Prime Intellect will provide support for the Platform Services at the support level set out in the applicable Order or Service Terms or, if none is specified, through the Documentation and by email at support@primeintellect.ai on a commercially reasonable efforts basis. Support for Professional Services will be provided through the communication channels and cadence set out in the applicable Order.

3.6 Connection. A high-speed Internet connection is required for proper transmission of the Platform Services. Customer is responsible for: (i) procuring and maintaining the network connections that connect Customer’s network to the Services, including “browser” software that supports protocols used by Prime Intellect and Secure Socket Layer (SSL) protocol or other protocols accepted by Prime Intellect; and (ii) following procedures identified by Prime Intellect for accessing services that support such protocols. Prime Intellect is not responsible for notifying Customer or its Users of any upgrades, updates, fixes or enhancements to any such software or for any compromise of data, including Customer Property, transmitted across computer networks or telecommunications facilities (including the Internet) which are not owned or controlled by Prime Intellect. Prime Intellect assumes no responsibility for the reliability or performance of any such connections used by Customer or any User to access the Services.

3.7 Communications. Prime Intellect may rely and act on all information and instructions provided by Users and by Customer’s designated representatives, including any order submitted through Customer’s Account.

3.8 Monitoring; Modifications to the Services. Prime Intellect may monitor the use of the Platform Services and, solely with respect to monitoring activity conducted by Prime Intellect’s endpoint detection and response (“EDR”) tool, Customer Property, to: (i) respond to any applicable law or regulation or any legal process or request from a governmental or regulatory authority (in which case Prime Intellect shall provide prompt notice to Customer where permitted by law or regulation and use its reasonable efforts, at Customer’s expense, to assist Customer in seeking a protective order or another appropriate remedy, as may be applicable); (ii) verify compliance with this Agreement, including investigation of potential violations hereof; (iii) detect, prevent or otherwise address fraud, security or technical issues; (iv) respond to User support requests; or (v) protect the rights, property or safety of Prime Intellect, Prime Intellect’s users or contractors and the public. Prime Intellect may modify the Services and Documentation from time to time upon notice to Customer, and may modify the data center from which the Services are performed, so long as, in each case, Prime Intellect will not materially reduce the functionality of the Services provided to Customer during the then-current Order Term and will comply with any location commitment expressly set out in the applicable Order.

3.9 Suspensions. Prime Intellect may immediately suspend, throttle or terminate access to the Services, and will provide prompt written notice thereof to Customer, including reasonable detail of the basis therefor, if:

(a) Prime Intellect reasonably believes that Customer or any User is in material breach of this Agreement, including the Acceptable Use Policy;

(b) Prime Intellect in good faith suspects that any third party has gained unauthorized access to the Services using a credential issued by Prime Intellect to Customer or its Users;

(c) Prime Intellect is required by applicable law or regulation, legal process or any governmental or regulatory authority to suspend the Services;

(d) Prime Intellect reasonably believes such action is necessary to prevent or limit any suspension, termination or breach of any third-party contract or service that Prime Intellect uses to provide the Services;

(e) payment is overdue or a charge fails as described in Section 6.4; or

(f) during planned maintenance of which Prime Intellect has given Customer at least seven (7) days’ advance notice, or emergency maintenance, of which Prime Intellect will give notice as soon as reasonably practicable.

Prime Intellect will limit any suspension in scope and duration to what is reasonably necessary and will restore the affected Services promptly once the cause is resolved. Other than in connection with a suspension, throttling or termination pursuant to Section 3.9(d), Prime Intellect shall not be liable to Customer, its Users or any other third party for any such modification, suspension, termination or discontinuation of Customer’s rights to access and use the Services, and Customer shall remain liable for the payment of all Fees. If the suspension, throttling or termination is pursuant to Section 3.9(d), such period of unavailability of the Services will constitute Downtime as defined in the service level agreement set forth in the applicable Order, if any.

4PLATFORM SERVICES

4.1 Compute Services. Prime Intellect may provide Compute Services to Customer pursuant to an applicable Order. The specific resource allocations, hardware, capacity type, location and pricing applicable to Compute Services will be set forth in the applicable Order. Unless the applicable Order states otherwise: (a) on-demand capacity is provided subject to availability and without any capacity reservation; (b) spot or other interruptible capacity may be interrupted, reclaimed or terminated by Prime Intellect at any time with or without notice, is provided without any service level commitment, and any interruption of it does not constitute Downtime or a breach of this Agreement, and Customer is solely responsible for checkpointing and otherwise protecting its workloads against interruption; and (c) reserved capacity, and any minimum commitment, capacity guarantee or resale right associated with it, will be as expressly set out in the applicable Order.

4.2 Inference Services. Prime Intellect may provide Inference Services to Customer pursuant to an applicable Order. Unless the applicable Order states otherwise, serverless Inference Services are provided on shared, multi-tenant infrastructure, requests may be processed in any data center used by Prime Intellect, and Prime Intellect makes no commitment as to the location in which any request is processed. Any commitment regarding dedicated capacity, latency, throughput, routing, region or data residency applies only to the extent expressly set out in the applicable Order. Where Prime Intellect hosts a fine-tuned model or adapter for Customer, the model or adapter may be served on infrastructure that also serves other customers’ models and adapters, and Prime Intellect will maintain logical separation designed to prevent any other customer from accessing Customer’s model, adapter, requests or Output.

4.3 Sandbox Services. Prime Intellect may provide Sandbox Services to Customer pursuant to an applicable Order. Customer is solely responsible for the code, workloads and content it runs in any sandbox, for the network access controls, timeouts and secrets it configures, and for any consequences of enabling external access to a sandbox. Where Customer elects to enable Prime Intellect’s tunnel service or any other feature that makes a sandbox reachable from outside its isolation boundary, Customer is solely responsible for all traffic to and from, and all content and services exposed through, that sandbox, and Prime Intellect is not responsible for any Data Incident or other compromise of data resulting from Customer’s use of that feature.

4.4 Lab Services. Prime Intellect may provide Lab Services to Customer pursuant to an applicable Order. Environments, evaluations and other materials made available through the Environments Hub by persons other than Prime Intellect are Third-Party Materials. If Customer publishes or contributes any environment or other material to the Environments Hub, Customer’s rights and obligations with respect to that material will be governed by the terms applicable to the Environments Hub at the time of publication or contribution, and Customer is responsible for ensuring that it has all rights necessary to publish or contribute that material.

4.5 Managed Services. Prime Intellect may provide Managed Services to Customer pursuant to an applicable Order. The specific scope, service levels and terms applicable to Managed Services will be set forth in the applicable Order.

4.6 Bring Your Own Compute. Where the applicable Order permits, Customer may connect its own cloud account, virtual private cloud or other compute environment to the Services (a “BYOC Deployment”). In connection with any BYOC Deployment: (i) Customer is solely responsible for the configuration, security and compliance of its compute environment, including implementing and maintaining all technical and organizational measures required by applicable law and Customer’s own security policies or otherwise in accordance with reasonable industry security standards with respect to data and workloads processed therein; (ii) Prime Intellect’s warranties, indemnities and liability obligations under this Agreement do not extend to any failure, unavailability or security incident (including any Data Incident) arising from or attributable to Customer’s compute environment or Customer’s third-party infrastructure provider’s systems; (iii) Customer shall ensure that its compute environment meets any minimum technical specifications set forth in the applicable Documentation or Order; (iv) Prime Intellect’s access to Customer’s compute environment in connection with a BYOC Deployment is limited to that which is necessary to provide the applicable Services; and (v) Customer shall promptly notify Prime Intellect upon becoming aware of any unauthorized access to or compromise of Customer’s compute environment used in connection with the Services.

4.7 Service Levels. Any availability or performance commitment, and any service credit, applicable to Platform Services will be as expressly set out in the applicable Order. Service credits, where provided, are Customer’s sole and exclusive remedy for any failure to meet the applicable service level.

5PROFESSIONAL SERVICES

5.1 Performance. Prime Intellect will perform the Professional Services, and deliver the Deliverables, described in each Order, in accordance with the schedule, milestones and other requirements set out in that Order.

5.2 Customer Responsibilities. Customer will, in a timely manner and at its own expense: (a) provide the Customer Property, access, credentials, documentation, technical information, subject-matter support and personnel time described in the applicable Order or otherwise reasonably necessary for Prime Intellect to perform the Professional Services; (b) designate a point of contact authorized to respond to Prime Intellect’s questions, make decisions and approve changes in scope; and (c) perform any other responsibilities assigned to Customer in the applicable Order. Prime Intellect is relieved of its obligations, and any affected schedule, milestone or deadline is extended, to the extent Prime Intellect’s performance is delayed or prevented by Customer’s failure to perform its obligations under this Section 5.2 or the applicable Order.

5.3 Personnel; Access to Customer Systems. Prime Intellect is responsible for the supervision, direction and control of its Personnel, and Personnel remain Prime Intellect’s employees or contractors while working on Customer’s premises or in Customer Systems. Prime Intellect will ensure that its Personnel are bound by written obligations of confidentiality and assignment of intellectual property rights sufficient to enable Prime Intellect to comply with this Agreement. Where Personnel are given access to Customer Systems or equipment, Prime Intellect will cause them to access Customer Systems only as necessary to perform the Professional Services and to comply with Customer’s reasonable written security and access policies provided to Prime Intellect in advance. Customer is responsible for the configuration, security and operation of Customer Systems, and Prime Intellect is not responsible for any unavailability, defect, corruption or loss of data arising from Customer Systems.

5.4 Changes in Scope. Either Party may request a change to the scope, schedule or Deliverables under an Order. No change is effective unless and until documented in a written change order agreed by both Parties, which may be accepted electronically through the Platform or confirmed by email from an authorized representative of each Party. If a Customer-requested change materially increases the level of effort, compute or other resources required to perform the Professional Services, the Parties will negotiate in good faith an equitable adjustment to the Fees and schedule before the change takes effect.

5.5 Acceptance. Unless the applicable Order sets out a different acceptance procedure, Customer will have ten (10) Business Days following delivery of a Deliverable to notify Prime Intellect in writing, with reasonable specificity, of any material nonconformity of the Deliverable with the specifications set out in the applicable Order. Prime Intellect will correct any such nonconformity and redeliver the Deliverable, which will be subject to a further review under this Section 5.5. A Deliverable is deemed accepted upon the earliest of (a) Customer’s written acceptance, (b) expiration of the review period without Customer’s delivery of a notice of nonconformity meeting the requirements of this Section 5.5, and (c) Customer’s use of the Deliverable for any production or commercial purpose.

5.6 No Outcome Commitment. Except as expressly set out in an Order (including any performance milestone on which a Fee is conditioned), Prime Intellect makes no commitment, and assumes no liability, with respect to the performance, capability, accuracy, benchmark result, training outcome or commercial utility of any model, environment, dataset or other item trained, evaluated or validated in connection with the Professional Services, which depend on factors outside Prime Intellect’s control, including Customer Property, Third-Party Materials and Customer’s own use of the Deliverables.

5.7 Non-Exclusivity. This Agreement is non-exclusive. Unless an Order expressly states otherwise, Customer does not commit to any minimum volume of Services or Fees, and Prime Intellect does not commit to reserve capacity or to decline engagements with third parties. Nothing in this Agreement restricts either Party from developing, using or providing products or services similar to the Services or the Deliverables for itself or for others, including competitors of the other Party, provided that it does not use or disclose the other Party’s Confidential Information in breach of this Agreement.

6FEES AND PAYMENT TERMS

6.1 Fees. Customer will pay to Prime Intellect all fees specified in each Order or otherwise incurred pursuant to this Agreement (“Fees”) in accordance with this Section 6 and the applicable Order. Fees are quoted and payable in United States dollars. Payment obligations are non-cancelable and, except as otherwise expressly set forth in this Agreement or an Order, Fees paid are non-refundable. Monthly Fees for Platform Services are calculated based on a 30-day, 730-hour month; provided, however, that if any Fees are payable based on Customer’s use of the Services, Customer shall be charged, and be responsible for, any additional Fees incurred in connection with any excess use of the Services by Customer or any User, at the rates set out in the Order or, if none are set out, at Prime Intellect’s then-current published rates. Prime Intellect may increase the Fees for Platform Services by providing Customer with at least thirty (30) days’ advance written notice, which Fee increase will become effective as of the start of the next Renewal Order Term and will not apply during the then-current Order Term. Notwithstanding the foregoing, Prime Intellect may change the Hourly Rate for on-demand Services upon notice to Customer (email or posting on the Platform sufficing), effective on the date stated in the notice or, if no date is stated, when the notice is given, and the changed Hourly Rate will apply only to usage after it takes effect.

6.2 Payment Methods; Authorization. Unless Prime Intellect has approved invoiced billing for an Order under Section 6.3, Customer will pay Fees by credit card, debit card, ACH debit or another payment method that Prime Intellect makes available at Checkout, through Prime Intellect’s third-party payment processors. By submitting an Order with a payment method, Customer authorizes Prime Intellect and its payment processors to charge that payment method (or any replacement payment method on file in the Account) for (a) all Fees payable at the time of the Order, (b) all recurring Fees, in the amounts and at the billing frequency set out in the Order Details, for the Initial Order Term and each Renewal Order Term until the Order is cancelled or terminated in accordance with this Agreement, and (c) all usage-based and other Fees incurred under the Order, as incurred or periodically in arrears. For on-demand Services, Fees accrue at the hourly rate for the applicable Services set out in the Order Details (the “Hourly Rate”), and Customer authorizes Prime Intellect and its payment processors to charge Customer’s payment method on a continuous and incremental basis throughout the Order Term, based on the Hourly Rate, which charges may be more frequent than once per hour. If, after an Order ends, Customer believes that it has a positive account balance or has otherwise been charged Fees in excess of its usage of the Services, it may request a refund by email to ap@primeintellect.ai, and Prime Intellect will refund any amount that it confirms exceeds the Fees incurred. Customer will keep its payment information current and will ensure that its payment method has sufficient available funds or credit. Customer’s use of a payment method is subject to the terms of its card issuer or financial institution and the payment processor, and Prime Intellect is not responsible for any fee charged by them.

6.3 Invoiced Billing. Prime Intellect may, in its discretion and subject to credit review, approve invoiced billing for an Order, as indicated in the Order Details or the Order Confirmation. For an Order with invoiced billing, unless otherwise set forth in the applicable Order, (a) Prime Intellect will invoice Fees for Platform Services (other than Fees for on-demand Services, which Prime Intellect will invoice monthly in arrears) monthly in advance at the start of each billing period set forth in the applicable Order (or, if the applicable Order does not set forth billing periods, at the start of each calendar month during the Order Term), (b) Prime Intellect will invoice Fees for Professional Services as set out in the applicable Order or, absent specification, monthly in arrears, and (c) Customer will pay each invoice within thirty (30) days of receipt to the account designated by Prime Intellect in writing. Prime Intellect may withdraw approval of invoiced billing on written notice if any invoice is not paid when due, in which case Section 6.2 will apply to subsequent Fees.

6.4 Failed or Late Payment; Suspension. If any charge to Customer’s payment method is declined or reversed, or any undisputed invoiced amount remains unpaid fifteen (15) days after its due date, Prime Intellect may, in addition to any other remedy, suspend the Services under the applicable Order upon written notice (email sufficing) until the amount is paid, and if such amount remains unpaid thirty (30) days after its due date, Prime Intellect may terminate the applicable Order effective immediately upon written notice.

6.5 Disputed Amounts; Chargebacks; No Set-Off. Customer must notify Prime Intellect in writing at ap@primeintellect.ai of any disputed charge or invoice amount within thirty (30) days of the charge or invoice date, describing the basis for the dispute in reasonable detail, or the charge or invoice will be deemed accepted. Customer will timely pay all undisputed amounts, and the Parties will work in good faith to resolve any disputed amount promptly. Customer will pay any disputed amount ultimately determined to be owed within ten (10) Business Days after resolution. Customer will not initiate a chargeback or payment reversal for any amount that it has not first disputed in accordance with this Section 6.5, and Customer will reimburse Prime Intellect for any fees and costs incurred as a result of a chargeback or payment reversal that is not upheld. Customer may not set off or withhold any amount owed to Prime Intellect, except for amounts disputed in good faith in accordance with this Section 6.5.

6.6 Late Payment; Collection Costs. Undisputed amounts not paid when due accrue interest at the lesser of 1.5% per month and the maximum rate permitted by applicable law, from the due date until paid. Customer will pay all reasonable costs of collecting past-due amounts owed under this Agreement, including court costs and reasonable attorneys’ fees.

6.7 Expenses. Customer will reimburse Prime Intellect for reasonable, documented out-of-pocket expenses (including travel) incurred in performing Professional Services to the extent provided for in the applicable Order or approved in advance in writing by Customer.

6.8 Taxes. Customer is solely responsible for the payment of all taxes, assessments, tariffs, duties or other fees imposed, assessed or collected by or under the authority of any governmental body arising from Prime Intellect’s provision of the Services hereunder (collectively, “Taxes”), except for taxes assessed upon Prime Intellect’s net income and taxes based on Prime Intellect’s employment of its Personnel. Prime Intellect may calculate and charge applicable Taxes at Checkout or on any invoice based on the billing information in Customer’s Account. If Prime Intellect is required to pay Taxes related to Customer’s or any User’s use or receipt of any Services, Customer agrees to promptly reimburse Prime Intellect for any amounts paid by Prime Intellect. If Customer is required to withhold any Taxes related to Customer’s or any User’s use or receipt of any Services, the Fees payable to Prime Intellect shall be deemed to be increased to the extent necessary to ensure that Prime Intellect receives the same amount of Fees (net of any withholding) that it would have received had no withholding been made or required to be made. Customer shall provide Prime Intellect with all reasonable information and documentation requested by Prime Intellect regarding the Taxes which are or were due (or which may be due) under this Agreement, including any valid tax exemption certificate.

6.9 Refunds. Except as expressly set forth in this Agreement or the applicable Order, Fees are non-refundable, including where Customer cancels an Order or does not use the Services purchased under it. Where this Agreement provides for a refund, Prime Intellect will issue it to the original payment method or as a credit to Customer’s Account, at Prime Intellect’s election.

7PROPRIETARY RIGHTS

7.1 Customer Property; Output. As between Customer and Prime Intellect, Customer retains all right, title and interest in and to the Customer Property, including all intellectual property rights embodied therein or related thereto. Except as expressly set out in this Agreement, no right, title or license under any Customer Property is granted to Prime Intellect or implied hereby. Prime Intellect does not claim any ownership in any results or output generated by or on behalf of Customer through Customer’s use of the Platform Services (including any of the foregoing generated on the Platform using software or artificial intelligence models thereon) (collectively, “Output”). Output is the Confidential Information of Customer. Prime Intellect will not access Output except as necessary to provide the Services, as permitted under Section 3.8 or as instructed by Customer. Ownership of Deliverables is governed by Section 7.3, not this Section 7.1.

7.2 Prime Intellect Property. As between Prime Intellect and Customer, Prime Intellect retains all right, title and interest in and to the Prime Intellect Property, including all intellectual property rights embodied therein or related thereto. The Prime Intellect Property remains Prime Intellect’s property even if used in, or described or disclosed to Customer in connection with, the Services or any Deliverable, report, progress note or other communication. Except for the limited licenses expressly set out in this Agreement, no right, title or license under any Prime Intellect Property is granted to Customer or implied hereby, and nothing in this Agreement requires Prime Intellect to deliver, document or transfer any Prime Intellect Property.

7.3 Deliverables. Ownership of Deliverables will be as set out in the applicable Service Terms. To the extent the applicable Service Terms do not address ownership of a Deliverable, then, upon payment in full of the Fees applicable to that Deliverable, Prime Intellect grants Customer a non-exclusive, perpetual, irrevocable, worldwide, fully-paid and royalty-free license (transferable only in connection with a permitted assignment of this Agreement under Section 15.7) to use, reproduce and modify that Deliverable for Customer’s internal business purposes. To the extent any Prime Intellect Property is incorporated into a Deliverable, Prime Intellect grants Customer a non-exclusive, perpetual, worldwide, fully-paid and royalty-free license to use such Prime Intellect Property solely as incorporated in and as necessary to use that Deliverable, and not on a standalone basis.

7.4 License to Customer Property. Customer hereby grants to Prime Intellect a limited, non-exclusive, non-transferable, worldwide, fully-paid and royalty-free license, sublicensable solely to its Affiliates, subcontractors and Sub-processors, during the Term to access, use, reproduce, modify, display and create derivative works of the Customer Property as necessary for Prime Intellect to provide the Services to Customer, create Usage Information and exercise its rights pursuant to this Agreement.

7.5 Feedback; Improvements. If Customer or any User submits to Prime Intellect any suggestions, enhancement requests, comments, fixes or feedback relating to the Prime Intellect Property or the Services (“Feedback”), Prime Intellect may use such Feedback without restriction or obligation to Customer, provided that Prime Intellect will not identify Customer as the source of the Feedback or disclose Customer’s Confidential Information in doing so. Any modification or improvement to the Prime Intellect Property that is conceived, developed or reduced to practice by or for either Party, alone or jointly, in connection with the Services (excluding any Customer Property and any Customer Confidential Information embodied in it) will be owned by Prime Intellect, and Customer hereby assigns to Prime Intellect all right, title and interest it may have in any such modification or improvement.

7.6 Residual Knowledge. Nothing in this Agreement restricts Prime Intellect or its Personnel from using the general skills, knowledge, experience, ideas, concepts, techniques and know-how retained in the unaided memory of its Personnel in the course of performing the Services, provided that this Section 7.6 does not grant any license under Customer’s patents or copyrights and does not permit disclosure or use of Customer’s Confidential Information in breach of Section 9.

7.7 Customer-Provided Products. Customer is solely responsible for: (i) obtaining and maintaining all rights, licenses and credentials necessary to use all Customer-Provided Products; and (ii) installing, operating, updating and otherwise maintaining such Customer-Provided Products. Prime Intellect does not provide any warranties, guaranties or indemnification regarding any Customer-Provided Products or the operation thereof in connection with the Services. Prime Intellect does not have any responsibility or liability for any exchange of data or other interaction occurring between Customer and any provider of any Customer-Provided Product.

7.8 Third-Party Materials. The Services and Deliverables may include, be provided with, or be facilitated by Third-Party Materials. Customer’s use of Third-Party Materials is subject to the applicable third-party license or terms of use, which Prime Intellect will identify to Customer in the Documentation, upon request or as required by the applicable Service Terms. Customer is solely responsible for complying with those terms and for maintaining and updating any Third-Party Materials that Prime Intellect preinstalls for Customer’s use. ANY USE OF THIRD-PARTY MATERIALS IS AT CUSTOMER’S SOLE RISK, AND, EXCEPT AS EXPRESSLY SET OUT IN THE APPLICABLE SERVICE TERMS, PRIME INTELLECT EXPRESSLY DISCLAIMS ANY REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THIRD-PARTY MATERIALS. The term “Services” as used in this Agreement does not include Third-Party Materials.

7.9 Publicity. Customer grants Prime Intellect a non-exclusive, non-transferable (except in connection with a permitted assignment under Section 15.7), worldwide, fully-paid and royalty-free license to use Customer’s name and logo to identify Customer as a customer of Prime Intellect in customer lists on Prime Intellect’s websites and in its marketing materials, unless Customer opts out by email to marketing@primeintellect.ai, in which case Prime Intellect will cease new uses within thirty (30) days. Prime Intellect will use Customer’s name and logo in accordance with Customer’s reasonable branding guidelines provided to Prime Intellect in advance, and all associated goodwill inures to Customer’s benefit. Any press release, case study, quote or other public reference to Customer beyond the foregoing requires Customer’s prior written consent (email sufficing).

8DATA; SECURITY

8.1 Shared Responsibility. The Parties acknowledge and agree that security responsibilities regarding the Platform Services are subject to a shared responsibility model between Prime Intellect and Customer. Prime Intellect is responsible for taking steps to maintain appropriate security and protection at the physical level, which may include firewalls, endpoint detection and response (including through its EDR tool), physical network infrastructure and physical access controls. Customer is responsible for properly configuring and using the Platform Services and taking its own steps to maintain appropriate security, protection and backup of the Customer Property, which may include the use of encryption technology to protect Customer Property from unauthorized access and routine archiving. To the fullest extent permitted by applicable law or regulation, and except to the extent caused by Prime Intellect’s breach of Section 8.2, Prime Intellect shall have no liability for any data loss, unavailability or other consequences related to the foregoing. Customer shall be responsible and liable for the activities of any person that gains access to Customer Property or the Services as a result of Customer’s failure to comply with its obligations under this Agreement.

8.2 Professional Services Security. With respect to Customer Property that Customer transfers to Prime Intellect for the performance of Professional Services and that is held in Prime Intellect’s own systems (and not in Customer Systems or in Customer’s Account), Prime Intellect will implement and maintain administrative, technical, physical and organizational safeguards designed to protect such Customer Property against Data Incidents, which will include access controls limiting access to those Personnel who require it to perform the Services, encryption in transit and at rest, and secure credential management, together with any additional measures expressly set out in the applicable Order.

8.3 No Training on Customer Property. Prime Intellect will not use the Customer Property, the Output or any Deliverable owned by Customer to train, fine-tune, post-train, distill or evaluate any machine learning model for Prime Intellect’s own benefit or for the benefit of any third party, and will not incorporate any Customer Property into any Prime Intellect product, dataset, environment or offering made available to others, in each case except (a) as necessary to provide the Services to Customer, (b) in the form of Usage Information, or (c) as Customer expressly authorizes in writing.

8.4 Processing of Personal Data. To the extent that Customer Property includes information that constitutes “personal data,” “personal information” or any similar term (“Personal Data”) under applicable laws and regulations that govern data protection, privacy or the use of Personal Data (“Privacy Laws”), the Parties acknowledge that Prime Intellect is a “service provider,” “processor” or any similar term provided under applicable Privacy Laws and Customer is the “controller,” “business” or any similar term provided under Privacy Laws. Prime Intellect shall only process Personal Data included in the Customer Property: (i) for the limited and specific purpose of providing the Services or as instructed by Customer in writing from time to time (to the extent such instructions are consistent with this Agreement and do not materially increase Prime Intellect’s obligations under this Agreement); (ii) as otherwise expressly permitted by this Agreement; or (iii) as required by law or regulation, legal process or any governmental or regulatory authority. To the extent required by applicable Privacy Laws, Prime Intellect is prohibited from: (x) “selling” or “sharing” (as such terms are defined under applicable Privacy Laws) the Personal Data for cross-context behavioral advertising purposes; (y) retaining, using or disclosing the Personal Data outside of the direct business relationship between Prime Intellect and Customer and for any purpose other than for the specific purpose of performing the Services or as otherwise permitted under this Agreement; and (z) combining the Personal Data received from, or on behalf of, Customer with any Personal Data that may be collected from Prime Intellect’s separate interactions with the individual(s) to whom the Personal Data relates or from any other sources, except to perform a business purpose or as otherwise permitted by Privacy Laws. Prime Intellect’s handling of Account, billing and contact information that it processes as a controller is described in its Privacy Policy.

8.5 Customer Data Responsibilities. Customer shall comply with, and represents and warrants that (i) all Personal Data was collected and at all times processed and maintained by or on behalf of Customer in compliance with all Privacy Laws, including with respect to any obligations to provide notice to and/or obtain consent from individuals; (ii) Customer has complied with all Privacy Laws in disclosing the Personal Data to Prime Intellect and enabling Prime Intellect to process the Personal Data as set out in this Agreement; and (iii) Prime Intellect’s processing of Personal Data as set out in this Agreement will comply with all Privacy Laws. Customer is solely responsible and liable for: (x) the processing of all Customer Property by or on behalf of Customer; (y) any Personal Data processed by any User arising from or related to the Services; and (z) any Personal Data displayed, disclosed, generated or published from or in connection with any use of the Services by or on behalf of Customer.

8.6 Restricted Data. Without limiting anything to the contrary herein, without Prime Intellect’s prior written approval, Customer will not collect, use, store, transmit, disclose or otherwise process any Personal Data in connection with the Services that (i) is subject to any non-U.S. Privacy Laws (including the GDPR or the Data Protection Act 2018 (UK)), other than in accordance with the DPA; or (ii) otherwise violates the Acceptable Use Policy. Customer will not provide any Personal Data to Prime Intellect for Professional Services unless the applicable Service Terms or another written agreement between the Parties sets out appropriate data processing terms.

8.7 Data Incidents. Prime Intellect will notify Customer without undue delay, and in any event within seventy-two (72) hours, after becoming aware of a Data Incident, and Customer will notify Prime Intellect without undue delay after becoming aware of any unauthorized access to its Account or to the Services through Customer’s credentials or systems. To the extent required by applicable Privacy Laws, and taking into account the nature of the processing, as instructed by Customer, Prime Intellect shall reasonably assist Customer in an effort to provide information to Customer designed to enable Customer to fulfill its notification obligations to Users or relevant authorities in connection with a Data Incident. Customer shall be responsible for any reasonable costs arising from Prime Intellect’s provision of such assistance unless such Data Incident is determined to have been caused by Prime Intellect (or its Sub-processors), in which case Prime Intellect shall provide such assistance at no charge.

8.8 Usage Information. Customer acknowledges that Prime Intellect monitors the performance and usage of the Services by its customers, including Customer and Users, combines this data (“Usage Information”) with other information, and uses such combined data in an aggregate, de-identified or anonymized manner for its business purposes. Examples of Usage Information include compiling statistical and performance information related to the operation of the Services, determining usage trends, performing analytics, and developing and improving the Services and Prime Intellect’s other products and services. Usage Information will not identify Customer or any User or reveal the content of any Customer Property, Output or Deliverable. Prime Intellect retains all intellectual property rights in and to Usage Information. This Section 8.8 does not limit Section 8.3.

8.9 Business Associate Agreement. To the extent Customer intends to use the Services to process, transmit or store PHI, Customer shall obtain Prime Intellect’s prior written approval, and the Parties shall execute a BAA prior to Prime Intellect processing any PHI on Customer’s behalf. Customer shall not submit, transmit or store any PHI in connection with the Services unless and until a BAA is in effect between the Parties. The terms of the BAA shall govern Prime Intellect’s obligations with respect to PHI and shall be incorporated by reference into this Agreement. Prime Intellect makes no representation that the Services are HIPAA-compliant in the absence of a validly executed BAA.

8.10 Data Processing Addendum. To the extent Prime Intellect processes Personal Data on Customer’s behalf that is subject to Privacy Laws requiring a written data processing agreement (including the GDPR or the UK GDPR), the DPA applies to that processing and is incorporated herein by reference and forms part of this Agreement, without the need for signature. In the event of a conflict between the DPA and the terms of this Agreement with respect to the processing of Personal Data subject to Privacy Laws, the terms of the DPA shall govern. Customer may request a countersigned copy of the DPA by email to privacy@primeintellect.ai.

9CONFIDENTIALITY

9.1 Obligations. Each Receiving Party will (a) protect the Confidential Information of the Disclosing Party using at least the same degree of care it uses to protect its own confidential information of like kind, and in no event less than a reasonable degree of care; (b) use the Confidential Information of the Disclosing Party solely to exercise its rights and perform its obligations under this Agreement; and (c) not disclose the Confidential Information of the Disclosing Party to any third party except with the Disclosing Party’s prior written consent or as otherwise permitted by this Section 9. A Receiving Party may disclose Confidential Information of the Disclosing Party to its Affiliates and to its and their officers, directors, employees, contractors, Sub-processors, agents and professional advisors who need to know such information in connection with the Receiving Party’s exercise of its rights or performance of its obligations hereunder and who are bound by written obligations (or, in the case of professional advisors, professional duties) of confidentiality no less protective than those set out herein. The Receiving Party is responsible for any breach of this Section 9 by any person to whom it discloses Confidential Information.

9.2 Compelled Disclosure. If a Receiving Party is compelled by law or regulation, legal process or any governmental or regulatory authority to disclose Confidential Information of the Disclosing Party, it shall, to the extent legally permitted, provide the Disclosing Party with prompt prior notice of such compelled disclosure and use reasonable efforts, at the Disclosing Party’s cost, to assist the Disclosing Party in seeking a protective order or other appropriate remedy, and shall disclose only that portion of the Confidential Information that it is legally required to disclose.

9.3 Return or Destruction. Upon the Disclosing Party’s written request following expiration or termination of the applicable Order or this Agreement, the Receiving Party will return or destroy (at the Disclosing Party’s election) the Disclosing Party’s Confidential Information in its possession or control, except for copies retained in routine automated backup systems, copies retained in accordance with Section 13.6, and copies required to be retained by applicable law, which in each case remain subject to this Section 9 for so long as retained. Nothing in this Agreement requires Prime Intellect to delete or return any Prime Intellect Property.

9.4 Duration. The obligations in this Section 9 continue during the Term and for five (5) years following expiration or termination of this Agreement, except that with respect to information that constitutes a trade secret under applicable law, the obligations continue for so long as such information remains a trade secret.

9.5 Equitable Relief. Each Party acknowledges that a breach or threatened breach of this Section 9 may cause irreparable harm for which monetary damages would be an inadequate remedy, and that the non-breaching Party is entitled to seek injunctive and other equitable relief to prevent or stop such breach, without the necessity of posting a bond or proving actual damages, in addition to any other remedies available at law or in equity.

10WARRANTIES; DISCLAIMERS

10.1 Mutual Warranties. Each Party represents and warrants to the other Party that it has the legal power and authority to enter into this Agreement and that its acceptance and performance of this Agreement do not conflict with any other agreement to which it is a party.

10.2 Professional Services Warranty. Prime Intellect warrants that it will perform the Professional Services in a professional and workmanlike manner consistent with generally accepted industry standards. Customer must notify Prime Intellect in writing of any breach of this warranty, with reasonable specificity, within thirty (30) days after performance of the nonconforming Professional Services. Customer’s sole and exclusive remedy, and Prime Intellect’s sole and exclusive obligation, for breach of this warranty is for Prime Intellect to re-perform the nonconforming Professional Services at no additional charge or, if Prime Intellect is unable to do so within a reasonable period, to refund the Fees paid for the nonconforming Professional Services, unless the applicable Service Terms provide a different remedy.

10.3 Customer Warranties. Customer represents and warrants to, and covenants with, Prime Intellect that at all times it: (i) owns, or has all necessary rights, consents and authorizations to provide to Prime Intellect and to process or otherwise use or handle, and to permit Prime Intellect to use as contemplated by this Agreement, the Customer Property; (ii) will, and will ensure that all Users, comply with the terms of this Agreement (including the Acceptable Use Policy) in connection with any access to or use of the Services; (iii) will not use the Services in a personal, familial or household capacity; and (iv) is a business or other organization acquiring the Services for business purposes, and all information that it provides in its Account and at Checkout is true, accurate and complete.

10.4 Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW OR REGULATION, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT: (i) THE SERVICES, THE DELIVERABLES AND ALL OUTPUT ARE PROVIDED “AS IS”; (ii) PRIME INTELLECT MAKES NO ADDITIONAL WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY OF ANY KIND TO CUSTOMER OR ANY USER, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE; (iii) PRIME INTELLECT HEREBY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, CONDITIONS, REPRESENTATIONS, UNDERTAKINGS AND GUARANTIES, INCLUDING WITH RESPECT TO TITLE, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY THAT THE SERVICES, DELIVERABLES OR OUTPUT WILL BE ACCURATE, ERROR-FREE OR UNINTERRUPTED; AND (iv) PRIME INTELLECT’S LIABILITY UNDER ANY IMPLIED OR STATUTORY WARRANTY, CONDITION, REPRESENTATION, UNDERTAKING OR GUARANTY WHICH CANNOT BE LEGALLY EXCLUDED IS LIMITED TO SUPPLYING THE APPLICABLE SERVICES AGAIN OR PAYING THE COST OF SUPPLYING THE APPLICABLE SERVICES AGAIN. IN ADDITION, CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SERVICES ARE NOT DESIGNED OR INTENDED FOR HIGH-RISK ACTIVITIES, AND THAT CUSTOMER IS SOLELY RESPONSIBLE FOR EVALUATING THE SUITABILITY OF ANY OUTPUT, MODEL OR DELIVERABLE BEFORE RELYING ON OR DEPLOYING IT.

11INDEMNIFICATION

11.1 Prime Intellect Indemnification. Prime Intellect will indemnify, defend and hold harmless Customer and its Affiliates, and their respective employees, directors, officers, contractors, representatives and permitted assigns (collectively, the “Customer Indemnified Parties”), from and against any losses, liabilities and damages (including reasonable attorneys’ fees) awarded against, or paid in settlement by, any Customer Indemnified Party that result from any actions, suits, demands or claims brought by any third party (collectively, “Claims”) against any Customer Indemnified Party alleging that the Services, as provided by Prime Intellect and used in accordance with this Agreement, infringe any patent, copyright or trademark, or misappropriate any trade secret, of such third party. Without limiting the foregoing, in the event that any portion of the Services is, or in Prime Intellect’s opinion is likely to become, the subject of any such Claim, Prime Intellect may, at its option and expense: (i) procure for Customer the right to continue using the allegedly infringing item; (ii) substitute a functionally equivalent non-infringing replacement for such item; or (iii) modify such item to make it non-infringing and functionally equivalent; and if none of the foregoing is commercially reasonable, Prime Intellect may terminate Customer’s use of the affected item and refund any prepaid Fees for it covering the period after termination. Notwithstanding the foregoing, Prime Intellect shall have no responsibility or liability for any Claim to the extent arising from: (1) any Customer Property, Output or Customer-Provided Product; (2) any Third-Party Materials; (3) use of the Services in combination with any software, hardware, network, data or system not supplied by Prime Intellect, to the extent the alleged infringement relates to such combination; (4) any modification or alteration of the Services other than by or at the direction of Prime Intellect; (5) compliance with Customer’s specifications or instructions; or (6) Customer’s violation of applicable law or regulation, third-party rights or this Agreement, or use of the Services beyond the rights expressly granted in this Agreement (collectively, “Excluded Claims”). Prime Intellect’s indemnification obligations with respect to Deliverables, if any, are as set out in the applicable Service Terms.

11.2 Customer Indemnification. Customer will indemnify, defend and hold harmless Prime Intellect and its Affiliates, and their respective employees, directors, officers, contractors, representatives and permitted assigns (collectively, the “Prime Intellect Indemnified Parties”), from and against any losses, liabilities and damages (including reasonable attorneys’ fees) awarded against, or paid in settlement by, any Prime Intellect Indemnified Party that result from any Claim to the extent such Claim arises out of or results from: (i) any allegation that any Customer Property, Output or Customer-Provided Product, or Prime Intellect’s use of it in accordance with this Agreement, infringes, violates or misappropriates any intellectual property, privacy or other right of any third party; (ii) Customer’s or any User’s use of the Services, Output or Deliverables in violation of this Agreement or applicable law; or (iii) any Excluded Claim. Customer has no obligation under this Section 11.2 to the extent a Claim arises from the gross negligence, willful misconduct or breach of this Agreement of a Prime Intellect Indemnified Party.

11.3 Indemnification Procedures. The indemnifying Party’s obligations under this Section 11 are contingent upon the indemnified Party (i) giving prompt written notice to the indemnifying Party of any Claim subject to indemnification under this Section 11 (provided that any delay or failure in doing so will not relieve the indemnifying Party of its obligations hereunder except to the extent that its ability to defend such Claim was materially prejudiced by such delay or failure); (ii) giving the indemnifying Party sole control of the defense or settlement of the Claim; and (iii) cooperating in the investigation and defense of such Claim at the indemnifying Party’s expense. The indemnified Party may participate in the defense at its own expense with counsel of its choosing. The indemnifying Party shall not settle or consent to an adverse judgment in any such Claim that adversely affects the indemnified Party’s rights or interests (except, in the case of Prime Intellect as indemnifying Party, to the extent affecting Customer’s continued use of the Services), requires an admission of liability by the indemnified Party or requires the indemnified Party to pay any amounts not fully indemnified by the indemnifying Party, in each case without the prior express written consent of the indemnified Party, which shall not be unreasonably withheld.

11.4 Exclusive Remedy. This Section 11, together with any indemnification provision of the applicable Service Terms, states the sole obligations of the indemnifying Party, and the exclusive remedies of the indemnified Parties, for any Claim of intellectual property infringement or misappropriation.

12LIMITATION OF LIABILITY

12.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW OR REGULATION, AND SUBJECT TO SECTION 12.3, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER UNDER THE ORDER UNDER WHICH SUCH LIABILITY AROSE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATION APPLIES EVEN IF A PARTY’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

12.2 Exclusion of Consequential and Related Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW OR REGULATION, AND SUBJECT TO SECTION 12.3, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR: (i) ANY LOST PROFITS, LOSS OF REVENUE OR BUSINESS, LOSS OF USE OR DATA, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, COSTS OF ANY TRAINING RUN OR COMPUTE, OR ANY OTHER INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (ii) ANY LOSS OR DAMAGE SUFFERED BY CUSTOMER OR ANY THIRD PARTY (INCLUDING ANY USER) TO THE EXTENT THAT SUCH LOSS OR DAMAGE IS CAUSED BY THE FAILURE OF CUSTOMER TO COMPLY WITH ITS OBLIGATIONS UNDER THIS AGREEMENT.

12.3 Exclusions from Limitations. The limitations in Sections 12.1 and 12.2 do not apply to (a) Customer’s obligation to pay Fees; (b) Customer’s breach of the Acceptable Use Policy or Section 15.11, or Customer’s infringement or misappropriation of the Prime Intellect Property; or (c) a Party’s fraud, gross negligence or willful misconduct.

13TERM AND TERMINATION

13.1 Term of Agreement. This Agreement commences on the Effective Date and shall remain in effect until terminated in accordance with this Section 13 (the “Term”).

13.2 Term of any Order. The initial term of each Order shall commence on the start date stated in the Order Details (or, if none is stated, the date of the Order Confirmation) and continue for the term set forth in the Order Details or, if no term is stated, until completion of the Services under that Order (the “Initial Order Term” and, together with any Renewal Order Terms, the “Order Term”). Unless otherwise set out in the applicable Order: (a) each Order for Platform Services shall renew automatically for successive terms of one (1) month (each, a “Renewal Order Term”), and Customer’s payment method will be charged the applicable recurring Fees for each Renewal Order Term in accordance with Section 6.2, unless either Party cancels the renewal at least seven (7) days prior to the expiration of the Initial Order Term or then-current Renewal Order Term, which Customer may do through its Account settings or by written notice to Prime Intellect; and (b) no Order for Professional Services renews automatically, and any renewal or extension of such an Order requires a new Order or the mutual written agreement of the Parties. The renewal terms of each Order, including the length of each Renewal Order Term, the recurring Fees and the cancellation deadline, will be disclosed at Checkout and in the Order Confirmation.

13.3 Termination for Cause. Either Party may terminate this Agreement or any affected Order upon written notice to the other Party if the other Party materially breaches any of the provisions of this Agreement or that Order and, if such breach is capable of being cured, fails to cure such breach within thirty (30) days after receipt by the breaching Party of written notice specifying the breach in reasonable detail. Either Party may terminate this Agreement immediately upon written notice if the other Party becomes insolvent, makes a general assignment for the benefit of creditors, or becomes the subject of any bankruptcy, receivership or similar proceeding that is not dismissed within sixty (60) days.

13.4 Termination of Non-Committed Orders. Prime Intellect may terminate any Non-Committed Order, in whole or in part, for convenience at any time upon notice to Customer (email sufficing), effective on the date stated in the notice or, if no date is stated, when the notice is given. A “Non-Committed Order” is an Order, or the part of an Order, for on-demand, spot or other Services that are not provided on capacity dedicated to Customer for a fixed Order Term stated in the Order Details, and includes any Order for dedicated capacity during a Renewal Order Term. Termination under this Section 13.4 is without penalty and without liability to Customer, is not a breach of this Agreement, and does not give rise to any service credit or constitute Downtime. Section 13.6 otherwise applies to any termination under this Section 13.4.

13.5 Termination Where No Order is in Effect. Where no Order is in effect, either Party may terminate this Agreement by providing written notice to the other Party, and Customer may do so by closing its Account.

13.6 Effect of Termination. Termination of this Agreement terminates all Orders then in effect, and termination of an Order does not terminate this Agreement or any other Order. Upon expiration or termination of an Order: (i) all rights granted to Customer under that Order will immediately terminate, except for any license to Deliverables that is expressly stated to be perpetual; (ii) Customer and its Users must immediately cease all access to and use of the Services under that Order; (iii) Customer shall return or destroy (at Prime Intellect’s election) all Prime Intellect Property (including Prime Intellect’s Confidential Information) received under that Order, other than Prime Intellect Property incorporated in Deliverables that Customer is licensed to retain; (iv) Customer shall pay Prime Intellect all Fees accrued through the effective date of termination, including, for Professional Services, Fees for work performed and milestones achieved through that date and any non-cancelable costs incurred by Prime Intellect, and all Fees still owed to Prime Intellect shall become immediately due and payable, and Customer authorizes Prime Intellect to charge them to Customer’s payment method on file; and (v) Prime Intellect will deliver to Customer any Deliverables completed and paid for as of the effective date of termination. Following expiration or termination of an Order for Platform Services, Prime Intellect may delete the Customer Property stored on the Platform in connection with that Order without liability, provided that Prime Intellect will make such Customer Property available for retrieval by Customer for fifteen (15) days following expiration or termination (other than where termination results from Customer’s breach), and provided further that Prime Intellect may maintain a copy of the Customer Property in accordance with Prime Intellect’s data retention practices and as otherwise required by applicable laws and regulations, subject to Section 9. Termination of this Agreement or any Order does not, by itself, terminate the Terms of Service or close Customer’s Account.

13.7 Surviving Provisions. Any provision which by its nature is intended to survive the termination or expiration of this Agreement, including Sections 1, 5.6, 6 (as to amounts accrued), 7 (other than Section 7.4 and Section 7.9), 8.3, 8.7, 8.8, 9, 10.4, 11, 12, 13.6, 13.7 and 15, shall survive such expiration or termination. Termination or expiration of this Agreement shall not affect any obligation or liability accrued or arising prior to such termination or expiration.

14CHANGES TO THIS AGREEMENT

14.1 Updates. Prime Intellect may update this Agreement, the Acceptable Use Policy and any Service Terms from time to time by posting the updated version on the Website with a new “Last updated” date. For material changes, Prime Intellect will also notify Customer by email or through the Platform at least thirty (30) days before the changes take effect, except where a change is required by law, in which case it takes effect on the date specified in the notice.

14.2 Effect on Orders. Each Order is governed by the version of this Agreement and the Service Terms in effect when that Order is accepted, and an update does not apply to an Order during its then-current Order Term, except (a) for changes required by law, (b) for updates to the Acceptable Use Policy that address security, abuse or legal compliance, or (c) as Customer agrees. An updated version applies to each Order from the start of its next Renewal Order Term following the effective date of the update, and to each new Order accepted after the update takes effect. Customer’s acceptance of an updated version at Checkout, or its failure to cancel the renewal of an Order under Section 13.2 after receiving notice of the update, constitutes its acceptance of the updated version.

14.3 No Retroactive Effect. No update applies to any dispute between the Parties that arose before the update took effect.

15MISCELLANEOUS PROVISIONS

15.1 Relationship. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties. Prime Intellect is solely responsible for the compensation, benefits, tax withholding and other employment-related obligations of its Personnel, and its Personnel are not employees, joint employees or agents of Customer for any purpose. Neither Party has authority to bind the other.

15.2 Entire Agreement; Order of Precedence. This Agreement constitutes the entire agreement between the Parties as to its subject matter and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the Parties with respect to the subject matter of this Agreement, except for any Signed Agreement, which governs as provided in Section 2.5. In the event of any conflict or inconsistency, the following order of precedence applies, solely with respect to the Services under the applicable Order: (i) the Order Details; (ii) the Service Terms applicable to that Order; (iii) this Agreement, including the DPA where it applies under Section 8.10; (iv) the exhibits to this Agreement; and (v) the Terms of Service; provided that a provision of an Order or Service Terms will override Section 9, Section 11 or Section 12 of this Agreement only where it expressly identifies the provision being overridden. Notwithstanding any language to the contrary therein, all terms and conditions stated in any Customer purchase order, vendor registration or portal terms, or other ordering documentation (other than an Order placed and accepted in accordance with this Agreement) are hereby rejected, will not be deemed incorporated into or form any part of this Agreement, and are null and void.

15.3 Modification; Waiver. Except as provided in Section 14, this Agreement may not be modified or amended except by a written instrument signed by authorized representatives of both Parties, and no click-through, shrink-wrap or similar terms presented by Customer will modify this Agreement. The failure of any Party in any one or more instances to insist upon strict performance of any provisions of this Agreement, or to exercise any option or remedy which is conferred by this Agreement, shall not be construed as a waiver or relinquishment to any extent of the right to assert or rely upon any such provisions, options or remedies on any future occasion. No waiver by either Party hereunder shall be effective unless agreed to pursuant to a writing signed by a duly authorized representative of the Party granting the waiver.

15.4 Governing Law. This Agreement, and all disputes arising out of or relating to it, are governed by the laws of the State of New York, without giving effect to any conflicts of laws principles that would require the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

15.5 Dispute Resolution; Arbitration. The Parties will first attempt in good faith to resolve any dispute arising out of or relating to this Agreement, its breach or the transactions contemplated hereby through informal discussions between executives with authority to settle the dispute, for a period of thirty (30) days following written notice of the dispute. Any dispute not resolved through those discussions will be submitted to final and binding arbitration administered by JAMS in San Francisco, California, before a single neutral arbitrator, conducted in the English language under the JAMS Streamlined Arbitration Rules and Procedures (for claims under $250,000) or the JAMS Comprehensive Arbitration Rules and Procedures (for claims of $250,000 or more). The arbitrator will apply the substantive law of the State of New York in accordance with Section 15.4, and questions of arbitrability, including determinations of unconscionability and the interpretation of this Section 15.5, will be determined by the arbitrator. The Federal Arbitration Act governs this Section 15.5. The arbitrator’s award is final and shall not be subject to judicial review, except as provided by the Federal Arbitration Act, and may be entered in any court of competent jurisdiction. The Parties shall share equally the administrative costs and fees of the arbitration, including the costs of transcription, and each Party shall bear its own attorneys’ fees and related costs, unless otherwise provided by applicable law or awarded by the arbitrator. Except to the extent necessary to confirm or enforce an award or as may be required by applicable law or regulation, neither a Party nor the arbitrator may disclose the existence, content or results of an arbitration without the prior written consent of the other Party. Each Party expressly and irrevocably waives any claim or defense in any arbitration or proceeding based on any alleged lack of personal jurisdiction, improper venue, forum non conveniens or any similar doctrine or theory. EACH PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT. Any proceeding to resolve a dispute hereunder will be conducted solely on an individual basis, and neither Party will seek to have any dispute heard as a class action or class arbitration.

15.6 Injunctive Relief; Courts. Nothing in Section 15.5 prevents either Party from seeking injunctive or other equitable relief (including under Section 9.5) to prevent or stop a breach of this Agreement or to protect its intellectual property rights or Confidential Information, or from bringing an action to confirm or enforce an arbitral award, in a court of competent jurisdiction. Any such action shall be brought in the state or federal courts located in San Francisco, California, and each Party hereby submits to the exclusive jurisdiction of those courts for such limited purposes.

15.7 Assignment. Neither Party may assign this Agreement or any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other Party, except that either Party may, without the consent of the other Party, assign this Agreement in its entirety, together with its rights and obligations hereunder, to an Affiliate or to a successor in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of its assets or shares, provided that the assignee agrees in writing to be bound by this Agreement. Any attempt by a Party to assign this Agreement or its rights or obligations under this Agreement in breach of this Section 15.7 shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties and their respective successors and permitted assigns.

15.8 Subcontracting. Except as otherwise provided in the applicable Order, Prime Intellect may, without the consent of Customer, subcontract or delegate its obligations under this Agreement, including to third-party compute and infrastructure providers and payment processors, provided that Prime Intellect binds each subcontractor to confidentiality obligations at least as protective as those in this Agreement and remains responsible for the performance of its subcontractors.

15.9 Notices. All notices under this Agreement must be in writing and in the English language and are effective upon (a) personal delivery, (b) the second Business Day after deposit with a nationally recognized overnight courier, or (c) the Business Day sent by email, absent notice of non-delivery. Notices to Customer shall be delivered to the email address (or, for courier delivery, the physical address) associated with Customer’s Account or designated by Customer at Checkout for notices. Notices to Prime Intellect shall be addressed to legal@primeintellect.ai. Either Party may change its address for notice by giving notice of such address change in the manner provided herein, and Customer may also do so by updating its Account. Notwithstanding the foregoing, Prime Intellect may provide all business and product-related communications (e.g., Order Confirmations, receipts, renewal reminders, release notes for product updates, privacy policy updates, critical security updates and information on critical bugs and outages) to Customer by email, posting on the Services or other electronic means, and routine operational communications regarding Professional Services may be exchanged through the Parties’ agreed collaboration channel.

15.10 Anti-Corruption. Each Party will comply with all applicable anti-bribery and anti-corruption laws, including the U.S. Foreign Corrupt Practices Act. Each Party represents that it has not offered, given or received any illegal bribe, kickback, payment, gift or thing of value from or to any employee, agent or representative of the other Party in connection with this Agreement, and each Party will promptly notify the other Party if it becomes aware of any such improper payment or transfer.

15.11 Trade Control. The Platform, the Services and the Deliverables are subject to applicable trade control laws, rules and regulations, including the Export Administration Regulations (“EAR”) and sanctions administered by the Office of Foreign Assets Control (“OFAC”) (collectively, “Trade Control Laws”). Each Party will comply with all Trade Control Laws applicable to it in connection with this Agreement, and Customer will cause all Users to comply with all Trade Control Laws. Customer represents and warrants, on its behalf and on behalf of all Users, that: (i) Customer is responsible for compliance with applicable Trade Control Laws in connection with its and its Users’ use of the Platform, the Services and the Deliverables and shall obtain all necessary export licenses or other governmental approvals related to such use; (ii) neither Customer nor any User is, or is 50% or more owned or otherwise controlled by one or more parties that are, (1) located in, or organized under the laws of, any country or territory that is subject to comprehensive OFAC sanctions; (2) an individual or entity included on any U.S. list of prohibited or restricted parties, including the Treasury Department’s Specially Designated Nationals and Blocked Persons List (“SDN List”) and Sectoral Sanctions Identifications List (“SSI List”), the Commerce Department’s Entity List, or any other export denial or prohibited transactions list or directive; or (3) engaged in activities prohibited by Trade Control Laws or that would cause Prime Intellect to violate such Trade Control Laws in its performance of this Agreement; and (iii) Customer will not, and will cause each User not to, use the Platform, the Services or the Deliverables to (1) support end uses prohibited under Trade Control Laws, including those related to nuclear, chemical or biological weapons proliferation, missile systems or technology, restricted unmanned aerial vehicles, or certain advanced supercomputer or semiconductor applications; or (2) circumvent or facilitate any violation of Trade Control Laws. Additionally, Customer agrees not to, and to cause each User not to, directly or indirectly sell, export, re-export, transfer, divert or otherwise dispose of the Platform, the Services or the Deliverables in contravention of Trade Control Laws. Customer will provide such information as Prime Intellect reasonably requests to complete its sanctions, export control and know-your-customer screening, before or after an Order is accepted. Failure to comply with such laws and regulations may result in the suspension or termination of Customer’s access to the Platform, the Services, any applicable Order and this Agreement, without liability to Prime Intellect.

15.12 Force Majeure. Neither Party will be liable under this Agreement for delays or failures to perform (other than payment obligations) caused by fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, war, terrorism, governmental actions, epidemics, shortages of equipment or supplies, equipment malfunctions, loss of access to or degradation of networks, equipment or data centers used to provide the Services, failures of third-party power, network or cloud infrastructure, unavailability of transportation, acts or omissions of third parties or any other cause beyond its reasonable control, and any affected dates will be extended accordingly. If a force majeure event prevents a Party’s performance under an Order for more than thirty (30) consecutive days, either Party may terminate the affected Order upon written notice.

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

15.14 Interpretation. The titles, headings and captions contained in this Agreement are for reference purposes only and will not affect in any way the meaning or interpretation of this Agreement. Unless otherwise indicated to the contrary herein by the context or use thereof, for the purposes of this Agreement: (i) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; and (iii) the terms “shall” and “will” are synonyms as used in this Agreement and each term indicates that the corresponding Party must perform the obligation that is subject to such term. The Parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. Unless otherwise expressly stated herein, the rights and remedies of the Parties are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise.

15.15 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and, except as provided in Section 11, nothing herein, express or implied, is intended to or will confer upon any other person any legal or equitable right, benefit or remedy.

15.16 Electronic Acceptance; Records. Customer’s acceptance of this Agreement and of any Order or Service Terms by clicking to accept, submitting an Order through Checkout or other electronic means constitutes Customer’s electronic signature and has the same force and effect as a handwritten signature under the U.S. Electronic Signatures in Global and National Commerce Act and any similar applicable law. Prime Intellect’s electronic records of Customer’s acceptance, Orders and Order Confirmations, including the version of each document accepted, will be admissible and, absent manifest error, conclusive evidence of their contents. Customer may download or print a copy of this Agreement, and Prime Intellect will make the version applicable to each Order available to Customer on request.

Exhibit AAcceptable Use Policy

Except as expressly set out in this Agreement or the applicable Order, Customer will not, and will not permit any User or third party to:

1. sell, resell, rent, lease or otherwise distribute any portion of the Services or use the Services to provide a service bureau, except that Customer may use the Inference Services and Output to power Customer’s own products and services where permitted by the applicable Order;
2. use the Services other than in accordance with the Documentation or in a manner that interferes with, unduly burdens or disrupts the integrity, performance or availability of the Services (for example, by conducting load tests or penetration tests);
3. attempt to gain unauthorized access to the Services or the Platform or to Prime Intellect’s or its third-party suppliers’ related facilities, systems or networks, including by attempting to escape or circumvent the isolation boundary of any sandbox or to access any other customer’s workloads, models, adapters or data;
4. access or use any portion of the Platform or Services that is not expressly identified in the applicable Order or otherwise made available to Customer under the Terms of Service;
5. access or use any portion of the Services for the purpose of building a similar or competitive product or service or monitor the Services for any benchmarking or competitive purpose;
6. introduce, disseminate or otherwise enable any viruses, Trojan horses, spyware, worms, malware, spam or malicious code using the Services, or use any sandbox or tunnel to host or distribute any of the foregoing or to launch attacks against any third party;
7. copy, modify, translate or create derivative works of any Prime Intellect Property, except as expressly permitted by this Agreement;
8. reverse engineer, disassemble or decompile any software included in the Prime Intellect Property, except as required under applicable law or regulation;
9. use the Services for crypto-mining;
10. use the Services for any unlawful purpose, or to generate or distribute content that is unlawful or that infringes or misappropriates the rights of any third party;
11. except as otherwise agreed in writing between Prime Intellect and Customer, collect, use, store, transmit, disclose or otherwise process any Personal Data arising out of or related to the Services that consists of or contains any (a) “bulk U.S. sensitive personal data” or “government-related data” as those terms are defined under 28 C.F.R. Part 202; (b) Social Security numbers or other government-issued identification numbers; (c) health insurance information, “protected health information” or “individually identifiable health information” subject to HIPAA, or other information regarding an individual’s health, medical history, mental or physical condition, or medical treatment or diagnosis by a health care professional; (d) genetic, biometric, neural or biological data; (e) data relating to a person’s racial or ethnic origin, religious or philosophical beliefs, political opinions, sexuality or sexual orientation, status as transgender or non-binary, citizenship or immigration status, union membership, or status as a victim of crime; (f) passwords to any online accounts; (g) credentials to any financial accounts; (h) tax return data; (i) any payment card information subject to the Payment Card Industry Data Security Standard; (j) Personal Data of minors under 18 years of age; (k) data relating to criminal convictions and offenses; or (l) any other information that falls within any special category of personal data (as defined in the GDPR);
12. alter, remove or violate any copyright or other intellectual property notice appearing in connection with the Services;
13. publicly display any content through use of the Services, other than Output displayed to end users of Customer’s own products and services where permitted by the applicable Order;
14. allow any person who is not an employee or independent contractor of Customer to access or use the Services, other than end users of Customer’s own products and services who interact with Output where permitted by the applicable Order;
15. place orders through Checkout using false, misleading or incomplete information, on behalf of any person that Customer is not authorized to bind, or in order to evade Prime Intellect’s sanctions, export control or know-your-customer screening; or
16. access or use the Services for any purpose not expressly set out in this Agreement.

Exhibit BService Catalogue

This Exhibit B describes the categories of Services that Prime Intellect offers, for reference. It does not obligate Prime Intellect to provide, or Customer to purchase, any Service, and not every Service is available through Checkout. Services are provided only under an Order, and the scope of any Service is as set out in that Order and any applicable Service Terms. Prime Intellect may add, modify or discontinue offerings from time to time, subject to its commitments under Orders then in effect.