Master Service Agreement

This Master Services Agreement and the Exhibits hereto (“Agreement”) is entered into and effective as of the last date of signature below or the date of electronic acceptance, as applicable (“Effective Date”), by and between Assistable Machine Learning, Inc. d/b/a Assistable.ai and/or its affiliates and/or subsidiaries with offices at 10495 Van Wyck Terr, Port Charlotte, FL 33981 (“Assistable”), and [CUSTOMER NAME], a [ENTITY TYPE], with offices at [CUSTOMER ADDRESS] (“Customer”). Capitalized terms have the meanings in Section 13 (Definitions) or elsewhere in this Agreement.  

Assistable offers the Assistable Platform and related Services and Customer desires to utilize the Assistable Platform and related Services from Assistable in accordance with the terms and conditions set forth in this Agreement.

In consideration of the mutual promises and agreements contained herein, the sufficiency of which are hereby acknowledged, the parties agree as follows:

1. Provision of the Assistable Platform and Services.

1.1 Registration and Orders.
Customer will register with Assistable to purchase and use the Assistable Platform and related Services by going to https://assistable.ai/ , creating an account and choosing a Monthly Plan or Annual Plan for use of the Assistable Platform and related Services (the “Registration Process”). 

1.2 License Grant.

Subject to the terms and conditions of this Agreement, Assistable hereby grants Customer a limited, non-exclusive, non-transferable (except in connection with an assignment of this Agreement pursuant to Section 12.8 (Assignment)), non-sublicensable and revocable right to access and use the Assistable Platform ad Services, in each case that have been validly ordered pursuant to the Registration Process, solely for the business purposes of Customer during the Monthly Term or Annual Term, as applicable. Assistable shall make the Assistable Platform and Services available to Customer in accordance with this Agreement. 

1.3 White Labeling. 
In furtherance of Section 1.2, Customer shall also have the right to “white label” the Assistable Platform in accordance with the terms and conditions set forth in this Agreement all as more fully set forth on and governed by Exhibit A of this Agreement. 

1.4 License Restrictions. 
Except as otherwise permitted in this Agreement or an SOW, Customer shall not (a) modify, copy or create any derivative or integrated works based on the Assistable Platform or the Services; (b) license, sublicense, sell, resell, rent, lease, transfer, assign (in all or part – this to include granting access for a limited time only), distribute, time share, offer in a service bureau, or otherwise make the Assistable Platform or the Services available to any third party other than to Authorized Parties as expressly permitted herein; (c) reverse engineer or decompile any portion of the Assistable Platform or the Services, including but not limited to, any software utilized by Assistable in the provision of the Assistable Platform or the Services; (d) access the Assistable Platform or any Services in order to build any competitive or commercially available product or service; or (e) copy any features, functions, integrations, pathways, architecture, interfaces or graphics of the Assistable Platform or the Services; or create internet links to the Assistable Platform or Services or frame or mirror the Assistable Platform or the Services on any other server or wireless or internet-based device or in any other manner that could become available from time to time during the Monthly Term or Annual Term, as applicable.

1.5 Support Services. 
Subject to the restrictions set forth herein, Assistable shall use commercially reasonable efforts to provide to Customer support services for the Assistable Platform.  To the extent that Assistable, at its sole discretion, develops and makes Improvements available during the Monthly Term or Annual Term, as applicable, Assistable shall also provide to Customer access to any such Improvements, whereupon such Improvements will be incorporated in the license to the Assistable Platform granted herein (as applicable).  For the avoidance of doubt, this Agreement does not entitle Customer to New Products. 

1.6 Assistable Platform and Services Changes. 
Assistable reserves the right to discontinue, modify and/or replace any part of the Assistable Platform or related Services at any time.

2. Professional Services.

2.1 Statements of Work.
The parties may agree that Assistable may perform certain professional services, including but not limited to, software development services (“Professional Services”), for Customer pursuant to this Agreement. In such event, the parties shall enter into a statement of work substantially in a format to be provided by Assistable (“SOW”) setting forth the Professional Services to be performed and deliverables to be provided (“Deliverables”) by Assistable. The manner and means by which Assistable chooses to complete the Professional Services and prepare and provide Deliverables are in Assistable’s sole discretion and control.

2.2 Customer’s Cooperation. 
Customer acknowledges that its timely provision of accurate and complete information, access to its personnel, materials, equipment and facilities (where applicable), and its cooperation are essential to the performance of Professional Services and provision of Deliverables. Assistable will not be liable for any deficiency or delay in performing Professional Services or providing Deliverables to the extent resulting from and in any manner associated with Customer’s failure to provide such information, access and cooperation.

3. Customer’s Use of the Assistable Platform and Services. 

3.1 Customer Obligations. 
Customer may enable access to the Assistable Platform or Services for use only by Authorized Parties solely for the business purposes of Customer in accordance with this Agreement or a SOW; provided, however, Customer may enable access to the consumer-facing functionality and features of the Assistable Platform and Services for use by Consumers.  Customer is responsible for all Authorized Party and Consumer use of the Assistable Platform and Services and compliance with this Agreement, as well as restricting access by any individual who is no longer an Authorized Party.  Customer shall:  (a) have sole responsibility for the accuracy, quality, and legality of all Customer Data and Customer Materials; (b) grant User IDs to individuals named Authorized Parties; (c) require that all Authorized Parties keep User ID and password information strictly confidential and not share such information with any third party; (d) prevent unauthorized access to, or use of, the Assistable Platform and Services and notify Assistable promptly of any such unauthorized access or use (including any unauthorized access or use caused by misuse or misappropriation of User IDs or passwords); and (e)  comply with its obligations under all Laws applicable to Customer’s use of the Assistable Platform and Services, including all such Laws related to privacy, data security, and data protection.   Customer shall not:  (i) use the Assistable Platform or Services in violation of applicable Laws; (ii) in connection with the Assistable Platform or Services send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (iii) send or store Malicious Code in connection with the Assistable Platform and Services; (iv) interfere with or disrupt performance of the Assistable Platform or Services or the data contained therein; or (v) attempt to gain access to the Assistable Platform or Services or their related systems or networks in a manner not set forth in this Agreement.  Customer shall designate a reasonable number of Authorized Parties to request and receive support services from Assistable.  Such Authorized Parties must be trained on the Assistable Platform and Services for which they initiate support requests.  Customer shall be liable for the acts and omissions of all Authorized Parties and Consumers relating to this Agreement.

3.2 Restrictions.  
Customer shall not, without Assistable’s prior written consent, use, duplicate, or disclose any data or information relating to the Assistable Platform or Services that is made available by Assistable in connection with this Agreement, including, but not limited to, any information related to the features, functionality, performance, pricing, application, or construction of any portion of the Assistable Platform or Services.  Customer shall not use the Assistable Platform or Services for benchmarking or testing performance, or for enhancing any products or services that relate in any manner to the business purposes of Assistable.  

3.3 Usage Limitations. 
Assistable may apply reasonable technical and usage limits (e.g., API rate limits, storage, concurrency) to maintain Assistable Platform stability. In that regard, Customer will cooperate with Assistable to address abnormal or abusive usage. Customer’s failure to do so may result in suspension of Customer’s use of the Assistable Platform and/or Services.      

3.4 Internet Access.
  Customer acknowledges that access to and use of the full functionality of the Assistable Platform and the Services requires a high-speed internet connection and that Customer is responsible for procuring and maintaining the appropriate network connections.  

4. Fees.

4.1 Pricing. 
Subject to Section 1.6 and Section 4.5 and any additional or differing terms and conditions set forth in a SOW, during the Monthly Term or Annual Term, as applicable, of this Agreement, the Customer shall be entitled to make purchases under this Agreement subject to Exhibit B.  

4.2 Invoices and Payment.
Customer is hereby authorizing Assistable to charge its credit card monthly for its subscription to the Assistable Platform and for any Services utilized or Professional Services provided during the applicable month (unless otherwise agreed upon in a SOW) without having to seek additional Customer approval to do so. Upon Assistable’s request, Customer shall make payments to Assistable via electronic funds transfer.  Fees shall be deemed undisputed unless Customer notifies Assistable in writing within ten (10) days of the date of the applicable invoice, describing in reasonable detail the nature of the dispute, pays all undisputed amounts timely and cooperates in good faith to resolve such dispute as promptly as practical. At all times, Customer shall promptly provide, maintain, and update Assistable with Customer’s then-current credit card account numbers or bank account information and all other information necessary for Assistable to charge such credit card account or electronically withdraw funds from such bank account.  In the event that either form of automatic payment is not honored or is declined, upon Assistable’s demand, Customer will immediately pay all amounts owed by immediately available, certified or bank funds. All fees are quoted and payable in United States dollars.  

4.3 Non-cancelable and Non-refundable. 
Except as specifically set forth to the contrary herein or a SOW, all payment obligations are non-cancelable, and all payments made are non-refundable. Subscriptions may not be decreased during the Monthly Term, Annual Term or SOW Term, as applicable.

4.4 Overdue Payments. 
Any payment not received from Customer by the due date may accrue, at Assistable’s discretion, late charges at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by Law, whichever is higher, from the date such payment was due until the date paid.  Customer shall further be responsible for all costs and expenses incurred by Assistable or Assistable’s agents or assignees (including collection expenses and attorney fees) in connection with the collection of payments not made by Customer on time or any other amounts overdue from Customer.  

4.5 Price Increases. 
Assistable shall have the right to increase fees for the Assistable Platform and Services once per year every calendar year during the Monthly Term or Annual Term, as applicable, of this Agreement.  

4.6 Non-Payment. 
If Customer's account is more than thirty (30) days past due, in addition to any other rights or remedies it may have under this Agreement (including the right to suspend the Assistable Platform pursuant to Section 11.5 (Suspension of Service)) or by Law, Assistable reserves the right to disable the Assistable Platform upon thirty (30) days written notice  without liability to Customer, until such amounts are paid in full. Customer shall remain liable for any fees and other amounts payable under this Agreement during any period of suspension.

4.7 Taxes. 
Assistable’s fees do not include any direct or indirect local, state, federal or foreign taxes, levies, duties or similar governmental assessments of any nature, including value-added, goods and services, excise, use or withholding taxes (collectively, “Taxes”).  Customer is responsible for paying all Taxes associated with licenses, including with respect to the Assistable Platform and Services, under this Agreement, excluding U.S. income taxes on Assistable.  If Customer has an obligation to withhold any amounts under any Law or tax regime (other than U.S. income tax law), Customer shall gross up the payments so that Assistable receives the amount actually quoted and invoiced. If Assistable has a legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount will be invoiced to and paid by Customer, unless Customer provides Assistable with a valid tax exemption certificate authorized by the appropriate taxing authority.

5. Proprietary Rights; Customer Data.

5.1 Ownership and Reservation of Rights to Assistable Intellectual Property.  
As between Assistable and Customer, Assistable, its Affiliates or its licensors own all right, title and interest in and to the Assistable Platform and Services and all related technology and Intellectual Property Rights.  Subject to the limited rights expressly granted hereunder, Assistable reserves all rights, title and interest in and to the Assistable Platform and Services including all related technology and Intellectual Property Rights.  No rights are granted to Customer hereunder other than as expressly set forth in this Agreement.

5.2 Ownership of Work Product. 
Customer agrees that all Work Product will be the property of Assistable and hereby assigns and agrees to assign all its rights in the Work Product and in all related patents, patent applications, copyrights, mask work rights, trademarks, trade secrets, rights of priority and other proprietary rights to Assistable, regardless of what local legislation may allow the Customer to claim.  Customer acknowledges that Assistable, in its sole discretion, will have the right to license the Work Product or any portion thereof, or incorporate the Work Product or any portion thereof into products or services, for use by other licensees or customers of Assistable.  At Assistable’s request and expense, Customer shall assist and cooperate with Assistable in all reasonable respects and shall execute documents, give testimony and take further acts as reasonably requested by Assistable to acquire, transfer, maintain and enforce patent, copyright, trademark, mask work, trade secret and other legal protection for the Work Product.

5.3 Customer Feedback. 
Customer and Authorized Parties may elect to provide Assistable with suggestions, enhancement requests, recommendations and other feedback concerning the Assistable Platform, Services and support services (the “Customer Feedback”).  Customer hereby assigns and agrees to assign all Customer Feedback to Assistable without lien or encumbrance and agrees that Customer Feedback will be the sole property of Assistable and that Assistable may use Customer Feedback in its discretion without obligation to Customer. Assistable has no obligation to make Customer Feedback an Improvement.  

5.4 Assistable Platform/Services Learning from Customer Input; Use of Customer Input for Improvement; Ownership of Assistable Platform/Services Output and Improvements.  
Customer acknowledges and agrees that in the course of providing the Assistable Platform and Services, including through access to and use of any artificial intelligence (“AI”) systems or models utilized by the Assistable Platform and Services the AI may be trained on, learn from, or otherwise utilize data, content, prompts, instructions, or other materials provided by or on behalf of Customer, including but not limited to Customer Data and Customer Materials (“Customer Input”).

Customer grants Assistable a non-exclusive, worldwide, royalty-free, irrevocable, transferable, sub-licensable, perpetual, fully paid-up license to use Customer Input to operate, train, improve, and develop the Assistable Platform and Services and their related AI models and technologies, subject to the confidentiality obligations set forth in this Agreement and any restrictions under applicable Law. To the extent the Assistable Platform or the Services or any related AI models or technologies generate any models, algorithms, features, enhancements, improvements, or other materials, content, or intellectual property as a result of or in connection with processing Customer Input (“AI-Generated IP”), Customer agrees that all right, title, and interest in and to such AI-Generated IP shall be solely and exclusively owned by Assistable. For clarity, Customer shall retain ownership of its pre-existing intellectual property, and any Customer Data or Customer Materials provided to Company but shall have no ownership or other rights in the AI-Generated IP.

5.5 Ownership of Customer Data and Customer Materials. 
As between Assistable and Customer, Customer owns the Customer Data and Customer Materials.  Assistable will have, and Customer hereby grants and agrees to grant to Assistable, a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual, fully paid-up license to use the Customer Data and Customer Materials to configure and/or provide the Assistable Platform, Services, Professional Services and support services to Customer, or to prevent or address service or technical problems  and otherwise in connection with its performance under and in accordance with this Agreement or a SOW.

5.6 Permitted Use of Customer Data and Customer Materials. 
Notwithstanding the other provisions of this Agreement, Assistable shall also have a non-exclusive, fully paid, royalty-free, transferable, perpetual, irrevocable worldwide, right and license to use, access, make, have made, use, copy, distribute, maintain, modify, enhance, create derivative works of, aggregate, and re-purpose Customer Data and Customer Materials for the purposes (including commercial purposes) of analyzing activity, modeling, industry benchmarking, marketing, developing industry expertise and making product/service improvements.    In any such use of Customer’s Data or Customer’s Materials, Assistable will ensure that only aggregate information is utilized, and in all cases all Customer Data and Customer Materials will be anonymized. 

5.7 Usage Data. 
Assistable may collect certain information in connection with Customer’s access to or use of the Service, such as access records, date and time stamps, transaction and activity records, and system performance data (“Usage Data”).  Assistable may use Usage Data to, among other things, deliver and manage its products and services, perform maintenance and support, and develop, test, and improve the Assistable Platform and Services and other Assistable products and services, and generate statistical data about usage of its products and services.  As between Assistable and Customer, Assistable owns the Usage Data.

5.8 Data Processing Addendum.  Terms applicable to Personal Data are set forth in the data processing addendum available on Assistable’s website (or successor location designated by Assistable), as such terms may be updated by Assistable from time to time (“Data Processing Addendum”).

5.9 Privacy.  Customer agrees to comply with the Assistable Privacy Policy available on Assistable’s website (or successor location designated by Assistable), as such terms may be updated by Assistable from time to time.

5.10 Acceptable Use Policy.  Customer agrees to comply with the Assistable Acceptable Use Policy available on Assistable’s website (or successor location designated by Assistable), as such terms may be updated by Assistable from time to time.

6. Confidentiality.

6.1 Confidentiality. 
A party shall not disclose or use any Confidential Information of the other party except as reasonably necessary to perform its obligations or exercise its rights pursuant to this Agreement except with the other party's prior written permission.

6.2 Protection. 
Each party agrees to protect the Confidential Information of the other party in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a reasonable standard of care.

 6.3 Compelled Disclosure. 
A disclosure by one party of Confidential Information of the other party to the extent required by Law will not be considered a breach of this Agreement, provided the party so compelled promptly provides the other party with prior notice of such compelled disclosure (to the extent legally permitted) and provides reasonable assistance, at the other party's cost, if the other party wishes to contest the disclosure.

6.4 Remedies. 
If a party discloses or uses (or threatens to disclose or use) any Confidential Information of the other party in breach of confidentiality protections hereunder, the other party will have the right, in addition to any other remedies available, to seek injunctive relief to enjoin such acts without the necessity of posting a bond, it being acknowledged by the parties that any other available remedies are inadequate.

6.5 Exclusions.  Confidential Information will not include any information that:  (a) is or becomes generally known to the public without breach of any obligation owed to the other party; (b) was known to a party prior to its disclosure by the other party without breach of any obligation owed to the other party, as evidenced by contemporaneous written records; (c) was independently developed by a party without breach of any obligation owed to the other party, as evidenced by contemporaneous written records; or (d) is received from a third party without breach of any obligation owed to the other party.  

7. Disclaimers.

DISCLAIMERS.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ASSISTABLE PLATFORM, SERVICES, PROFESSIONAL SERVICES, DELIVERABLES AND SUPPORT SERVICES ARE PROVIDED “AS IS” AND ASSISTABLE, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND DISCLAIM ALL OTHER WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT OR ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. ASSISTABLE DOES NOT REPRESENT OR WARRANT THAT THE ASSISTABLE PLATFORM, SERVICES, PROFESSIONAL SERVICES OR DELIVERABLES WILL BE ERROR FREE, UNINTERRUPTED OR FREE OF HARMFUL COMPONENTS OR THAT CUSTOMER DATA OR CUSTOMER MATERIALS, WILL BE SECURE OR NOT LOST OR DAMAGED. ASSISTABLE SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE ITS REASONABLE CONTROL, INCLUDING ANY HARM OR DAMAGES CAUSED BY THIRD-PARTY HOSTING PROVIDERS. ASSISTABLE MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER ON BEHALF OF ANY THIRD-PARTY PROVIDER.

 8. AI Functionality; Data Use; Customer Responsibility

8.1 Use of Artificial Intelligence. 
Customer acknowledges and agrees that the Assistable Platform and the Services include and rely on AI and machine learning technologies to generate natural language outputs, including, but not limited to, voice and text responses, and to perform related automation tasks. These technologies operate based on patterns in data and probabilistic inference, and may generate outputs that are incorrect, incomplete, outdated, or otherwise unsuitable for reliance without independent verification.

8.2 Data Usage for Processing and Improvement. 
Subject to the terms of this Agreement and Assistable’s Privacy Policy, Assistable may collect, process, and store Customer Data and Customer Materials, including prompts, inputs, and other content submitted to or generated by the Assistable Platform or the Services (“Interaction Data”), for the purposes:

Set forth in Section 5.4.

Of providing and improving the functionality, accuracy, performance, and user experience of the Assistable Platform or the Services;

Of ensuring compliance with applicable Laws and Assistable Platform and Services use restrictions;

Of performing analytics, troubleshooting, and error correction.

Unless otherwise agreed by the parties in writing, Interaction Data may be used in de-identified or aggregated form to train, fine-tune, or improve Assistable’s AI models, the Assistable Platform and Services. Assistable will not use any Customer Data or Customer Materials that are designated in writing as confidential, proprietary, or subject to heightened privacy requirements (e.g., PII, PHI, or trade secrets), for model training without the Customer’s express written consent.

8.3 Customer Responsibility and Output Verification. 
Customer is solely responsible for reviewing, validating, and verifying the accuracy, appropriateness, and legality of any outputs generated by the Assistable Platform and the Services prior to relying on such outputs or using them in any operational, legal, medical, financial, or customer-facing context. Neither the Assistable Platform nor the Services are designed or intended to function as a substitute for professional advice, human judgment, or expert review.

Assistable makes no warranty or representation that the Assistable Platform’s or the Services outputs will be accurate, complete, or appropriate for any particular use case or regulatory environment. Customer assumes all risk associated with its use of the Assistable Platform and Services and its reliance on outputs generated by either.

9. Indemnification. 

9.1 Indemnification by Assistable. Assistable shall defend Customer, its Affiliates, and their respective employees, officers, and directors against any third-party claim alleging that Customer’s use of the  Assistable Platform in the form provided by Assistable and when used in compliance with this Agreement infringes that third party’s U.S. copyright, U.S. patent issued as of the Effective Date, or U.S. trademark and shall pay the amount of any adverse final judgment or settlement to which Assistable consents. Assistable shall have no obligation or liability under this Section 9.1 (Indemnification by Assistable) to the extent the third party claim arises from: (a) Customer’s or its Affiliates failure to incorporate a software or other Improvement made available by Assistable that would have avoided the alleged infringement; (b) modification of the Assistable Platform by anyone other than Assistable; (c) specifications, instructions, features, functions or designs or other elements provided by or requested by Customer or its Affiliates; (d) use of the Assistable Platform in combination with any other product, service, process or material not provided by Assistable; or (e) use of the Assistable Platform in a manner not contemplated by this Agreement.  If the Assistable Platform is (or Assistable believes is likely to become) the subject of a claim for which Assistable would be obligated to defend and indemnify pursuant to this Section, then Assistable may, at its sole option, obtain for Customer the right to continue use the Assistable Platform or replace or modify the Assistable Platform, as applicable. If neither of the foregoing options is reasonably available to Assistable, in its judgment, then use of the infringing Assistable Platform may be terminated at the option of Assistable.  The remedies provided in this Section 9.1 (Indemnification by Assistable), are Customer’s sole and exclusive remedies for any third-party claims of infringement or misappropriation of Intellectual Property Rights by the Assistable Platform.

9.2 Indemnification by Customer.  Customer shall defend Assistable, its Affiliates, and their respective employees, officers, and directors against any claim arising out of or related to (a) any breach (or claim or threat thereof that, if true, would be a breach) of this Agreement by Customer; (b) Customer Data or Customer Materials, including any claim alleging that Customer Data or Customer Materials infringe or misappropriate the rights of a third party or violate any Law; and (c) any violation of Law by Customer,  and shall pay the amount of any adverse final judgment or settlement to which Customer consents. 

9.3 Procedures.
Each party shall give the other party prompt notice of any claim to which a defense and payment obligation under Section 9 (Indemnification) may apply and shall reasonably cooperate with the indemnifying party, at its expense, in the defense or settlement of any claim. The indemnifying party will have the sole right to control the defense and settlement of any third-party claim, except that any settlement for other than money damages will be subject to the approval of the indemnified party, which approval shall not be unreasonably withheld. An indemnifying party’s defense and payment obligations under this Section 9 (Indemnification) will be diminished to the extent that it is materially prejudiced by the indemnified party’s non-compliance with the foregoing procedures.   

10. Limitation of Liability.

10.1 Limitation of Liability.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL ASSISTABLE’S (OR ASSISTABLE’S THIRD PARTY LICENSORS’ OR SUBCONTRACTORS’) TOTAL AND AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE AGGREGATE AMOUNT OF FEES PAID BY CUSTOMER FOR THE ASSISTABLE PLATFORM (OR FOR PROFESSIONAL SERVICES IF CUSTOMER IS NOT SUBSCRIBED TO THE ASSISTABLE PLATFORM) DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM WAS MADE. THE FOREGOING LIMITATION IS CUMULATIVE, WITH ALL PAYMENTS FOR CLAIMS OR DAMAGES BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT, AND THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THAT LIMIT. THE CUSTOMER EXPRESSLY AGREES AND ACCEPTS TO WAIVE ANY ADDITIONAL RIGHT TO CLAIM AMOUNTS IN EXCESS OF THE ABOVE.

10.2 Exclusion of Damages.  TO THE MAXIMUM EXTENT PERMITTED BY LAW,  IN NO EVENT WILL ASSISTABLE (OR ASSISTABLE’S THIRD PARTY LICENSORS OR SUBCONTRACTORS) HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, LOSS OF DATA, COST OF DATA RECONSTRUCTION OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE ASSISTABLE PLATFORM, SERVICES, PROFESSIONAL SERVICES OR DELIVERABLES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF ASSISTABLE OR ASSISTABLE’S LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.

11. Term, Termination and Suspension.

11.1 Term of Agreement or SOW.  

Monthly Plan.  If Customer elects a Monthly Plan, then upon the Effective Date of this Agreement, Customer will be given a fourteen (14) day free trial to utilize the Assistable Platform (the “14-day Free Trial”).  Upon termination of the 14-day Free Trial, if Customer continues to utilize the Assistable Platform any such use will be on a month-to-month basis (a “Monthly Term”) unless one party provides the other party with prior written notice of termination no less than fifteen (15) days prior to the expiration of the then current Monthly Term.  

Annual Plan.  If Customer elects an Annual Plan, then upon the Effective Date of this Agreement, Customer will be given a twenty-one (21) day free trial to utilize the Assistable Platform (the “21-day Free Trial”).  Upon termination of the 21-day Free Trial, if Customer continues to utilize the Assistable Platform, then the initial term of this Agreement shall be for a minimum period of one (1) year (the “Annual Initial Term”). Thereafter, this Agreement will automatically renew for additional one (1) year periods (each an “Annual Renewal Term” and together with the Annual Initial Term the “Annual Term”) unless one party provides the other party with prior written notice of termination no less than thirty (30) days prior to the expiration of the then current Annual Term.  

Professional Services pursuant to a SOW. Professional Services are for the period set forth in the applicable SOW (including any renewal terms stated therein) (the “SOW Term”).    

The parties acknowledge that if the Customer currently has in place sales agreements or other agreements with Assistable for use of the Assistable Platform or Services which were executed prior to the Effective Date of this Agreement (each a “Pre-Existing Agreement”), then this Agreement supersedes and replaces the Pre-Existing Agreement(s) as of the Effective Date of this Agreement.       

11.2 Termination. 
Either party may terminate this Agreement: (a) upon thirty (30) days prior written notice to the other party of a material breach of this Agreement by the other party if such breach remains uncured at the expiration of such notice period; or (b) immediately in the event the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.  In the event this Agreement is terminated, all SOWs are simultaneously terminated; provided however, that termination of a SOW will not terminate this Agreement.    

11.3 Effect of Termination. 
Upon any termination of this Agreement, Customer shall, as of the date of termination, immediately cease accessing and utilizing the Assistable Platform, any Services (except as permitted under Section 11.4 (Retrieval of Customer Data), and Assistable Confidential Information.  Customer will return all Assistable Confidential Information, at Customer’s expense, within fifteen (15) days of termination.  Termination for any reason will not relieve Customer of the obligation to pay any fees accrued or due and payable to Assistable prior to the effective date of termination.  Upon termination as a result of a material breach by Customer, all future amounts due for the remainder of the then current Monthly Term or Annual Term and under any SOWs, as applicable, will be accelerated and become due and payable immediately.  For the avoidance of doubt Customer’s only right to terminate this Agreement during the Monthly Term or Annual Term, as applicable, are set forth in Section 11.2b unless otherwise set forth in a SOW.  Those provisions that by their express terms survive or which by their nature should survive, will survive the expiration or any termination of this Agreement.  Termination of this Agreement by either party will not act as a waiver of any breach of this Agreement and will not act as a release of either party from any liability for breach of such party’s obligations under this Agreement.  Neither party will be liable to the other party for damages of any kind solely as a result of terminating this Agreement in accordance with its terms, and termination of this Agreement by a party will be without prejudice to any other right or remedy of such party under this Agreement or applicable Law.  

11.4 Retrieval of Customer Data. 
Upon written request by Customer made within thirty (30) days after any expiration or termination of this Agreement, Assistable shall make Customer Data and Customer Materials available to Customer in Assistable’s standard format on a limited basis solely for purposes of Customer retrieving Customer Data and Customer Material during such thirty (30) day period for a fee equal to the Customer’s monthly recurring revenue. If Customer desires Customer Data or Customer Materials to be provided in a format other than Assistable’s standard format, the parties may agree that Assistable will assist in providing the requested format pursuant to a SOW in exchange for additional fees for such assistance. After such thirty (30) day period, Assistable shall have no obligation to maintain or provide any Customer Data or Customer Materials and may thereafter, unless legally prohibited from doing so, delete all Customer Data and Customer Material.

If Customer requests retrieval of Customer Data or Customer Material after the expiration of the time period set forth in this Section 11.4, then, if Assistable, in its discretion has maintained the Customer Data and Customer Materials, Assistable may agree to provide the Customer Data and Customer Materials to Customer in Assistable’s standard format pursuant to a SOW for a fee.  The Customer understands and agrees that the fee may vary based on time elapsed since termination of this Agreement. Further, if Customer desires Customer Data or Customer Materials to be provided in a format other than Assistable’s standard format, the parties may agree that Assistable will assist in providing the requested format pursuant to a SOW in exchange for additional fees for such assistance.

11.5 Suspension of Service.
In addition to any other rights or remedies it may have under this Agreement or by Law, Assistable may immediately suspend provision of the Assistable Platform and Services without liability to Customer: (a) if Customer's account is more than thirty (30) days past due until paid in full; (b) if Customer breaches Section 3.1, Section 3.2 or Section 3.3 or any provision of the Acceptable Use Policy; (c) to avoid harm or liability to Assistable or its other customers, including in the case of denial of service attacks or other disruptions; or (d) if required by Law or requested by a governmental authority. With the exception of suspension pursuant to this Section 11.5(d), Customer shall remain liable for any fees and other amounts payable under this Agreement during any period of suspension. 

12. General Provisions.

12.1 Relationship of the Parties;
No Third-Party Beneficiaries.  The parties are independent contractors.  This Agreement does not create nor is it intended to create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.  The relationship of the parties described in this Agreement is non-exclusive. There are no third-party beneficiaries to this Agreement.  Notwithstanding the foregoing, the parties may amend or vary this Agreement in accordance with its terms without the consent of any other person.

12.2 Non-solicitation. 
During the Monthly Term, Annual Term or SOW Term, as applicable, of this Agreement and for a period of twelve months after termination or expiration of this Agreement, Customer shall not directly or indirectly solicit as an employee or independent contractor any employee working for Assistable. The parties acknowledge this provision does not apply to responding to unsolicited applications, or responding to unprompted responses to general advertisements, or independently (without direction or advice) presented by an independent recruiting firm.  

12.3 Subcontracting.  
Assistable may draw on the resources of (and subcontract to) its Affiliates and third party contractors and subcontractors, within or outside of the United States (each, a “Assistable Vendor”) for internal, administrative and compliance purposes or in connection with the hosting or provision of the Assistable Platform, Services and Professional Services and other products and services to be provided by Assistable pursuant to this Agreement.  Customer agrees that Assistable may provide information, data and materials that Assistable receives in connection with this Agreement (including Customer Data and Customer Materials) to the Assistable Vendors for such purposes. All Assistable Vendors shall agree to confidentiality provisions substantially similar to those set forth herein.  

12.4 Publicity.
Customer agrees that Assistable may use Customer's name and logo in lists of customers, on promotional and marketing materials and on its website.  

12.5 Notices. 
Except as otherwise set forth herein, all notices under this Agreement will be in writing and will be deemed to have been given upon: (a) personal delivery; (b) the third business day after mailing by registered post; or (c) the second business day after sending by facsimile with telephonic confirmation of receipt.  Notices to Assistable will be addressed to the attention of the Chief Executive Officer, in each case to the address in the introductory paragraph of this Agreement.  Notices to Customer will be addressed to Customer’s signatory of this Agreement at the address in the introductory paragraph of this Agreement.  Each party may modify its recipient and address of notices by providing notice pursuant to this Agreement. 

12.6 Waiver and Cumulative Remedies. 
No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right or any other right.  Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at Law or in equity.

12.7 Force Majeure. 
Neither party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that party’s reasonable control, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems, computer attacks or malicious acts, such as attacks on or through the internet, any internet service provider, telecommunications or hosting facility.  Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.  

12.8 Assignment. 
Neither party may assign any of its rights or obligations hereunder, whether by operation of Law or otherwise, without the prior written consent of the other party (which consent will not be unreasonably withheld).  Notwithstanding the foregoing, Assistable may assign this Agreement (including any SOWs) in its entirety without consent of Customer in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.  Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section will be void and of no effect.  Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns. 

12.9 Governing Law; Venue. 
This Agreement will be governed exclusively by the internal Laws of the State of Florida, USA, without regard to its conflicts of Laws rules.  Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement and irrevocably consents to the exclusive personal jurisdiction and venue of any state or federal court located in Florida, USA. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.  The Customer hereby irrevocably confirms that it has sought independent legal advice on the applicable law of this Agreement and that this has been a considered element when agreeing terms. As such, the Customer fully understands the consequences and costs that may be associated with this Agreement being governed by Florida, USA, law. The Customer understands and agrees to the consequences of this choice of law and the exclusive personal jurisdiction and venue provisions set forth herein and expressly renounces, abstains and refrains from invoking any local law dispositions to the contrary.  Customer hereby consents to service of process of any action filed under this Section via email.      

12.10 Class Action Waiver.
To the fullest extent permitted by applicable law, the parties agree that any dispute, claim, or controversy arising out of or relating to this Agreement, the Assistable Platform, the Services, or the relationship between the parties shall be brought solely in an individual capacity, and not as a plaintiff or class member in any purported class, collective, consolidated, or representative proceeding. The parties expressly waive any right to file or participate in any class action or seek relief on a class or representative basis. If a court determines that this waiver is unenforceable with respect to any claim, such claim shall be severed and stayed pending resolution of the remaining claims on an individual basis.

12.11 Export.  
Each party shall comply with the export Laws and regulations of the United States and other applicable jurisdictions in providing and using the Assistable Platform and Services.  Without limiting the generality of the foregoing, Customer shall not make the Assistable Platform or Services available to any person or entity that: (a) is located in a country that is subject to a U.S. government embargo; (b) is listed on any U.S. government list of prohibited or restricted parties; or (c) is engaged in activities directly or indirectly related to the proliferation of weapons of mass destruction.

12.12 US Federal Government End Use Provisions (if applicable). 
Assistable provides the Assistable Platform and Services, including related software and technology, for federal government end use solely in accordance with the following:  US government technical data and software rights related to the Assistable Platform and Services include only those rights customarily provided to the public as defined in this Agreement.  This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for US Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202.3 (Rights in Commercial Computer Software or Computer Software Documentation).  If a government agency has a “need for” right not conveyed under these terms, it must negotiate with Assistable to determine whether there are acceptable terms for transferring additional rights.  A mutually acceptable addendum specifically conveying such rights must be executed by the parties in order to convey such rights beyond those set forth herein.  

12.13 Miscellaneous. 
This Agreement, including all Exhibits hereto and any SOWs, constitutes the entire agreement between the parties with respect to the subject matter hereof.  This Agreement and all other associated documents, this to extend and include any and all correspondence and notifications, have been negotiated and are solely intended to be binding in their English version. All parties have agreed that only the English meaning of a word is binding. Any translation requested under any circumstance will only be applicable for the sole internal purposes of the Customer and will not be the basis of any claim, interpretation or award. In the unlikely event a local law would award or consider a translation of this Agreement a legal valid basis for a claim against Assistable, the Customer will hold Assistable harmless of any such award and any and all costs and legal fees associated with the proceedings giving rise to the award.   In the event of a conflict, the following order of precedence will apply: the Assistable policies referenced herein (Data Processing Addendum, Privacy Policy and Acceptable Use Policy), the terms of any SOW, the Exhibits to this Agreement and this Agreement.  This Agreement supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.  No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed (electronic signatures permitted as set forth below) by the party against whom the modification, amendment or waiver is to be asserted.  If the application of any provision of this Agreement to any particular facts or circumstances will be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement will not in any way be affected or impaired thereby and (b) such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.  Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer correspondence or order documentation will be incorporated into or form any part of this Agreement or any SOW, and all such terms or conditions will be null, unopposable and void.  Section headings are for convenience only and are not intended to affect the meaning or interpretation of this Agreement. A reference to a Section or Exhibit which does not specify a particular document is to the relevant Section or Exhibit of the document containing the reference. The words “hereby,” “herein,” “hereof,” “hereunder” or other words of similar meaning refer to the entire document in which they are contained, and the word “or” is not exclusive and the words “including” or “include” are not limiting. This Agreement may be executed in counterparts, which taken together will form one binding legal instrument. The parties hereby consent to the use of electronic signatures (including via a “click and accept” pop up) in connection with the execution of this Agreement and any amendments thereto and further agree that electronic signatures (including via a “click and accept” pop up) to this Agreement and any amendments thereto will be legally binding with the same force and effect as manually executed signatures.

12.14 Attorney Fees.
Customer shall pay on demand all of Assistable’s attorney fees and other costs incurred by Assistable in pursuing its rights and remedies under this Agreement, including but not limited to, collecting any unpaid fees, charges, penalties or other damages due to Assistable from Customer under this Agreement. 

13. Definitions.

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control by either party.  For purposes of the preceding sentence, “control” means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity.

“Assistable Platform” means Assistable’s hosted software-as-a-service platform for building, deploying, and managing natural-sounding AI voice and chat assistants, including (a) web applications, admin consoles, and runtime environments; (b) underlying software components such as model orchestration, speech/telephony integrations, NLU/NLG, knowledge-based tools, data pipelines, and analytics; (c) application programming interfaces (APIs), software development kits (SDKs), libraries, connectors, and configuration tools; (d) developer and operational tooling (including logging, monitoring, testing, and sandbox/demo environments); and (e) all related documentation and Improvements made available by Assistable. For clarity, the Assistable Platform is accessed and used within one or more Workspaces provisioned under this Agreement and excludes Services and any Customer Data or Customer Materials, software, or systems.        

“Authorized Parties” means Customer’s employees authorized to access and use the Assistable Platform and Services through the Assistable Platform’s security designation.

“Confidential Information” means (a) in the case of Assistable, the Assistable Platform and the Services (including any software (source code and object code) utilized by Assistable in the provision of the Assistable Platform or Services) and Work Product, and any improvements, modifications or extensions made to any of the foregoing; (b) in the case of Customer, Customer Data and Customer Materials; and (c) in the case of each party, the party’s business or technical information, including training materials, information relating to software plans, designs, costs, prices, finances, marketing plans, business opportunities, personnel, research, development or know-how that is designated by the disclosing party as “confidential” or “proprietary” or the receiving party knows or should reasonably know is confidential or proprietary in light of the nature of the information or the circumstances of its disclosure, and the terms, conditions and pricing of this Agreement (but not its existence or parties).

“Consumer” means any individual or entity, potential customer or customer of Customer.

“Customer” has the meaning set forth in the introductory paragraph of this Agreement.

“Customer Data” means the electronic data submitted by Customer, a Consumer or Authorized Parties to the Assistable Platform.

“Customer Materials” means information, data and materials made available to Assistable by Customer in connection with Assistable’s performance under this Agreement and any Order Form or SOW.

“Data” means information relating to Consumers and/or transactions conducted through the Assistable POS Platform, where such information is stored, transferred, or otherwise processed within the Assistable POS Platform.  The Data includes SKU-level transaction data if such data is made available to Customer. 

“Improvements” means all minor improvements, updates, enhancements, error corrections, bug fixes, release notes, derivative works, upgrades and changes to the Assistable Platform or Services, as developed by Assistable and made generally available for production use without a separate charge to customers.  Assistable has no obligation to develop Improvements.

“Intellectual Property Rights” means any and all common law, statutory and other industrial property rights and intellectual property rights, including copyrights, trademarks, trade secrets, patents and other proprietary rights issued, honored or enforceable under any applicable Laws anywhere in the world, and all moral rights related thereto.

“Law” means any local, state, national and/or foreign law, treaties, and/or regulations applicable to a respective party.

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

“New Product” means a release with significant new functionality and any associated user documentation which: (a) Assistable in its sole discretion designates as a new product; (b) is made generally commercially available by Assistable for a separate charge; and (c) is marketed by Assistable as a new product generally to its end user customers even if it is or is capable of being integrated with the Assistable Platform or Services.   

“Services” means any service provided by Assistable in connection with Workspaces, including but not limited to, transcription, phone numbers, telephony/voice minutes, knowledge-based tools, third-party pass-throughs, other billable add-ons and additional support services.

“User ID” means the unique user identification for sign in by Authorized Parties to the Assistable Platform.

“Work Product” means all materials, software, tools, data, inventions, works of authorship and other innovations of any kind, including, without limitation, the Deliverables, that Assistable, or personnel working for or through Assistable, may make, conceive, develop or reduce to practice, alone or jointly with others, in the course of performing Professional Services or providing Deliverables or as a result of such Professional Services of Deliverables, whether or not eligible for patent, copyright, trademark, trade secret or other legal protection.

“Workspace” means a discrete licensed instance of the Assistable Platform sold and provisioned under this Agreement.