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AIM Terms of Services

You are contracting with AIM Intelligent Machines, Inc., a Delaware corporation ("AIM") who provides certain hardware and software solutions ("AIM Products") and consulting, license and support services related to the AIM Products (collectively, "AIM Products and Services").

1. Software/Hardware License

1.1 License Grant

1.1.1 Subject to the terms and conditions of this Agreement, AIM hereby grants to Client, during the Subscription Term (as defined in any Statement of Work, Statement of Work, or Purchase Order mutually executed by the parties referencing this Agreement ("Statement of Work"), a non-exclusive, non-transferable, non-sublicenseable right and license to use the specific version(s) of AIM software (the "Software") and hardware product(s) (the "Hardware") designated in the Statement of Work for internal business purposes only, subject to any usage limitations or other restrictions set forth in the Statement of Work. Unless otherwise specified in an applicable Statement of Work, Client shall only be permitted to use the specific version(s) of the Software and Hardware set forth in such Statement of Work and shall not be entitled to use or access future versions or releases of the Software or Hardware without execution of an additional Statement of Work. This Agreement supersedes any other agreement between AIM and Client with respect to the Software and Hardware.

1.2 Restrictions on Use

1.2.1 Client may not: (a) sublicense, sell, resell, transfer, assign, distribute, share, lease, rent, make any commercial use of, outsource, use on a timeshare or service bureau, or use in an application service provider or managed service provider environment, or otherwise generate income from the Software and Hardware, unless otherwise specified in writing in a Statement of Work; (b) copy the Software onto any computing environment; (c) cause or permit the decompiling, disassembly, or reverse engineering of any portion of the Software or the Hardware, or attempt to discover or permit the discovery of any source code or other operational mechanisms of the Software (except any Software provided to Client in source code form); (d) modify, adapt, translate or create derivative works, nor allow any of those actions to occur, based on all or any part of the Software or the Hardware; (e) modify any proprietary rights notices which appear in the Software, the Hardware, or components thereof; or (f) use any Software or Hardware in violation of any applicable laws and regulations (including any export laws, restrictions, national security controls and regulations) or outside of the license scope set forth herein. Client shall not export or re-export any Software, Hardware, or technical data or any copy, portions or direct product thereof to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders.

1.3 Unauthorized Use

1.3.1 Client shall notify AIM immediately of any unauthorized use of any password or account or any other known or suspected breach of security or misuse of the Software and/or Hardware. Client is responsible for use of the Software and Hardware by any and all employees, contractors, or other users that it allows to access the Software and Hardware.

1.4 Support and Maintenance

1.4.1 During the Subscription Term of each such Statement of Work, AIM will provide Client with the Support and Maintenance for the Software and Hardware as set forth in such Statement of Work.

1.5 Feedback

1.5.1 Client may provide suggestions, feedback and other information to AIM regarding possible improvements in the operation, functionality or use of the Software and Hardware ("Feedback"). Client hereby grants to AIM the perpetual, irrevocable right to use, copy, modify, create derivative works of and otherwise fully exercise and exploit such Feedback solely for the purpose of (i) improving the operation, functionality or use of AIM's existing and future product offerings and commercializing such offerings; and (ii) publishing aggregated statistics about software and hardware quality, provided that no data in any such publication can be used to specifically identify Client, its employees or Client's software code or hardware configuration.

2. Professional Services

2.1 Services

2.1.1 From time to time, Client may order certain professional services pursuant to one or more Statement of Work that is accepted in writing by AIM that describes the specific services to be performed by AIM and any work product to be delivered by AIM (such services, the "Services"). Each Statement of Work will form a part of this Agreement, and will be subject to the terms and conditions contained herein. AIM will use commercially reasonable efforts to perform the Services specified in each Statement of Work in accordance with this Agreement and each Statement of Work. No change to any Statement of Work will be effective without the written agreement of each party.

2.2 Client Responsibilities

2.2.1 In connection with each Statement of Work, Client will provide AIM with access to Client's systems and facilities and otherwise cooperate with AIM, in each case, as reasonably required to permit AIM to perform the Services. Client will also make available to AIM any data, information and any other materials required by AIM to perform the Services, including any data, information or materials specifically identified in the Statement of Work (collectively, "Client Materials"). All such Client Materials are provided on an "as is" basis. AIM may use and analyze Client Materials to administer, improve, customize and enhance its products and services and may share aggregated information and non-identifying information with third parties; provided that AIM shall not disclose any Client Materials to a third party in raw or disaggregated form, or identify Client as the source, or in violation of Section 4 herein.

2.3 Designated Contacts

2.3.1 The parties will designate an individual who will be the primary point of contact (the "Primary Contact") between the parties for all matters relating to the Services. A party may designate a new Primary Contact by written notice to the other party.

2.4 Non-Solicitation

2.4.1 During the Term of this Agreement and for one (1) year thereafter, without the consent of AIM, Client shall not directly or indirectly solicit, recruit or hire any full-time employee of AIM involved in the provision of Services hereunder (an "AIM Service Provider"). However, this restriction shall not apply to general solicitations of employment not specifically directed towards AIM Service Providers. If Client hires an AIM Service Provider in violation of this provision, Client shall pay AIM as liquidated damages, and not as a penalty, an amount equal to twenty-four months of such AIM Service Provider's current salary. The parties agree that a breach of this Section will result in damages to AIM that would be difficult to calculate, and have been agreed to by the parties for the purpose of reflecting and advancing their mutual convenience, including the ease of calculating damages to AIM. Client and AIM each hereby stipulates to the fairness and reasonableness of such liquidated damages and covenants not to allege or assert, or allow any of their respective affiliates, or cause or encourage or support any other third party to allege or assert, that such liquidated damages are unenforceable or illegal in any way for any reason.

3. Fees

3.1 Pricing and Audits

3.1.1 Client will be billed for those amounts and at those prices set forth in the applicable Statement of Work, as applicable. During the term of this Agreement and for two (2) years thereafter, Client will maintain, and AIM will be entitled to audit, any records relevant to Client's use of the AIM Products and Services hereunder. AIM may audit such records on reasonable notice at AIM's cost (or if the audits reveal material non-compliance with this Agreement, at Client's cost.

3.2 Payments

3.2.1 Client or a third party at the direction of Client shall pay those amounts set forth in invoices not disputed in good faith within thirty (30) days of the date of receipt thereof, unless a specific date for payment is set forth in the Statement of Work, in which case the payment will be due on the date specified. All payment obligations are non-cancelable and all amounts paid are non-refundable, unless otherwise specified, except for amounts paid in error that are not actually due under this Agreement. The fees paid by Client are exclusive of all taxes, levies, or duties imposed by taxing authorities, if any, and Client shall be responsible for payment of all such taxes, levies, or duties, excluding taxes based on AIM's income. Client represents and warrants that the billing and contact information provided to AIM is complete and accurate. Client shall pay interest on all payments not received by the due date at a rate of three and a half percent (3.5%) or the maximum amount allowed by law, whichever is lesser.

4. Confidentiality

4.1 Scope and Restrictions

4.1.1 "Confidential Information" means all information of a party ("Disclosing party") disclosed to the other party ("Receiving party") that is designated or identified, orally or in writing, as confidential at the time of disclosure, or should be reasonably known by the Receiving party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure, including, without limitation, computer programs, drawings, hardware, installation, configuration, software, algorithms, source code, know-how, formulas, processes, ideas, inventions (whether patentable or not), performance, specifications, testing, schematics and other technical, business, financial, customer and product development plans, forecasts, strategies and information, which to the extent previously, presently or subsequently disclosed or made available to the Recipient. The Receiving party will: (i) hold all Confidential Information received from the Disclosing party in strict confidence; (ii) only use the Disclosing party's Confidential Information for the purpose ("Purpose") of (a) test, adopt, and/or use AIM Products and Services, and (b) any relationship is formed by a written agreement, furthering the Purpose and intent expressly stated in such written agreement; (iii) not disclose such Confidential Information to any person or entity, other than its employees, consultants, agents and professional advisers who have a "need to know" for the Receiving party to exercise its rights or perform its obligations hereunder, provided that such employees, consultants and agents are bound by agreements or, in the case of professional advisers, ethical duties respecting such Confidential Information in accordance with the terms of this Section 4. If the Receiving party is required by applicable law or court order to make any disclosure of such Confidential Information, it will first give written notice of such requirement to the Disclosing party, and, to the extent within its control, permit the Disclosing party to intervene in any relevant proceedings to protect its interests in its Confidential Information, and provide full cooperation to the Disclosing party in seeking to obtain such protection. Further, this Section 4 will not apply to information which the Receiving party can document: (i) was rightfully in its possession or known to it prior to receipt; (ii) is or has become public knowledge or publicly available through no fault of the Receiving party; (iii) is rightfully obtained by the Receiving party from a third party without breach of any confidentiality obligation; or (iv) is independently developed, with documentary support, by employees of the Receiving party who had no access, directly or indirectly, to such information.

4.2 Equitable Relief

4.2.1 The Receiving party acknowledges that unauthorized disclosure and use of Confidential Information could cause substantial harm to the Disclosing party for which damages alone might not be a sufficient remedy and, therefore, that upon any such disclosure by the Receiving party, the Disclosing party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law or equity.

4.3 Action to Mitigate

4.3.1 In the event of a breach, the Receiving party must, at its own expense, ensure that, at all times, (i) notify the Disclosing party immediately if it becomes aware of any disclosure or use of Confidential Information of the Disclosing party other than for the Purpose or otherwise permitted under the Agreement; (ii) immediately take all reasonable steps to prevent or stop the suspected or actual breach and any further breach of the Agreement; and (iii) comply with any reasonable direction by the Disclosing party from time to time regarding enforcement of this agreement or the obligations under it.

4.4 Restriction on Analysis

4.4.1 Each party agrees that it shall not itself, or cause or enable any other person to reverse-engineer, decompile, or disassemble any software, hardware, process, or tangible items, including refraining from any activities, examinations, performance or qualitative analyses, or other investigations that seek to discover the contents, algorithms, composition, or manufacturing formulae of the Confidential Information.

4.5 Dispute Resolution and Fees

4.5.1 In the event of any dispute arising out of this Agreement, the parties shall confer in good faith to resolve the dispute amicably. If the parties cannot resolve amicably within 14 days of a first written notice concerning the dispute, AIM reserves the right to initiate any legal proceedings against the Receiving Party to enforce or protect any of its rights under this Agreement. In the event AIM brings one or more legal proceedings and prevails, AIM shall be entitled to recover, in addition to any damages, (a) any consequential or punitive damages, and (b) reasonable attorneys' fees and costs incurred in connection therewith.

5. Proprietary Rights

5.1 Rights of AIM

5.1.1 AIM and its suppliers own and shall retain all proprietary rights, including all copyright, patent, trade secret, trademark and all other intellectual property rights, in and to the Software and the Hardware. Client acknowledges that the rights granted under this Agreement do not provide Client with title to or ownership of the Software or the Hardware. In addition, each Statement of Work may contain specific terms and conditions relating to Client's use of any third party software delivered with the Software or Services (if applicable).

5.2 Patent Application

5.2.1 Each party shall have the right to file applications for patents for its own inventions and creations, and it shall not be considered a breach of this Agreement for each party to set forth in those applications Confidential Information as may be necessary to describe completely each party's own invention or creation in accordance with the requirements of the applicable patent law of the country involved. For the avoidance of doubt, the Receiving party of Confidential Information is prohibited to use Confidential Information in connection with a patent application or to guide the Receiving party's patent strategy.

6. Term and Termination

6.1 The Subscription Term of each Statement of Work is as specified in such Statement of Work. This Agreement will be in effect, on an Statement of Work-by-Statement of Work basis, for so long as any Statement of Work is in effect. Each Statement of Work may be terminated as set forth herein or as set forth within such Statement of Work. If either party fails to comply with any provision of this Agreement or any Statement of Work, and such breach has not been cured within forty-five (45) days after receipt of written notice thereof, the non-breaching party may terminate this Agreement or the affected Statement of Work, except that AIM may immediately terminate this Agreement or the affected Statement of Work upon Client's breach of Section 1.2. Upon expiration or termination of this Agreement or any Statement of Work for any reason, Client shall cease any further use of the applicable Software and Hardware and destroy any copies of the applicable Software or related technical documentation provided by AIM ("Documentation") within Client's possession and control. Upon expiration or termination of this Agreement, each Receiving party will return or destroy, at the Disclosing party's option, the Disclosing party's Confidential Information in the Receiving party's possession or control. All fees that have accrued as of such expiration or termination, and Sections 1.2, 1.3, 1.5, 3, 4, 5, 6, 7.2, AND 8 through 12 will survive any expiration or termination of this Agreement or the affected Statement of Work.

7. Warranties

7.1 Limited Warranty

7.1.1 AIM warrants that, during the Subscription Term set forth in the applicable Statement of Work, the Software and Hardware will, in all material respects, conform to the functionality described in the Statement of Work. AIM's sole and exclusive obligation, and Client's sole and exclusive remedy, for a breach of this warranty shall be that AIM shall be required to use commercially reasonable efforts to modify the Software and Hardware to conform in all material respects the statement of work, and if AIM is unable to materially restore such functionality within forty-five (45) days from the date of written notice of said breach, as Client's sole and exclusive remedy, Client shall be entitled to terminate the applicable Statement of Work upon written notice.

7.2 Warranty Disclaimer

7.2.1 EXCEPT AS EXPLICITLY PROVIDED HEREIN, THE SOFTWARE AND HARDWARE AND ALL RELATED SERVICES ARE PROVIDED "AS IS" AND AIM EXPRESSLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT THERETO, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR THE CONTINUOUS, UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, OR SECURE ACCESS TO OR OPERATION OF THE SOFTWARE, THE HARDWARE, OR ANY RELATED SERVICES. AIM EXPRESSLY DISCLAIMS ANY WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION OR DATA ACCESSED OR USED IN CONNECTION WITH THE SOFTWARE, HARDWARE, OR ANY RELATED SERVICES. WITHOUT LIMITING THE FOREGOING DISCLAIMER, CLIENT ACKNOWLEDGES THAT THE SOFTWARE, HARDWARE AND/OR SERVICES ARE PROVIDED FOR INTENDED PURPOSES ONLY AND AIM DOES NOT GUARANTEE THAT ANY SPECIFIC RESULTS OR OUTCOMES MAY BE OBTAINED FROM USING THE SOFTWARE, THE HARDWARE, AND/OR SERVICES.

8. Indemnification

8.1 By AIM

8.1.1 AIM agrees to defend, at its expense, Client against any third party claim to the extent such claim alleges that the Software and/or Hardware infringes or misappropriates any patent, copyright, trademark or trade secret of a third party, and AIM shall pay all costs and damages finally awarded against Client by a court of competent jurisdiction as a result of any such claim; and any third party claim to the extent such claim alleges, subject to the terms and conditions setting forth authorized, safe, and proper use of AIM products herein or in any Statement of Work, that the operation of the Software and/or Hardware in part or in whole caused injury or property damages, and AIM shall pay costs and damages finally awarded against Client on a proportional basis by a court of competent jurisdiction as a result of any such claim.

8.1.2 In the event that the use of the Software or Hardware is, or in AIM's sole opinion is likely to become, subject to such a claim, AIM, at its option and expense, may (a) replace the applicable Software and Hardware with functionally equivalent non-infringing technology, (b) obtain a license for Client's continued use of the applicable Software or Hardware, or (c) terminate this Agreement and provide a pro-rata refund of any fees prepaid for the unused Term, if any. The foregoing indemnification obligation of AIM will not apply: (1) if any portion of the Software or Hardware at issue is modified by Client; (2) if the Software or Hardware is combined with other non-AIM products, applications, or processes not authorized by AIM; (3) to any unauthorized use of the Software or the Hardware; (4) to any use in violation of the safety protocols set forth by AIM, or (5) Client's failure to use updated or modified Software or Hardware provided by AIM to avoid infringement, misappropriation, injury, or damages. THE FOREGOING PROVISIONS OF THIS SECTION STATE THE ENTIRE LIABILITY AND ALL OBLIGATIONS OF AIM AND THE EXCLUSIVE REMEDY OF CLIENT, WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADE SECRETS, TRADEMARKS OR OTHER INTELLECTUAL PROPERTY RIGHTS WITH RESPECT TO THE SOFTWARE AND HARDWARE.

8.2 By Client

8.2.1 Client agrees to defend at its expense AIM against any third party claim to the extent such claim arises from Client's use of the Software and the Hardware (other than a claim for which AIM is required to indemnify Client for pursuant to Section 8.1) or Client's negligence or willful misconduct, and Client shall pay all costs and damages finally awarded against AIM by a court of competent jurisdiction as a result of any such claim.

9.3 Indemnification Requirements

8.3.1 In connection with any claim for indemnification under this Section 8, the indemnified party must promptly provide the indemnifying party with notice of any claim that the indemnified party believes is within the scope of the obligation to indemnify, provided, however, that the failure to provide such notice shall not relieve the indemnifying party of its obligations under this Section 8, except to the extent that such failure materially prejudices the indemnifying party's defense of such claim. The indemnified party may, at its own expense, assist in the defense if it so chooses, but the indemnifying party shall control the defense and all negotiations relative to the settlement of any such claim. Any settlement intended to bind the indemnified party shall not be final without the indemnified party's written consent, which consent shall not be unreasonably withheld, conditioned or delayed.

9. Limitation of Liability

9.1 EXCEPT FOR LIABILITY ARISING OUT OF CLIENT'S BREACH OF SECTION 1 OR SECTION 2.4, OR EITHER PARTY'S BREACH OF SECTION 4, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF REVENUES OR PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.2 EXCEPT FOR LIABILITY ARISING OUT OF CLIENT'S BREACH OF SECTION 1 OR SECTION 2.4, EITHER PARTY'S BREACH OF SECTION 4, CLIENT'S PAYMENT OBLIGATIONS HEREUNDER OR EACH PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, NEITHER PARTY'S LIABILITY HEREUNDER FOR ANY DAMAGES (WHETHER FOR BREACH OF CONTRACT, MISREPRESENTATIONS, NEGLIGENCE, STRICT LIABILITY, OTHER TORTS OR OTHERWISE) SHALL EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID TO AIM HEREUNDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

10. Force Majeure

10.1 Except for payment obligations, neither party hereto will be liable for defaults or delays due to Acts of God, or the public enemy, acts or demands of any government or governmental agency, fires, floods, accidents, pandemic, dangerous weather conditions, or other unforeseeable causes beyond its control and not due to its fault or negligence.

11. Assignment

11.1 Neither party may assign or transfer this Agreement or any of its rights or obligations hereunder without the prior written consent of the other party, which shall not be unreasonably withheld; provided that each party may assign this Agreement as a whole, without consent or notice, to a successor to all or substantially all of its business or assets related to this Agreement, whether by event of merger, acquisition or corporate reorganization. This Agreement (including all Statement of Work, exhibits, and all restrictions contained therein) shall be binding upon each party and its successors and assigns, and the assigning party will be liable for any failure of the assignee to perform its duties pursuant to this Agreement. Any attempted assignment or transfer in violation of this Section 11 shall be null and void.

12. Severability

12.1 Except as otherwise expressly provided herein, if any term, covenant or condition of this Agreement or the application thereof to any Party or circumstance shall, to any extent, be held to be invalid or unenforceable (including the terms of Section 2.4) by a court of competent jurisdiction, then (i) the remainder of this Agreement, or the application of such term, covenant or condition to parties or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this Agreement shall be valid and be enforced to the fullest extent permitted by law, and (ii) the parties hereto covenant and agree to renegotiate any such invalid or unenforceable term, covenant or application thereof in good faith in order to provide a reasonably acceptable alternative to the term, covenant or condition of this Agreement or the application thereof that is invalid or unenforceable, it being the intent of the parties that the basic purposes of this Agreement are to be effectuated.

13. Miscellaneous

13.1 This Agreement shall be governed by and construed under the laws of the State of Washington, U.S.A. The parties consent to the exclusive jurisdiction and venue of the courts located in and serving Seattle, Washington. Failure by either party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. This Agreement (including all Statement of Work, and exhibits hereto) represents the entire agreement between the parties and supersede any previous or contemporaneous oral or written agreements or communications regarding the subject matter of this Agreement. Any modification to this Agreement must be in writing and signed by a duly authorized agent of both parties. This Agreement shall control over additional or different terms of any purchase order, confirmation, invoice or similar document, even if accepted in writing by both parties, and waivers and amendments to this Agreement shall be effective only if made by non-pre-printed agreements clearly understood by both parties to be an amendment or waiver to this Agreement. The rights and remedies of the parties hereunder will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity. No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this Agreement. Client agrees that AIM may refer to Client by trade name and logo, and may briefly describe Client's business, in AIM's marketing materials and web site. AIM may give notice to Client by electronic mail to Client's e-mail address on record in Client's account information, or by written communication sent by first class mail or pre-paid post to Client's address on record in Client's account information. For purposes hereof, "including" means "including without limitation".