Master Subscription Agreement

Terms and Conditions

These Master Subscription Agreement Terms and Conditions (these "Terms and Conditions") are entered into by and between NeuBird AI, Inc., a Delaware corporation ("NeuBird AI"), and the counterparty identified as the customer in the applicable Order Form ("Customer"). These Terms and Conditions, together with all Order Forms (as defined below), constitute this "Agreement". If you are accepting these Terms and Conditions or an Order Form on behalf of your employer or another entity (which will be deemed to the case if you sign up for a NeuBird AI Product (as defined below) using an email address from your employer or such entity), then the "Customer" under this Agreement will be such employer or other entity, and you represent and warrant that (a) you have read and understand this Agreement, (b) you have full legal authority to bind your employer or such entity to this Agreement and (c) you agree to this Agreement on behalf of your employer or such entity.

1. Definitions

1.1 The following terms, when used in this Agreement will have the following meanings:

"Affiliate" means an entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, so long as such Control exists. For the purposes of this definition, "Control" means beneficial ownership of 50% or more of the voting power or equity in an entity.

"Confidential Information" means any information disclosed by either party that is marked or otherwise designated as confidential or proprietary or that should otherwise be reasonably understood to be confidential in light of the nature of the information and the circumstances surrounding disclosure. However, "Confidential Information" will not include any information that (a) is in the public domain through no fault of the receiving party; (b) was properly known to the receiving party, without restriction, prior to disclosure by the disclosing party; (c) was properly disclosed to the receiving party, without restriction, by another person with the legal authority to do so; or (d) is independently developed by the receiving party without use of or reference to the disclosing party's Confidential Information.

"Customer Materials" means the IT telemetry data and information that Customer submits to the NeuBird AI Product for processing.

"Documentation" means NeuBird AI's then-current standard usage documentation for the NeuBird AI Product.

"Effective Date" means the date of the initial Order Form entered into between Customer and NeuBird AI.

"Order Form" means an ordering document or online order entered into between Customer and NeuBird AI, or online ordering flow completed by Customer, in each case that sets forth the applicable NeuBird AI Product to which Customer is subscribing, pricing therefor and subscription term, and that references these Terms and Conditions.

"NeuBird AI Product" means the artificial intelligence (AI)-based information technology (IT) operations cloud platform developed by NeuBird AI, as further described in the applicable Order Form.

"Third Party Platform" means any product, add-on or platform not provided by NeuBird AI that Customer elects to use with the NeuBird AI Product.

"User" means anyone that Customer allows to use its accounts for the NeuBird AI Product, consisting of Customer's employees and contractors (solely for purposes of providing services to Customer).

2. NeuBird AI Product

2.1 Provision of NeuBird AI Product

Subject to this Agreement, NeuBird will make the NeuBird Product available to Customer pursuant to this Agreement, the applicable Order Form and the service level agreement located at http://neubird.ai/sla, and hereby grants Customer a non-exclusive right to access and use the NeuBird Product for its internal business purposes during the applicable subscription term. Customer may permit Users to use the NeuBird Product on its behalf. Customer is responsible for provisioning and managing its User accounts, its Users' actions through the NeuBird Product and their compliance with this Agreement.

2.2 Data Security

NeuBird AI will maintain a security program materially in accordance with industry standards that is designed to (i) ensure the security and integrity of Customer Materials; (ii) protect against threats or hazards to the security or integrity of Customer Materials; and (iii) prevent unauthorized access to Customer Materials. In furtherance of the foregoing, NeuBird AI will maintain the administrative, physical and technical safeguards to protect the security of Customer Materials.

2.3 Customer Responsibilities

(a) Customer acknowledges that NeuBird AI's provision of the NeuBird AI Product is dependent on Customer providing all reasonably required cooperation, and Customer will provide all such cooperation in a diligent and timely manner. Customer will (i) use commercially reasonable efforts to prevent unauthorized access to or use of the NeuBird AI Product and notify NeuBird AI promptly of any such unauthorized access or use or any other known or suspected breach of security or misuse of the NeuBird AI Product and (ii) be responsible for obtaining and maintaining any equipment, software and ancillary services needed to connect to, access or otherwise use the NeuBird AI Product, including as set forth in the Documentation. Customer will be solely responsible for its failure to maintain such equipment, software and services, and NeuBird AI will have no liability for such failure (including under any service level agreement). As between the parties, Customer is responsible for the content and accuracy of Customer Materials.

(b) The NeuBird AI Product is not designed or developed for use in high-risk, hazardous environments requiring fail-safe performance, including in the operation of nuclear facilities, aircraft navigation or control systems, air traffic control, or weapons systems, or any other application in which the failure of the NeuBird AI Product could lead to severe physical or environmental damages ("High Risk Activities"). Customer will not use the NeuBird AI Product for High Risk Activities. In addition, the NeuBird AI Product is not intended to be used to analyze and process personal data, and Customer agrees not to knowingly include any personal data in any of its Customer Materials.

2.4 Affiliates

Any Affiliate of Customer will have the right to enter into an Order Form and this Agreement will apply to each such Order Form. With respect to any such Order Form, such Affiliate becomes a party to this Agreement and references to Customer in this Agreement are deemed to be references to such Affiliate. Each Order Form is a separate obligation of the Customer entity that enters into such Order Form, and no other Customer entity has any liability or obligation under such Order Form.

3. Fees

3.1 Fees

Customer will pay NeuBird AI the fees set forth in the applicable Order Form. Customer will pay those amounts due and not disputed in good faith within thirty (30) days of the date of receipt of the applicable invoice (the "Payment Period"), unless a specific date for payment is set forth in such Order Form, in which case payment will be due on the date specified. Except as otherwise specified herein or in such Order Form, payment obligations are non-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable. If Customer disputes an invoice in good faith, it will notify NeuBird AI within the Payment Period and the parties will seek to resolve the dispute as soon as reasonably practicable. NeuBird AI may provide Customer with written notice of a change or increase in pricing for such Order Form at least sixty (60) days prior to the end of the then-current subscription term, and such modified pricing will become effective thereafter at the time of the renewal.

3.2 Late Payment

NeuBird AI may suspend access to the NeuBird AI Product immediately upon notice if Customer fails to pay any amounts hereunder at least five (5) days past the applicable due date. If NeuBird AI has not received payment within five (5) days after the applicable due date, interest will accrue on past due amounts at the rate of one percent (1%) per month, but in no event greater than the highest rate of interest allowed by law, calculated from the date such amount was due until the date that payment is received by NeuBird AI.

3.3 Taxes

All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively "Taxes"). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of NeuBird AI. Customer will not withhold any taxes from any amounts due to NeuBird AI.

4. Proprietary Rights and Confidentiality

4.1 Proprietary Rights

As between the parties, NeuBird AI exclusively owns all right, title and interest in and to the NeuBird AI Product, System Data and NeuBird AI's Confidential Information, and Customer exclusively owns all right, title and interest in and to the Customer Materials, output produced specifically for Customer via the use of the NeuBird AI Product by Customer (which will constitute Customer Materials for purposes hereof, notwithstanding anything herein) and Customer's Confidential Information. "System Data" means data collected by NeuBird AI regarding the NeuBird AI Product that may be used to generate logs, statistics or reports regarding the performance, availability, usage, integrity or security of the NeuBird AI Product.

4.2 Feedback

Customer may from time to time provide NeuBird AI suggestions or comments for enhancements or improvements, new features or functionality or other feedback ("Feedback") with respect to the NeuBird AI Product. NeuBird AI will have full discretion to determine whether or not to proceed with the development of any requested enhancements, new features or functionality. NeuBird AI will have the full, unencumbered right, without any obligation to compensate or reimburse Customer, to use, incorporate and otherwise fully exercise and exploit any such Feedback in connection with its products and services. All Feedback is provided "AS IS" and NeuBird AI will not publicly identify Customer as the source of Feedback without Customer's permission.

4.3 Metadata; Product Improvements

Customer agrees that, notwithstanding anything herein, NeuBird AI is hereby granted the right to collect, retain and analyze anonymized metadata from Customer's use of the NeuBird AI Product to improve services during and after contract terms.

5. Confidentiality; Technology Restrictions

5.1 Confidentiality

Each receiving party agrees that it will use the Confidential Information of the disclosing party solely in accordance with the provisions of this Agreement and it will not disclose the same to any third party without the disclosing party's prior written consent, except as otherwise permitted hereunder. However, the receiving party may disclose such Confidential Information:

(a) to its employees and other representatives who have a need to know and are legally bound to keep such information confidential by confidentiality obligations consistent with those of this Agreement; and

(b) as required by law (in which case the receiving party will provide the disclosing party with prior written notification thereof, will provide the disclosing party with the opportunity to contest such disclosure, and will use its reasonable efforts to minimize such disclosure to the extent permitted by applicable law).

Neither party will disclose the terms of any Order Forms to any third party, except that either party may confidentially disclose such terms to actual or potential lenders, investors or acquirers.

5.2 Technology Restrictions

Customer will not directly or indirectly:

(a) reverse engineer, decompile, disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, or permit or assist any third party to create or derive, the source code underlying the NeuBird AI Product;

(b) attempt to probe, scan or test the vulnerability of the NeuBird AI Product, breach the security or authentication measures of the NeuBird AI Product without proper authorization or wilfully render any part of the NeuBird AI Product unusable;

(c) use or access the NeuBird AI Product to develop a product or service that is competitive with NeuBird AI's products or services or engage in competitive analysis or benchmarking;

(d) transfer, distribute, resell, lease, license, or assign the NeuBird AI Product or otherwise offer the NeuBird AI Product on a standalone basis; or

(e) otherwise use the NeuBird AI Product in violation of applicable law (including any export law) or outside the scope expressly permitted hereunder and in the applicable Order Form.

6. Warranties and Disclaimers

6.1 Mutual

Each party warrants that (a) it has the legal power and authority to enter into this Agreement and (b) it will use industry-standard measures to avoid introducing viruses or other malicious code into the NeuBird AI Product.

6.2 NeuBird AI

NeuBird AI warrants that the NeuBird AI Product will perform materially as described in the Documentation and NeuBird AI will not materially decrease the overall functionality of the NeuBird AI Product during the applicable subscription term (the "Performance Warranty"). NeuBird AI will use reasonable efforts to correct a verified breach of the Performance Warranty reported by Customer. If NeuBird AI fails to do so within 30 days after Customer's warranty report, then either party may terminate the applicable Order Form as it relates to the non-conforming NeuBird AI Product, in which case NeuBird AI will provide Customer a pro rata refund of any prepaid subscription fees corresponding to the terminated portion of the applicable subscription term (for the Performance Warranty). To receive these remedies, Customer must report a breach of warranty in reasonable detail within 30 days after discovering the issue in the NeuBird AI Product. These procedures are Customer's exclusive remedies and NeuBird AI's sole liability for breach of the Performance Warranty.

6.3 Customer

Customer warrants that it has all rights necessary to provide any information, data or other materials that it provides hereunder, and to permit NeuBird AI to use the same as contemplated hereunder.

6.4 Disclaimers

EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. NEUBIRD DOES NOT REPRESENT OR WARRANT THAT THE NEUBIRD PRODUCT WILL BE ERROR-FREE AND CUSTOMER ACKNOWLEDGES THAT THE OUTPUTS AND INSIGHTS PROVIDED BY THE NEUBIRD PRODUCT DO NOT CONSTITUTE PROFESSIONAL ADVICE. NEUBIRD IS NOT RESPONSIBLE OR LIABLE FOR ANY THIRD PARTY PLATFORMS.

6.5 No-Charge Products

NeuBird AI may offer certain NeuBird AI Products at no charge, including free accounts, trial use and pre-release, alpha or beta versions or features (collectively, "No-Charge Products"). Customer's use of No-Charge Products is subject to any additional terms that NeuBird AI may specify. Except as otherwise set forth in this Section, these Terms and Conditions apply to No-Charge Products. NeuBird AI may modify or terminate Customer's right to use No-Charge Products at any time. NOTWITHSTANDING ANYTHING TO THE CONTRARY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEUBIRD DISCLAIMS ALL OBLIGATIONS, WARRANTIES AND LIABILITIES WITH RESPECT TO NO-CHARGE PRODUCTS, INCLUDING ANY SERVICE LEVEL OR INDEMNITY OBLIGATIONS, AND NEUBIRD'S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER IN RESPECT OF NO-CHARGE PRODUCTS WILL BE US$100.

7. Indemnification

7.1 Indemnity by NeuBird AI

NeuBird AI will defend Customer against any claim, demand, suit, or proceeding ("Claim") made or brought against Customer by a third party alleging that the use of the NeuBird AI Product as permitted hereunder infringes or misappropriates a United States patent, copyright or trade secret and will indemnify Customer for any damages finally awarded against Customer (or any settlement approved by NeuBird AI) in connection with any such Claim; provided that (a) Customer will promptly notify NeuBird AI of such Claim, (b) NeuBird AI will have the sole and exclusive authority to defend and/or settle any such Claim (provided that NeuBird AI may not settle any Claim without Customer's prior written consent, which will not be unreasonably withheld, unless it unconditionally releases Customer of all related liability) and (c) Customer reasonably cooperates with NeuBird AI in connection therewith. If the use of the NeuBird AI Product by Customer has become, or in NeuBird AI's opinion is likely to become, the subject of any claim of infringement, NeuBird AI may at its option and expense (i) procure for Customer the right to continue using and receiving the NeuBird AI Product as set forth hereunder; (ii) replace or modify the NeuBird AI Product to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii) are not reasonably practicable, terminate the applicable Order Form and provide Customer a pro rata refund of any prepaid subscription fees corresponding to the terminated portion of the applicable subscription term. NeuBird AI will have no liability or obligation with respect to any Claim if such Claim is caused in whole or in part by (A) designs, guidelines, configurations, plans or specifications provided by Customer; (B) use of the NeuBird AI Product by Customer not in accordance with this Agreement; (C) modification of the NeuBird AI Product by or on behalf of Customer; (D) Customer Materials, or (E) the combination, operation or use of the NeuBird AI Product with other products or services where the NeuBird AI Product would not by itself be infringing (clauses (A) through (E), "Excluded Claims"). This Section states NeuBird AI's sole and exclusive liability and obligation, and Customer's exclusive remedy, for any claim of any nature related to infringement or misappropriation of intellectual property.

7.2 Indemnification by Customer

Customer will defend NeuBird AI against any Claim made or brought against NeuBird AI by a third party arising out of any Excluded Claims, and Customer will indemnify NeuBird AI for any damages finally awarded against NeuBird AI (or any settlement approved by Customer) in connection with any such Claim; provided that (a) NeuBird AI will promptly notify Customer of such Claim, (b) Customer will have the sole and exclusive authority to defend and/or settle any such Claim (provided that Customer may not settle any Claim without NeuBird AI's prior written consent, which will not be unreasonably withheld, unless it unconditionally releases NeuBird AI of all liability) and (c) NeuBird AI reasonably cooperates with Customer in connection therewith.

8. Limitation of Liability

EXCEPT FOR A PARTY'S INDEMNIFICATION OBLIGATIONS OR BREACH OF SECTION 5, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING DAMAGES FOR LOSS OF USE, LOST PROFITS OR INTERRUPTION OF BUSINESS, EVEN IF INFORMED OF THEIR POSSIBILITY IN ADVANCE, OR (B) EXCLUDING CUSTOMER'S PAYMENT OBLIGATIONS, ANY AGGREGATE LIABILITY IN EXCESS OF THE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.

9. Termination

9.1 Term

The term of this Agreement will commence on the date of the initial Order Form and continue until terminated as set forth below. The initial term of each Order Form will begin on the start date indicated in such Order Form and will continue for the subscription term set forth therein. Except as set forth in such Order Form, the term of such Order Form will automatically renew for successive renewal terms equal to the length of the initial term of such Order Form, unless either party provides the other party with written notice of non-renewal at least thirty (30) days prior to the end of the then-current term. If Customer does not agree to automatic renewals, Customer may opt-out of automatic renewals by providing written notice to NeuBird AI within fourteen (14) days of the date of the initial Order Form.

9.2 Termination

Each party may terminate this Agreement upon written notice to the other party if there are no Order Forms then in effect. Each party may also terminate this Agreement or the applicable Order Form upon written notice in the event (a) the other party commits any material breach of this Agreement or the applicable Order Form and fails to remedy such breach within thirty (30) days after written notice of such breach or (b) subject to applicable law, upon the other party's liquidation, commencement of dissolution proceedings or assignment of substantially all its assets for the benefit of creditors, or if the other party become the subject of bankruptcy or similar proceeding that is not dismissed within sixty (60) days.

9.3 Survival

Upon expiration or termination of this Agreement (a) all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such expiration or termination will survive, including the terms and conditions relating to proprietary rights and confidentiality, technology restrictions, disclaimers, indemnification, limitations of liability and termination and the general provisions below, and (b) each receiving party will return or destroy, at the disclosing party's option, any Confidential Information of such disclosing party in the receiving party's possession or control.

10. General

10.1 Insurance

NeuBird AI will, during the term of this Agreement, maintain in force the following insurance coverage at its own cost and expense:

(a) Statutory Worker's Compensation and Employer's Liability as required by state law with a minimum limit of $1,000,000 each accident / $1,000,000 each disease / $1,000,000 policy limit per occurrence, Disability and Unemployment Insurance, and all other insurance as required by law, including Employer's Liability Insurance with limits of no less than $1,000,000 per occurrence, or any amount required by applicable law, whichever is greater;

(b) Commercial General Liability, on an occurrence basis, including premises-operations, product completed-operations, broad form property damage, contractual liability, independent contractors and personal liability, with a minimum combined single limit of $10,000,000 per occurrence; and

(c) Professional Errors and Omissions and Cyber Liability coverage covering the NeuBird AI Product, with coverage limits of not less than $10,000,000 per claim or per occurrence/$10,000,000 aggregate, placed either on an "occurrence" basis or on a "claims made" basis.

10.2 Publicity

Customer agrees that NeuBird AI may refer to Customer's name and trademarks in NeuBird AI's marketing materials and website; however, NeuBird AI will not use Customer's name or trademarks in any other publicity (e.g., press releases, customer references and case studies) without Customer's prior written consent (which may be by email). If Customer does not agree to NeuBird AI's use of Customer's name or trademark in NeuBird AI's marketing materials, Customer may opt-out of such use by providing written notice to NeuBird AI within fourteen (14) days of the date of the initial Order Form.

10.3 Assignment; Delegation

Neither party hereto may assign or otherwise transfer this Agreement, in whole or in part, without the other party's prior written consent, except that either party may assign this Agreement without consent to a successor to all or substantially all of its assets or business related to this Agreement. Any attempted assignment, delegation, or transfer by either party in violation hereof will be null and void. Subject to the foregoing, this Agreement will be binding on the parties and their successors and assigns.

10.4 Amendment

NeuBird AI reserves the right in its sole discretion and at any time and for any reason to modify these Terms and Conditions. With respect to each Order Form, any modifications to these Terms and Conditions will become effective upon the date of Customer's next renewal of such Order Form. It is Customer's responsibility to review these Terms and Conditions from time to time for any changes or modifications. If Customer does not agree to the modified Terms and Conditions, Customer may provide notice of Customer's non-renewal at any point prior to the Customer's next renewal. Except as set forth in this Section, no amendment or modification to this Agreement, nor any waiver of any rights hereunder, will be effective unless assented to in writing by both parties.

10.5 Waiver

No waiver by either party of any breach or default hereunder will be deemed to be a waiver of any preceding or subsequent breach or default. Any such waiver will be only to the specific provision and under the specific circumstances for which it was given, and will not apply with respect to any repeated or continued violation of the same provision or any other provision. Failure or delay by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

10.6 Relationship

Nothing contained herein will in any way constitute any association, partnership, agency, employment or joint venture between the parties hereto, or be construed to evidence the intention of the parties to establish any such relationship. Neither party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third parties.

10.7 Unenforceability

If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly as possible in accordance with the stated intention of the parties, while the remainder of this Agreement will remain in full force and effect and bind the parties according to its terms.

10.8 Governing Law

This Agreement will be governed by the laws of the State of California, exclusive of its rules governing choice of law and conflict of laws. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods.

10.9 Notices

Any notice required or permitted to be given hereunder will be given in writing by personal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to the Customer may be sent to the address listed on the Customer's applicable Order Form or email address provided by Customer when Customer creates its NeuBird AI Product account. Notices to NeuBird AI must be sent to the following:

NeuBird AI, Inc. 155 Bovet, Suite 400 San Mateo, CA 94402 Attn: Legal

10.10 Entire Agreement

This Agreement (consisting of these Terms and Conditions and each Order Form) comprises the entire agreement between Customer and NeuBird AI with respect to its subject matter, and supersedes all prior and contemporaneous proposals, statements, sales materials or presentations and agreements (oral and written). No oral or written information or advice given by NeuBird AI, its agents or employees will create a warranty or in any way increase the scope of the warranties in this Agreement. In the event of a conflict between these Terms and Conditions and an Order Form, the terms of the Order Form will control.

10.11 Force Majeure

Neither party will be deemed in breach hereunder for any cessation, interruption or delay in the performance of its obligations due to causes beyond its reasonable control ("Force Majeure Event"), including earthquake, flood, or other natural disaster, act of God, labor controversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g., denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essential commodity or service required in the conduct of its business, or any change in or the adoption of any law, regulation, judgment or decree.

10.12 Interpretation

For purposes hereof, "including" means "including without limitation". Upon expiration or termination of this Agreement (a) all rights and obligations will immediately terminate except that any terms or conditions that by their nature should survive such expiration or termination will survive, including the terms and conditions relating to proprietary rights and confidentiality, technology restrictions, disclaimers, indemnification, limitations of liability and termination and the general provisions below, and (b) each receiving party will return or destroy, at the disclosing party's option, any Confidential Information of such disclosing party in the receiving party's possession or control.