Terms of Service

Last Updated April 3, 2024 These Subscription Services Terms and Conditions (these “Terms”) state the terms and conditions by which Poggio Labs, Inc. (“Poggio Labs”) will provide, and you (”Customer” or “You”) will receive, access to the Subscription Services (as defined below). Poggio Labs and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”. If you are accessing and using the Subscription Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that entity to these Terms. In that case, “Customer” and “You” will refer to that entity.

1. DEFINITIONS.

(a) “AUP” means the Poggio Labs’ Acceptable Use Policy accessible at https://docs.poggio.io/legal/acceptable-use-policy, as updated from time to time, and which forms part of these Terms.

(b) “Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Customer Materials; or (ii) Customer’s and/or its Authorized Users’ Use of the Subscription Services, including, without limitation, any usage data or trends with respect to the Subscription Services.

(c) “Authorized User” means an employee or contractor whom Customer has authorized to Use the Subscription Services.

(d) “Poggio Labs IP” means the Subscription Services, the underlying software provided in conjunction with the Subscription Services, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Subscription Services, Documentation, Account Data, and Aggregate Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.

(e) "Customer Materials" means all information, data, content, inputs, prompts and other materials, in any form or medium, that is submitted, transmitted or otherwise provided by or on behalf of Customer through the Subscription Services or to Poggio Labs in connection with Customer’s Use of the Subscription Services, but excluding, for clarity, Aggregate Data and any other Poggio Labs IP.

(f) "Documentation" means the operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by Poggio Labs to Customer (including any revised versions thereof) relating to the Subscription Services, which may be updated from time to time.

(g) "Intellectual Property Rights" means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.

(h) "Licensed Volume" means the limits, volume or other measurement or conditions of permitted Use for the applicable Subscription Service as set forth in the applicable Order Form, including any limits on the number of Authorized Users permitted to Use the Subscription Services based on Customer’s subscription tier, if applicable.

(i) "Order Form" means a (i) mutually executed order form or other mutually agreed upon ordering document; (ii) purchase order issued by Customer and accepted by Poggio Labs in writing; or (iii) quote issued by Poggio Labs and accepted by Customer, whether accepted in writing or through a digital signature platform (e.g., DocuSign), in each case which references these Terms and sets forth the applicable Subscription Services to be provided by Poggio Labs.

(j) "Person" means any individual, corporation, partnership, trust, limited liability company, association, governmental authority or other entity.

(k) "Subscription Services" means Poggio Labs’ proprietary software platform designed to support organizations’ sales functions and customer relationships, as more particularly described or identified in the applicable Order Form.

(l) "Use" means to use and/or access the Subscription Services in accordance with these Terms, the AUP and the Documentation.

2. SUBSCRIPTION SERVICES; ACCESS AND USE.

(a) Subscription Services. Subject to the terms and conditions of these Terms, Poggio Labs hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section ‎14(e)) right to Use the Subscription Services during the Term, solely for Customer’s internal business purposes in accordance with, and subject to, the applicable Licensed Volume.

(b) Use Restrictions. Customer will not at any time and will not permit any Person (including, without limitation, Authorized Users) to, directly or indirectly: (i) use the Subscription Services in any manner beyond the scope of rights expressly granted in these Terms; (ii) modify or create derivative works of the Subscription Services or Documentation, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode, engage in model extraction or stealing attacks, prompt injection attacks or otherwise attempt to derive or gain improper access to any software components, models, algorithms or systems of the Subscription Services, in whole or in part; (iv) frame, mirror, sell, resell, rent or lease use of the Subscription Services to any other Person, or otherwise allow any Person to use the Subscription Services for any purpose other than for the benefit of Customer in accordance with these Terms; (v) use the Subscription Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable law; (vi) interfere with, or disrupt the integrity or performance of, the Subscription Services, or any data or content contained therein or transmitted thereby; or (vii) access or search the Subscription Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Subscription Services features provided by Poggio Labs for use expressly for such purposes.

(c) Authorized Users. Customer will not allow any Person other than Authorized Users to Use the Subscription Services. Customer may permit Authorized Users to Use the Subscription Services, provided that (i) the Use, including the number of Authorized Users, does not exceed the applicable Licensed Volume; and (ii) Customer ensures each Authorized User complies with all applicable terms and conditions of these Terms and Customer is responsible for acts or omissions by Authorized Users in connection with their Use of the Subscription Services. Customer will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Subscription Services in accordance with customary security protocols, and will promptly notify Poggio Labs if Customer knows or reasonably suspects that any user name and/or password has been compromised. Poggio Labs may process personal information about Customer’s and/or its Authorized Users’ Use of the Subscription Services (“Account Data”) in accordance with its Privacy Notice available at https://docs.poggio.io/legal/privacy-policy. For example, Account Data includes an Authorized User’s login data and related usage data. Account Data is not Customer Materials and, for clarity, the Poggio Labs’ Privacy Notice does not apply to Customer Materials.

(d) Third-Party Services. Certain features and functionalities within the Subscription Services may allow Customer and its Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”) through the Subscription Services. Poggio Labs does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Subscription Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. Customer is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents (including for use of access credentials) necessary for Customer to use the Third- Party Services in connection with the Subscription Services.

(e) Free Trials. Poggio Labs may offer access to the Subscription Services on a free trial basis (“Free Trial”) for a specified period of time. If Poggio Labs offers You a Free Trial, the specific terms of your Free Trial (including its duration) will be provided at signup and your use of the Free Trial is subject to your compliance with such specific terms. A Free Trial is only available to You if You have not previously signed up to use the Subscription Services. Once the Free Trial ends, your continued use of the Subscription Services will be subject to the payment of fees in accordance with Section 3. Poggio Labs reserves the right to modify or terminate Free Trials at any time, without notice and in its sole discretion. Section 8 (Indemnification) is not applicable during a Free Trial.

3. FEES AND PAYMENT.

(a) Fees. Customer will pay Poggio Labs the non-refundable fees set forth in the relevant Order Form in accordance with the terms therein (“Fees”) and without offset or deduction. Poggio Labs reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then-current Renewal Term, upon thirty (30) days’ prior notice to Customer (which may be sent by email). Except as otherwise provided in the relevant Order Form, Poggio Labs will issue monthly invoices to Customer during the Term, and Customer will pay all amounts set forth on any such invoice no later than thirty (30) days after the date of such invoice. If Customer has signed up for automatic billing, Poggio Labs will charge Customer’s selected payment method (such as a credit card, debit card, gift card/code, or other method available in Customer’s home country) for any Fees on the applicable payment date, including any applicable taxes. If Poggio Labs cannot charge Customer’s selected payment method for any reason (such as expiration or insufficient funds), Customer remains responsible for any uncollected amounts, and Poggio Labs will attempt to charge the payment method again as Customer may update its payment method information. In accordance with local law, Poggio Labs may update information regarding Customer’s selected payment method if provided such information by Customer’s financial institution. If Customer has a good faith dispute regarding the accuracy of any invoice, Customer shall (i) pay such amount of the invoice it believes in good faith to be correct and accurate and (ii) within twenty (20) days’ receipt of the invoice, provide written notice to Poggio Labs stating the reasons why the remaining disputed amount is inaccurate, along with any relevant supporting documentation. In the event the Parties are unable to resolve such dispute within ten (10) days from the date that Customer provides written notice of an alleged inaccuracy in the invoice, either Party may pursue any remedy available to enforce its rights under these Terms, notwithstanding any other provision in these Terms. In the event it is later determined or agreed that Customer must or will pay the disputed amount under any particular invoice(s), Customer shall pay interest from and including the original payment due date on such invoice until, but excluding, the date the dispute amount is received by Poggio Labs, at a rate of 1.5% per month.

(b) Payments. Payments due to Poggio Labs under these Terms must be made in U.S. dollars by check, wire transfer of immediately available funds to an account designated by Poggio Labs or such other payment method mutually agreed by the Parties. Customer is responsible for all bank, foreign transaction or similar fees incurred in paying any invoice under these Terms or related Order Form to Poggio Labs. All payments are non-refundable and neither Party will have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other Party under these Terms. If Customer fails to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law and Poggio Labs may suspend Subscription Services until all payments are made in full. Customer will reimburse Poggio Labs for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest.

(c) Taxes. Customer is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Customer to Poggio Labs hereunder, other than any taxes imposed on Poggio Labs’ income. Without limiting the foregoing, in the event that Customer is required to deduct or withhold any taxes from the amounts payable to Poggio Labs hereunder, Customer will pay an additional amount, so that Poggio Labs receives the amounts due to it hereunder in full, as if there were no withholding or deduction.

4. CONFIDENTIAL INFORMATION.

(a) As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with these Terms, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, non-public aspects of the Subscription Services and the Documentation will be deemed Confidential Information of Poggio Labs, and Customer Materials will be deemed Confidential Information of the Customer. However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party.

(b) The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under these Terms; provided that Poggio Labs may use and modify Confidential Information of Customer in deidentified form for purposes of developing and deriving Aggregate Data. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under these Terms and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in these Terms, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.

(c) Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of these Terms for as long as such Confidential Information remains subject to trade secret protection under applicable law.

(d) The terms and conditions of these Terms will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.

5. SUPPORT. Poggio Labs will provide Customer with reasonable technical support for the Subscription Services in accordance with the support terms set forth in the applicable Order Form.

6. CUSTOMER MATERIALS AND DATA.

(a) Poggio Labs IP. Subject to the limited rights expressly granted hereunder, Poggio Labs reserves and, as between the Parties will solely own, the Poggio Labs IP and all rights, title and interest in and to the Poggio Labs IP. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.

(b) Customer Materials. Poggio Labs acknowledges that, as between Customer and Poggio Labs and except as set forth in this Section 6(b), Customer owns and retains all right, title and interest in and to all Customer Materials. Customer hereby grants Poggio Labs a non-exclusive, worldwide, non-transferable (except in compliance with Section ‎14(e)), sublicensable (only to Poggio Labs’ third party providers which provide services to Poggio Labs in connection the Subscription Services), and royalty-free right and license to use, host, reproduce, publicly display, publicly perform, and modify the Customer Materials solely for the purpose of hosting, operating, providing, and assessing the performance of the Subscription Services during the Term. For clarity, at no time will Poggio Labs use or provide the Customer Materials to train or finetune its or third-parties’ foundational large language models powering and underpinning the Subscription Services.

(c) Output Specific Terms. Customer acknowledges that the Subscription Services will generate automated responses and materials in response to Customer Materials (collectively, the “Output”). As between the Parties, to the extent permitted by applicable law, subject to Section 6(a) and subject to Customer’s compliance with these Terms, Customer owns such Output and Poggio Labs assigns to Customer its right, title and interest in and to the Output. Customer agrees that Poggio Labs may use the Output to provide, maintain and assess the performance of the Subscription Services during the Term and to comply with applicable law.

(d) Personal Data. To the extent Customer Materials are “personal data” or “personal information” under applicable data protection laws, each party shall comply with the Data Processing Addendum available at https://docs.poggio.io/legal/data-processing-addendum the terms of which are incorporated herein by reference.

(e) Customer’s Representations and Warranties. Customer represents and warrants that (i) it has obtained and will obtain and continue to have, during the Term, all necessary rights, authority and licenses for the access to and use of the Customer Materials (including any personal data provided or otherwise collected pursuant to Customer’s privacy policy) as contemplated by these Terms and (ii) Poggio Labs’ use of the Customer Materials in accordance with these Terms will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party.

(f) Feedback. From time to time Customer or its employees, contractors, or representatives may provide Poggio Labs with suggestions, comments, feedback or the like with regard to the Subscription Services (collectively, “Feedback”). Customer hereby grants Poggio Labs a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Poggio Labs’ business purposes, including, without limitation, the testing, development, maintenance and improvement of the Subscription Services.

7. REPRESENTATIONS AND WARRANTIES. Each Party hereby represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into these Terms and (ii) the execution, delivery and performance of these Terms and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party.

8. IDEMNIFICATION.

(a) Poggio Labs Indemnification. Subject to Section 8(b), Poggio Labs will defend Customer against any claim, suit or proceeding brought by a third party (“Claims”) alleging that Customer’s Use of the Subscription Services infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by Poggio Labs (including reasonable attorneys’ fees) resulting from such Claim.

(b) Exclusions. Poggio Labs’ obligations under Section 8(a) will not apply if the underlying third-party Claim arises from or as a result of: (i) Customer’s breach of these Terms, negligence, willful misconduct or fraud; (ii) any Customer Materials; (iii) Customer’s failure to use any enhancements, modifications, or updates to the Subscription Services that have been provided by Poggio Labs; (iv) modifications to the Subscription Services by anyone other than Poggio Labs; or (v) combinations of the Subscription Services with software, data or materials not provided by Poggio Labs.

(c) IP Remedies. If Poggio Labs reasonably believes the Subscription Services (or any component thereof) could infringe any third party’s Intellectual Property Rights, Poggio Labs may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Subscription Services, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Customer to continue Use. If Poggio Labs determines that neither alternative is commercially practicable, Poggio Labs may terminate these Terms, in its entirety or with respect to the affected component, by providing written notice to Customer. In the event of any such termination, Poggio Labs will refund to Customer a pro-rata portion of the Fees that have been paid for the unexpired portion. The rights and remedies set forth in this Section 8 will constitute Customer’s sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the Subscription Services.

(d) Customer Indemnification. Customer will defend Poggio Labs against Claims arising from (i) any Customer Materials, including, without limitation, (A) any Claim that the Customer Materials infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of Customer Materials violates any applicable law, rule or regulation; (ii) any of Customer’s products or services; and (iii) Use of the Subscription Services by Customer or its Authorized Users in a manner that is not in accordance with these Terms, the AUP or the Documentation, including, without limitation, any breach of the license restrictions in Section 2(b) and Section 6(c), and in each case, will indemnify and hold harmless Poggio Labs against any damages and costs awarded against Poggio Labs or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim.

(e) Indemnification Procedures. The Party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.

9. DISCLAIMERS.

(a) General. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SUBSCRIPTION SERVICES, AND OTHER POGGIO LABS IP ARE PROVIDED ON AN “AS IS” BASIS, AND POGGIO LABS MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE POGGIO LABS IP, THE SUBSCRIPTION SERVICES, OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, POGGIO LABS HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, POGGIO LABS HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE SUBSCRIPTION SERVICES WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED.

(b) Similarity, Accuracy and Appropriateness of Output. Due to the nature of machine learning, Output may not be unique and the Subscription Services may generate the same or similar output for Poggio Labs or a third party. GIVEN THE PROBABILISTIC NATURE OF MACHINE LEARNING, THE SUBSCRIPTION SERVICES MAY IN SOME SITUATIONS PRODUCE OUTPUT THAT IS INACCURATE, INCORRECT, OFFENSIVE OR OTHERWISE UNDESIRABLE. THE ACCURACY, QUALITY AND COMPLIANCE WITH APPLICABLE LAW OF THE OUTPUT IS DEPENDENT UPON AND COMMENSURATE WITH THAT OF THE INPUT PROVIDED AND CUSTOMER’S COMPLIANCE WITH THESE TERMS, AND NOTWITHSTANDING ANYTHING ELSE HEREIN, POGGIO LABS WILL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR ANY LOSS OR DAMAGES RELATING TO OR ARISING FROM INPUT PROVIDED BY CUSTOMER OR OTHER CUSTOMER MATERIALS, THE OUTPUT OR THEIR USE. Customer shall evaluate the content, nature, tone and accuracy of any Output as appropriate for the applicable use case, including by using human review of the Output.

10. LIMITATIONS OF LIABILITY.

(a) Exclusion of Damages. EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILLFUL MISCONDUCT BY EITHER PARTY, (III) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS, OR (IV) BREACH OF THE LICENSE RESTRICTIONS IN SECTIONS 2(B) AND 6(C) NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, THE POGGIO LABS IP OR THE PROVISION OF THE SUBSCRIPTION SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

(b) Total Liability. IN NO EVENT WILL POGGIO LABS’ TOTAL LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS IN CONNECTION WITH THESE TERMS, THE POGGIO LABS IP OR THE PROVISION OF THE SUBSCRIPTION SERVICES EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO POGGIO LABS IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT POGGIO LABS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

(c) Basis of the Bargain. THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 10 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN POGGIO LABS AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.

11. TERM AND TERMINATION.

(a) Term. The initial term of these Terms begins on the Effective Date and expires at the end of the Initial Term specified in the relevant Order Form (the “Initial Term”). Following the Initial Term, these Terms will automatically renew for additional periods of one (1) year (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either Party provides the other with at least thirty (30) days’ written notice of its intent not to renew these Terms prior to the end of the then- current Term.

(b) Termination. Either Party may terminate these Terms, effective on written notice to the other Party, if the other Party materially breaches these Terms, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.

(c) Survival. This Section 11(c) and Sections 1, 2(b), 2(c), 3, 4, 6(b), 6(c), 6(d), 6(e), 6(f), 7, 8, 9, 10, 11(d), 13 and 14 survive any termination or expiration of these Terms.

(d) Effect of Termination. Upon expiration or termination of these Terms: (i) the rights granted pursuant to Section 2(a) will terminate; and (ii) Customer will return or destroy, at Poggio Labs’ sole option, all Poggio Labs Confidential Information in its possession or control, including permanent removal of such Poggio Labs Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Customer’s possession or under Customer’s control, and at Poggio Labs’ request, certify in writing to Poggio Labs that the Poggio Labs Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due or otherwise accrued through the effective date of expiration or termination, or entitle Customer to any refund. Customer is responsible for exporting its Customer Materials from the Subscription Services upon expiration or termination of these Terms; Poggio Labs may delete all such Customer Materials sixty (60) days after such expiration or termination.

12. TRADEMARKS. Customer hereby grants Poggio Labs a limited, non-exclusive, royalty-free license to use and display Customer’s name, designated trademarks and associated logos (the “Customer Marks”) during the Term in connection with (i) the hosting, operation and maintenance of the Subscription Services; and (ii) Poggio Labs’ marketing and promotional efforts for its products and services, including by publicly naming Customer as a customer of Poggio Labs and in case studies. All goodwill and improved reputation generated by Poggio Labs’ use of the Customer Marks inures to the exclusive benefit of Customer. Poggio Labs will use the Customer Marks in the form stipulated by Customer and will conform to and observe such standards as Customer prescribes from time to time in connection with the license granted hereunder.

13. NOTICES. All notices required or permitted under these Terms will be in writing, will reference these Terms, and will be sent to the relevant address set forth below, if to Poggio Labs, or to the relevant address set forth on the Order Form, if to Customer, or to such other address as may be specified by the relevant Party to the other Party in accordance with this Section ‎13. Such notices will be deemed given: (i) when delivered personally, including, if by email, upon delivery to the recipient’s inbox; (ii) one (1) business day after deposit with a nationally recognized express courier, with written confirmation of receipt; or (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid.

If to Poggio Labs: Poggio Labs, Inc. 100 Pine Street, Suite 1250 San Francisco, CA 94111 Attention: Janice Tam, Head of Finance and Operations Email: [e-mail].

14. GENERAL. (a) Entire Agreement. These Terms are the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. Poggio Labs may amend these Terms at any time during the Term upon notice to Customer. Customer’s continued use of the Subscription Services after receipt of such notice will mean that Customer accepted and agreed to the changes. (b) Waiver. Either Party’s failure to enforce any provision of these Terms will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of these Terms will be effective unless it is in writing and signed by the Party granting the waiver. (c) Severability. If any provision of these Terms is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of these Terms will remain in full force and effect. (d) Governing Law; Jurisdiction. These Terms will be governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply. Any legal action or proceeding arising under these Terms will be brought exclusively in the federal or state courts located in Northern District of California and the Parties irrevocably consent to the personal jurisdiction and venue therein. (e) Assignment. Neither Party may assign or transfer these Terms, by operation of law or otherwise, without the other Party’s prior written consent. Any attempt to assign or transfer these Terms without such consent will be void. Notwithstanding the foregoing, either Party may assign or transfer these Terms to a third party that succeeds to all or substantially all of the assigning Party’s business and assets relating to the subject matter of these Terms, whether by sale, merger, operation of law or otherwise. Subject to the foregoing, these Terms is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns. (f) Equitable Relief. Each Party agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or, in the case of Customer, Section 2(b), would cause the other Party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other Party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise. (g) Force Majeure. Neither Party will be responsible for any failure or delay in the performance of its obligations under these Terms (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God. (h) Subcontracting. Poggio Labs may use subcontractors, and other third-party providers (“Subcontractors”) in connection with the performance of its own obligations hereunder as it deems appropriate; provided that Poggio Labs remains responsible for the performance of each such Subcontractor. Notwithstanding anything to the contrary in these Terms, with respect to any third-party vendors including any hosting (e.g. AWS) or payment vendors (e.g. PayPal), Poggio Labs will use commercially reasonable efforts to guard against any damages or issues arising in connection with such vendors, but will not be liable for the acts or omissions of such third-party vendors except to the extent that it has been finally adjudicated that such damages or issues are caused directly from the gross negligence or willful misconduct of Poggio Labs. (i) Export Regulation. Customer affirms that it is not named on, owned by, or acting on behalf of any U.S. government denied-party list, and it agrees to comply fully with all relevant export control and sanctions laws and regulations of the United States (“Export Laws”) to ensure that neither the Subscription Services, software, any Customer Materials, nor any technical data related thereto is: (i) used, exported or re-exported directly or indirectly in violation of Export Laws; or (ii) used for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, or biological weapons proliferation, missile systems or technology, or restricted unmanned aerial vehicle applications. Customer will complete all undertakings required by Export Laws, including obtaining any necessary export license or other governmental approval. (j) U.S. Government End Users. The Subscription Services, software and Documentation were developed solely at private expense and are “commercial products”, “commercial items”, or “commercial computer software” as defined in the Federal Acquisition Regulation 2.101 and other relevant government procurement regulations including agency supplements. Any use, duplication, or disclosure of the software or its documentation by or on behalf of the U.S. government is subject to restrictions as set forth in these Terms as consistent with federal law and regulations. If these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, you will immediately discontinue your use of the software or its documentation. (k) Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing in these Terms will be construed to establish any partnership, joint venture or agency relationship between the Parties. Neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent. (l) No Third-Party Beneficiaries. No provision of these Terms is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the Parties and their respective successors and assigns.