Terms of Service

This Master Services Agreement (“Agreement”) is made by and between PackageX, Inc., a Delaware Corporation with its principal place of business at 500 7th Avenue, New Yor NY, 10018 ("PackageX" or “Company”), and the party identified in the Order Form (“Licensee” or “Customer”) on the date it is signed by both parties (“Effective Date”), (each a “Party” and collectively “Parties”).

WHEREAS, PackageX is a company that digitizes and connects inventory, fulfillment, shipping, delivery, and receiving operations to simplify logistics for retailers, warehouses, commercial businesses, universities, and other building types (the “Services”); and

WHEREAS, PackageX desires to sell Services to Customer and Customer desires to purchase Services from PackageX.

NOW, THEREFORE, in consideration of the mutual promises contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

1. Services

1.1 Orders. The Parties may enter into one or more mutually executed ordering documents (each, an “Order”) pursuant to which Customer’s may purchase or license Subscription Services, Subscription Support Services, and/or Professional Services (collectively referred to herein as the “Services”). Provider shall perform the Services set forth in each Order. An Order for Subscription Services shall describe the Subscription Services purchased thereunder, the licensing metric (e.g., tasks, API calls, users, locations, etc.), and the number of license entitlements. The initial Order is attached hereto and incorporated herein as Schedule A; and each subsequent Order shall be in substantially the same format as Schedule A or in such other format as mutually agreeable to the parties, which may include a Statement of Work (“SOW”) format, which shall also be considered an “Order”. There can be one or more valid Orders as part of Schedule A.

1.2 Services. Subject to the terms of this Agreement and payment of the amounts set forth on the applicable Order, PackageX will provide a specified number of End Users (as defined herein) with access to the PackageX Services, each a “Service” checked below, by checked below, Customer hereby agrees to the applicable terms and conditions applicable to each such Service and attached hereto:

☐ Software Terms, as set forth on Exhibit A (for Apps & ML Models)

☐ SDK License Agreement, as set forth on Exhibit B (for SDKs)

☐ API License Agreement, as set forth on Exhibit C (for APIs)

Customer may purchase any additional services not checked above at any time through an amendment to this MSA executed by both Parties.

1.3 Access and End Users. Certain of the Services are provided as subscription services, (the “Subscription Service”) shall mean the cloud hosted, on-premises hosted, on-device hosted, and/or on demand web-based or mobile based provision of applications including any algorithms, neural networks, embeddings, or inference systems embedded within the Apps or provided as part of the Services (“Machine Learning Models” or “ML Models”). application programming interfaces (“APIs”), software development kits (“SDKs”) and other platform services provided by PackageX, which is accessed from Customer owned and/or controlled computer systems and the associated mobile application, which is installed on Customer or end user owned and/or controlled mobile devices (“App”). The “Documentation” means the documentation describing the design, features, use of and functionality of the Subscription Service, including any other documentation provided by PackageX to Customer in connection with the Services. Only Customer and its designated employees and agents (“End Users”) may access and use the Subscription Service. Customer is permitted to terminate and re-designate individual employees and agents as authorized End Users. Customer and End Users are expressly prohibited from authorizing the sharing of login credentials, sharing login credentials with unauthorized individuals, or otherwise making the Subscription Service available to more than the number of End Users specified in the applicable Order.

1.4 Subscription Support Services. PackageX will provide to Customer reasonable technical support, maintenance, and generally available updates. Customer shall not contract with or otherwise allow a third party to provide assistance or support for the Subscription Services without the prior written consent of PackageX.

1.5 Professional Services. From time to time, Customer may engage PackageX to provide certain professional services (“Professional Services”), such as for training, implementation or customization of the Subscription Service (“Work Product”). Fees for Professional Services will be based on PackageX’s then applicable Professional Services rates. Each such engagement of Professional Services will be described in a Statement of Work that must be accepted in writing by an authorized representative of each Party. In the event of a conflict between the terms provided in this Agreement and the terms of any Statement of Work, the terms of this Agreement will prevail, except that the terms of the Statement of Work shall prevail over conflicting terms of this Agreement (but only with respect to such applicable Statement of Work) where the Statement of Work explicitly identifies such conflicting terms and confirms the intent of the Parties to supersede or modify the conflicting term of this Agreement.

1.6 Changes to Subscription Service. To ensure quality of Service for all users, the Customer agrees to abide by our any of the Company’s fair usage polices which may be modified from time to time at the discretion of the Company. Excessive or unreasonable usage, as determined by the Company, may result in slowed speeds or service restrictions. Furthermore, the Company may modify or delete any features of the Subscription Service in any manner that: (a) does not have an adverse impact on the Subscription Service or (b) may be necessary to meet any applicable legal, regulatory, or industry-standard requirements or demands. PackageX shall notify Customer as promptly as practicable in advance of such changes to the Subscription Service under clause (b) that have an adverse impact on the Subscription Service. In the event that Customer believes a change to and Customer’s use of the Subscription Service, as set forth in this Section, has caused an adverse impact on Customer’s ability to comply with the terms of this Agreement or on Customer’s use of the Subscription Service, Customer will promptly contact PackageX in order to address the impact Customer has experienced. If PackageX is unable to correct the adverse impact in a timely manner, Customer may terminate this Agreement upon thirty (30) days’ prior notice to PackageX and receive a pro rata refund of any prepaid fees.

2. Fees and Payment

2.1 Fees. Customer shall pay the amounts set forth in the applicable Order executed between the Parties and incorporated herein by reference for the Services.

2.2 Invoices. All invoices will be issued with the frequency and terms as specified in the applicable Order. All payments shall be made in U.S. Dollars by ACH, bank wire or other form of transfer. PackageX shall notify Customer in writing of any undisputed overdue amounts and if Customer fails to pay such overdue amounts within fifteen (15) days of receipt of written notice thereof, such overdue amounts may be subject to a late payment charge at the lesser of one and one half percent (1.5%) per month or the highest rate permissible under applicable law, whichever is lower, for the actual number of days elapsed from the date due. Any payment not received from Customer by the due date may result in suspension of Customer’s ability to access the Services in accordance with Section 13.4. Customer shall pay any applicable state, federal, or other sales and use taxes (except for taxes on PackageX’s net income) that may be associated with the purchase of the Services under this Agreement, and PackageX may collect all applicable sales taxes. If Customer claims tax-exempt status, Customer will provide PackageX with documentation of such status. If required for PackageX’s performance of the Professional Services in accordance with this Agreement, all reasonable, actual, out-of-pocket travel related expenses, such as airfare, hotel, transportation, and meals, approved in advance in writing by Customer will be billed to Customer for any on-site work performed under this Agreement. Upon Customer’s request, PackageX shall provide reasonable documentation and receipts supporting any such travel-related expenses.

2.3 Disputes. If Customer has a good faith dispute regarding payment for a particular Service, such dispute shall not entitle Customer to withhold payment for any other Service.

3. Data Privacy

3.1 Customer Data. As between the parties, Customer owns all right, title and interest in all data and/or content created or provided by Customer and its End Users, including the output from the Subscription Services resulting from the processing of such data (“Customer Data”). Nothing in this Agreement shall be construed to grant PackageX any rights in Customer Data beyond those expressly provided herein. As between PackageX and Customer, Customer is solely responsible for (i) the content, quality and accuracy of Customer Data as made available by Customer and by End Users, (ii) providing notice to data subjects with regards to how Customer Data will be collected and used for the purpose of the Subscription Services, (iii) ensuring Customer has a valid legal basis for processing Customer Data and for sharing Customer Data with PackageX (to the extent applicable), and (iv) ensuring that the Customer Data as made available by Customer complies with applicable data protection laws.

3.2 Use of Customer Data. Customer grants PackageX the limited, non-exclusive right to use the Customer Data solely for the purpose of providing the Services to Customer (including routine actions taken to enable data backups and disaster recovery and business continuity procedures). PackageX will process Customer Data in compliance with Applicable Laws and will not sell, rent, or commercially exploit any Customer Data for any purpose whatsoever except as specified in this Agreement.

3.3 Use of Customer Meta-Data. Customer grants PackageX the limited, non-exclusive right to view, and use the Customer Data to create Customer meta-Data, for the purpose of providing and improving the Subscription Services.

3.4 Use of Aggregated Data. Customer grants PackageX the right to collect and use non-identifiable aggregated Data for PackageX’s reasonable business purposes, including without limitation for analyzing customer needs and improving the Services.

3.5 Publicity and Trademarks. The Customer grants PackageX the right to use Customer’s name and logo on its website, or promotional marketing materials as a current or former customer and as a reference in other public or private communications or disclosures with its existing or potential customers and investors. Company agrees that nothing in this Agreement shall give any right, title, or interest in or to Customer’s trademarks other than the right to use such trademarks in the manner contemplated herein.

3.6 Processing of Personal Data. To the extent required by applicable laws, Customer shall provide, and PackageX shall process, personal data created or provided by Customer to PackageX in compliance with the Data Processing Addendum, available on PackageX website. In particular, if Customer is established in the European Economic Area ("EEA") or in the United Kingdom ("UK") and will, in connection with the Services, provide PackageX with personal data relating to an individual located within the EEA or in the UK, the DPA will apply. Without limitation to the foregoing, Customer shall ensure that its instructions comply with all laws, regulations and rules applicable to such personal data.

4. Ownership

4.1 PackageX Property. PackageX owns all right, title and interest in and to: (a) the Services and the technology, software, hardware, products, processes, algorithms, user interfaces, documentation, user manuals and know-how related to the Services; (b) any and all PackageX Confidential Information (see Section 11); (c) Anonymized Data (as defined below); (d) any and all work product produced pursuant to any Professional Services provided under this Agreement; and (e) and any and all Intellectual Property Rights embodied in (a)-(e) (collectively the “PackageX Property”). “Intellectual Property Rights” means patents, inventions, utility models, trademarks, service marks, trade and service names, copyrights, database rights and design rights (whether or not any of them are registered, and including applications for registration of any of them), rights in know-how, moral rights, trade secrets and rights of confidence and all rights or forms of protection of a similar nature or having similar or equivalent effect to any of them which may exist anywhere in the world. Except as otherwise agreed to by the Parties in a Statement of Work, PackageX shall own any and all developments, inventions and work product created under any Professional Services, including but not limited to training materials, implementation guides and customizations of the Subscription Service. PackageX shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer and End Users relating to the Services (“Feedback”), provided that such Feedback does not contain Customer Confidential Information and does not, and cannot be used to, identify Customer or any End Users. All rights not expressly granted to Customer herein are expressly reserved by PackageX.

5. Customer Responsibilities

5.1 Restrictions. Customer shall not, directly or indirectly: (i) remove any notice of proprietary rights from the Subscription Services, (ii) modify or reverse engineer any part of the Subscription Services, (iii) except to the limited extent applicable laws specifically prohibit such restriction, decompile, attempt to derive the source code or underlying ideas or algorithms of any part of the Subscription Services, attempt to recreate the Subscription Services or use the Subscription Services for any competitive purpose, (iv) copy, modify, translate or otherwise create derivative works of any part of the Subscription Services, (v) sell, resell, encumber, rent, lease, time-share, distribute, transfer or otherwise use or exploit or make available any of the Subscription Services to or for the benefit of any third party, or (vi) use the Subscription Services to infringe on the intellectual property rights, publicity rights, or privacy rights of any third party, or to store defamatory, trade libelous, or otherwise unlawful data. Customer’s authorized use of the Subscription Services is subject to the purchased quantities and features set forth in Schedule A for the Subscription Services, and any usage guidelines and acceptable use policies to the extent applicable to Customer’s use of the Subscription Services.

5.2 Third Party Materials. The Subscription Services may include open source software programs that are made available by third parties under their respective open source licenses as indicated in the Documentation (“Third Party Materials” and “OSS Licenses”, respectively). PackageX warrants that such Third Party Materials will not diminish the license rights provided to Customer herein, or limit Customer’s ability to use the Services in accordance with the Documentation, or create any obligation on the part of Customer to license Customer’s software or products under any open source or similar license. Nothing herein shall derogate from mandatory rights Customer may have under any OSS Licenses, if any.

5.3 Mobile Device. Some of the Services may be delivered through mobile applications that may need to be used via a mobile phone, tablet or other wireless device (“Mobile Services”). All use of the App and the related Mobile Services must be in accordance with this Agreement and the PackageX Mobile EULA available on PackageX website.

5.4 Liability for Content. Customer shall be responsible for, and under no circumstances will PackageX or its Affiliates or any of their licensors or suppliers be responsible, for any loss, damage or liability arising out of any Customer Data, including any mistakes or inaccuracies contained in the Customer Data, the use (or misuse or misappropriation) or subject matter of the Customer Data, or Customer Data while it resides in or is stored on Customer Equipment. Customer is solely responsible for uploading Customer Data for storage in accordance with the Documentation.

5.5 Security of Account. Customer agrees to maintain all reasonable security regarding its and its End Users’ account ID, password, and connectivity, including its computer networks. If Customer’s or its End Users’ account ID or password are stolen, or otherwise compromised, upon becoming aware of such compromise, Customer shall promptly change the password and inform PackageX of the compromise. Customer shall be responsible, and under no circumstances will PackageX or its Affiliates or any of their licensors or suppliers be responsible, for any loss, damage or liability arising out of any compromise of Customer’s and its End Users’ access credentials, Customer Equipment and/or computer networks except if such compromise of Customer’s or its End Users’ access credentials, Customer Equipment and/or computer networks was caused by a breach of security of the Services or PackageX’s systems.

5.6 Location of Use. Customer agrees and acknowledges that all use of the Subscription Service by it and its End Users will occur in the United States of America (USA). If there is any use expected outside the USA, the Customer shall provide a written notice to PackageX in advance so any infrastructure and or compliance requirements can be looked into in advance before PackageX consents to any use of Subscription Service outside of the USA.

5.7 Security Requirements. Customer agrees and acknowledges that it maintains (a) industry standard information, physical and administrative security protocols, including virus protection, for all Customer equipment; and (b) reasonable security policies designed to prevent unauthorized access to the Subscription Service.

6. Hosted Security.

PackageX maintains, and will continue to maintain throughout the Term of this Agreement, appropriate administrative, physical, and technical security measures to protect the security, integrity, and confidentiality of Customer Data, which measures include safeguards to prevent unauthorized access to or disclosure of Customer Data in accordance with applicable law.

7. Audit.

During the Term of this Agreement and for a period of one (1) year thereafter, PackageX shall have the right (at its own expense, upon reasonable notice, and no more frequently than once per calendar year) to request Customer to confirm in writing that it has paid the correct amounts owed under this Agreement and complied with the usage metrics and limitations set forth herein, and to provide supporting documentation as reasonably requested by PackageX including any ML execution logs, telemetry data, and Customer owned infrastructure verification hosting any ML Models. Customer will, and shall cause its Affiliates, employees, subcontractors, agents, representatives and consultants, to cooperate in good faith with such audit activities. In the event that any such audit reveals an underpayment by the Customer hereunder, and such underpayment is confirmed, Customer shall promptly reimburse PackageX for the amount of such underpayment during the applicable billing period in accordance with Schedule A.

8. Representations and Warranties; Disclaimer of Warranties

8.1 Mutual Representations and Warranties. Each Party represents and warrants to the other Party as of the Effective Date that: (a) it has the full right, power and authority to enter into this Agreement, to perform its obligations hereunder, and (b) this Agreement has been duly executed by it and is legally binding upon it, enforceable in accordance with its terms, and does not conflict with any agreement, instrument or understanding, oral or written, to which it is a Party or by which it may be bound, nor violate any Law having jurisdiction over it.

8.2 PackageX Representations and Warranties.

8.2.1. PackageX warrants that the Subscription Service, when properly used for the purpose and in the manner specifically authorized by this Agreement and in accordance with the Documentation, will perform materially in accordance with the Documentation (the “Warranty”). The Warranty in this Section 8.2.1 shall not apply to the Subscription Service to the extent that the Subscription Service has been modified by any party, other than PackageX or its agents. PackageX shall have no obligation to Customer under this Warranty if (a) the failure of the Subscription Service to meet the Warranty is directly attributable to Customer Equipment, third party software or hardware or Customer Data; (b) the failure of the Subscription Service to meet the Warranty is due to Customer’s failure to use the Subscription Service as described in this Agreement or in accordance with the operational requirements in the Documentation; or (c) Customer has failed to pay any undisputed fees for the Subscription Service set forth on Schedule A in accordance with this Agreement.

8.2.2. PackageX represents and warrants that any Professional Services will be performed by trained individuals in a professional and workperson-like manner, and in accordance with all requirements and any time frames set forth in the applicable Schedule A.

8.3 Exclusive Remedy. PackageX’s sole obligation and Customer’s sole remedy for breaches of the warranty in Section 8.2.1 and 8.2.2 is for PackageX to use commercially reasonable efforts to provide services to correct the failure of the Subscription Service to comply with the warranties set forth in Sections 8.2.1 and 8.2.2. THE FOREGOING REMEDY IS EXCLUSIVE, IS SUBJECT TO THE LIMITATIONS SET FORTH HEREIN AND SHALL BE CUSTOMER’S SOLE REMEDY WITH RESPECT TO ANY CLAIM OF BREACH OF THE WARRANTIES SET FORTH IN SECTIONS 8.2.1 AND 8.2.2.

8.4 Customer Representations and Warranties. Customer represents and warrants that it will, and will require that its End Users, use the Services only in accordance with all applicable laws. Customer may deploy ML Models on its own infrastructure only via authorized license authentication and tracking. Customer shall not bypass or disable metering, telemetry, or license controls. Any such attempt will be considered a material breach.

8.5 Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8, PACKAGEX MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED ORSTATUTORY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY OR COMPLETENESS, OR NON-INFRINGEMENT. PACKAGEX DOES NOT WARRANT, REPRESENT, OR GUARANTEE THAT THE SERVICES SHALL BE UNINTERRUPTED, ERROR-FREE. FURTHER, CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT THE SERVICES MAY BE CONTINGENT ON THIRD PARTY PERFORMANCE AND PACKAGEX CANNOT GUARANTEE AND IS NOT LIABLE FOR THE SAME. Further, PackageX does not and cannot control the performance of Internet or cellular services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt Customer’s connections to the Internet or cellular service (or portions thereof). Although PackageX will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, PackageX cannot guarantee that such events will not occur. PACKAGEX DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THE PERFORMANCE OR NON- PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES WHICH ARE NOT PACKAGEX’S SUBCONTRACTORS.

8.6 Warranties to Customer Only. The warranties stated in this Section are made only to Customer and PackageX shall have no liability to any third party, including any End User, with respect to the Services as a result of the warranties contained herein.

8.7 PackageX represents and warrants that (i) it has all rights, licenses, consents and authorizations necessary to grant the rights granted in the Agreement; (ii) it will use commercially reasonable efforts to ensure that the App, and Services do not contain and will not transmit to Customer or Customer’s systems any viruses, Trojan horses, timebombs, or any other code or mechanisms designed to impede the operation of computer systems; (iii) the Documentation accurately and completely reflects the functionality of the Services; and (iv) it will comply with all applicable laws in the performance of its obligations under this Agreement.

9. Limitation of Liability

9.1 Liability Limitation. In no event shall either Party have liability arising out of or pertaining to this Agreement to the other Party or any other third party for any special, incidental, exemplary, consequential, punitive, or indirect damages of any kind based on any claim or legal theory, including but not limited to, damages for loss of data, lost opportunity, lost savings, lost profits, loss of use, business interruption or cost of substitute services or technology, even if informed of the possibility of any such damages in advance. Additionally, neither Party’s aggregate liability to the other Party and any affiliates and their respective officers, directors, employees, and End Users for any liability arising under this Agreement regardless of the form of action (including, but not limited to, actions for breach of contract, negligence, strict liability, rescission and breach of warranty) shall exceed an amount equal to the fees paid or payable by Customer in the twelve (12) months preceding the event giving rise to the claim. The limitations on and exclusions from liability set forth in this Agreement shall not apply to either Party’s indemnification obligations as set forth in Section 10.1, and 10.2, or gross negligence or willful misconduct. This limitation of liability shall apply to the maximum extent permitted by applicable LAWS AND NOTWITHSTANDING THE FAILURE OF ANY LIMITED REMEDY.

9.2 Transmission of Data. PackageX is not responsible for loss or alteration of Customer Data in transmission, due to improper transmission by Customer or an End User, or failure by Customer, an End User or any third party to act on any communication transmission to or by Customer or an End User through the Subscription Service.

10. Indemnity

10.1 PackageX’s Indemnification Obligations. PackageX shall defend, indemnify, and hold harmless Customer and its Affiliates, and their respective directors, officers, and employees against any and all losses, liabilities, damages, costs, and expenses (including reasonable attorneys’ fees) (“Losses”) arising out of any third party claim (“Claims”) (i) that the Services or the use thereof by Customer, when used within the scope of and in accordance with this Agreement and the Documentation, infringes or misappropriates a patent, copyright, or other intellectual property right of such third party; or (ii) PackageX’s gross negligence or willful misconduct. In the event that the Services in the opinion of PackageX, is likely to or does become the subject of a claim of infringement or misappropriation, PackageX shall have the right at its sole option and expense to: (a) modify the Services to be non-infringing provided that such modification does not fundamentally change the functionality of the Services; (b) obtain for Customer a license to continue using the Services at no additional charge to Customer; or (c) if neither (a) nor (b) are commercially practicable, terminate this Agreement and refund to Customer the pro rata portion of fees paid to PackageX for such portion of the Services thereof that cannot be utilized due to such infringement or misappropriation. PackageX shall have no liability under this Section 10 to the extent any such Claim is based upon: (a) any component of software provided by Customer or any third party used with the Services, if the Claim would not have arisen but for such component of software; (b) any modification to the Services by a party other than PackageX, unless such modification was at the direction of PackageX, if the Claim would not have arisen but for such modification; (c) the combination, operation or use of the Services with a software program(s) or data not part of Services if the claim would have been avoided had such combination, operation or use not occurred; (d) the Services being used in a manner not authorized by this Agreement, if the Claim would not have arisen but for such use; and (e) continued use of the Services from the date of written notice wherein PackageX informs Customer that such continued use may lead to a Claim and Customer had a reasonable period of time to cease such use. This Section 10.1 sets forth PackageX’s sole and exclusive obligation and liability, and Customer’s sole and exclusive remedy, for any infringement or misappropriation of intellectual property rights of any kind.

10.2 Customer’s Indemnification Obligations. Customer shall indemnify, defend and hold harmless PackageX and its Affiliates, and their respective directors, officers, shareholders, employees, contractors and agents from and against any and all Losses arising out of any Claim (i) that Customer Data in the form provided by Customer or End Users to PackageX, infringes or misappropriates a patent, copyright, or other intellectual property right of such third party; (ii) arising out of Customer’s and/or its End Users’ failure to comply with any applicable Law to which it may be subject in the use of the Services; or (iii) Customer’s gross negligence or willful misconduct . Customer shall have no liability under this Section 10.2 to the extent any such Claim is based upon: (a) PackageX’s unauthorized use or modification of Customer Data; or (b) PackageX’s breach of this Agreement.

10.3 Indemnification Procedure. The Party seeking indemnification under this Section 10 (the “Indemnitee”) shall: (a) give the Party having the indemnification obligation (the “Indemnitor”) prompt notice of any claim, provided that failure to provide prompt notice shall not relieve the Indemnitor of its indemnification obligations hereunder; (b) allow the Indemnitor to have sole control over the defense and settlement of the claim, provided, however, that the Indemnitee shall have the option, at its sole discretion, to participate in the defense of any such claim using attorneys selected by it, the costs and expenses of which shall be the responsibility of Indemnitee; and (c) provide all assistance reasonably requested by Indemnitor, at Indemnitor’s expense, in the defense and settlement of the claim. The Indemnitor will not consent to the entry of any judgment or enter into any settlement with respect to a Claim without the Indemnitee’s prior written consent (not to be unreasonably withheld or delayed) unless: (i) the judgment or proposed settlement involves only the payment of monetary damages by the Indemnitor, and does not impose injunctive or other equitable relief upon or otherwise adversely affect the Indemnitee; (ii) there are no additional Claims pending against the Indemnitee, and no adverse impact on existing Claims, as a result of the judgment or proposed settlement; and (iii) the Indemnitee will have no liability with respect to such judgment or proposed settlement and will not otherwise be materially and adversely affected by the terms of such settlement.

11. Confidentiality.

“Confidential Information” means any confidential and proprietary information related to a Party’s business belonging to one Party (“Discloser”), and disclosed to the other Party (“Recipient”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including information concerning research, development, design details and specifications (including beta versions of functionality), financial information, procurement requirements, engineering and manufacturing information, customer lists, business forecasts, sales information and marketing plans, internal business processes, product designs, the terms and conditions of this Agreement (including pricing and other terms reflected in Exhibits hereto or other order forms), and any additional information that any End User or other third party has disclosed to Discloser in confidence and that Discloser is permitted to disclose to Recipient under the terms and conditions of this Agreement. Any information related to the Services or other PackageX Property shall be deemed to be the Confidential Information of PackageX, and any Customer Data shall be deemed to be the Confidential Information of Customer. Recipient shall only use Confidential Information of the Discloser for the purposes of this Agreement and shall keep such information in strict confidence. Recipient shall restrict disclosure of Confidential Information solely to its employees, attorneys, accountants, contractors and other representatives with a need to know, not disclose it to any third parties, except End Users as permitted hereunder, and use no less than reasonable care in its obligations. Except as expressly set forth elsewhere in this Agreement, all Confidential Information shall remain the property of the respective Discloser. Information will not be deemed “Confidential Information” if such information: (a) is generally available to the public (other than through breach of this Agreement); (b) is received form a third party lawfully empowered to disclose such information without being subject to an obligation of confidentiality; or (c) was rightfully in the Recipient’s possession free of any obligation of confidence at the time it was communicated to the Recipient. Notwithstanding the above, the Recipient will not be in violation of this Section 11 with regard to a disclosure that was in response to a valid order by a court or other governmental body, provided that the Recipient provides the Discloser with prompt written notice of such disclosure where legally permitted in order to permit the Discloser to seek confidential treatment of such information.

12. Governing Law.

This Agreement shall be governed by the laws of the state of New York, without giving effect to any conflict of law principles. The Parties hereby waive any objection to the exclusive jurisdiction and venue of the state and federal courts in New York County, New York.

13. Term and Termination

13.1 Term. This Agreement shall commence on the Effective Date and shall continue in effect for a period of two (2) years (the “Initial Term”). Following the Initial Term, this Agreement will automatically renew for subsequent terms of the same length as the Initial Term, and in any event, at least twelve (12) months (each, a “Renewal Term”). Either Party may terminate this Agreement by giving written notice of non-renewal within sixty (60) days prior to the end of the Initial Term or Renewal Term, as applicable.

13.2 Termination for Breach. This Agreement may be terminated by either Party for material breach if such breach has not been cured by the other Party within thirty (60) days’ of receipt of written notice of such breach by such other Party. If this Agreement is terminated by PackageX as a result of a material breach by Customer, Customer shall remain liable for the payment for the entire Services Fee, as applicable, for the then current Term, as the case may be. If this Agreement is terminated by Customer as a result of a material breach by PackageX, PackageX shall provide Customer a pro rata refund of any prepaid Services Fees for the then current Term.

13.3 Auto-Renewal and Notice of Non-Renewal. Unless otherwise set forth on an Order, the Subscription Term on each Order will automatically renew for successive monthly or annual periods, unless either party gives the other party notice of non-renewal at least (i) fifteen (15) days prior to end of the Subscription Term for Customers on Monthly Subscription; or (ii) sixty (60) days prior to the end of the Subscription Term for Customers on Annual Subscription or Multi-Year Subscription. PackageX will provide Customer a reminder notice along with any applicable renewal documentation (which can be a quote, a renewal order form or other forms in writing) at least sixty days (60) days prior to the renewal date. All such notices for non-renewal have to be sent to support@packagex.io.

13.4 Suspension. PackageX may suspend the provision of the Services to Customer under this Agreement effective immediately upon notice if: (a) Customer fails to pay any portion of the fees due under to it within fifteen (15) days after receiving written notice from PackageX that payment is past due; (b) Customer or an End User breaches Section 5 (Customer Responsibilities) and fails to cure such breach within fourteen (14) days of receipt of written notice from PackageX describing the breach in reasonable detail; or (c) if Customer’s or an End User’s use of the Services: (i) poses a security risk to the Services or any other third party, or (ii) may adversely impact PackageX’s systems, networks, any PackageX Property or the data of any other PackageX Customer. Any such suspension of the Services shall be to the minimum extent required, and of the minimum duration, to prevent harm to PackageX and/or the Services.

13.5 Effect of Termination: Upon expiration or termination of this Agreement under this Section 13, PackageX shall immediately terminate Customer and any End Users’ access to the Services. Customer is responsible for exporting any Customer Data or to request export of Customer Date to which Customer desires continued access after termination. PackageX shall have no liability for any failure of Customer to retrieve itself prior to termination or request retrieval of such Customer Data from PackageX and shall have no obligation to store or retain any such Customer Data following termination, however, the upon Customer request PackageX shall assist the Customer to create a backup of then current Customer Data on record and provide it to them. Upon Customer’s request, PackageX will return or destroy using a non-recoverable method, Customer Data, excluding Anonymized Data. PackageX will be permitted to retain Customer’s Confidential Information if such retention is strictly necessary to meet PackageX’s legal compliance obligations, is done pursuant to PackageX’s records management program, and is limited to the minimum Customer Confidential Information and minimum retention period needed to meet these obligations. PackageX will invoice Customer for all amounts due and payable prior to the date of such expiration or termination and, except in the event of termination by Customer due to breach by PackageX, all unpaid Subscription Fees that would become due under the then-current Subscription period if such termination did not occur.

13.6 Survival. Sections 2 (Fees and Payment), 3 (Data Privacy), 4 (Ownership), 7 (Audit), 8.3 (Exclusive Remedy), 8.5 (Disclaimer of Warranties), 8.6 (Warranties to Customer Only), 9 (Limitation of Liability), 10 (Indemnity), 11 (Confidentiality), 12 (Governing Law), 13 (Term and Termination), and 14 (General).

14. General

14.1 Independent Contractors. The Parties are independent contractors. Nothing in this Agreement shall be construed to create a joint venture, partnership, franchise, or an agency relationship between the Parties.

14.2 Subcontractors. PackageX acknowledges that it will remain fully responsible and liable for the acts or omissions of any subcontractors it uses in the performance of its obligations under this Agreement as if such acts or omissions had been performed by its own personnel.

14.3 Assignment. Neither party may assign any of its rights or obligations under this Agreement without the other party’s prior written consent, which will not be unreasonably withheld. Notwithstanding the foregoing, either party may assign any and all of its rights and obligations under this Agreement to a successor in interest in the event of a merger or acquisition or to an Affiliate, upon prior written notice to the other party. The terms of this Agreement shall be binding upon the permitted successors and assigns of each party.

14.4 Entire Agreement. This Agreement as executed by the Parties constitutes the complete and exclusive agreement and understanding between the Parties and terminates and supersedes any prior agreement or understanding relating to the subject matter hereof between PackageX and Customer. None of the provisions of this Agreement can be waived or modified except in a writing signed by both Parties. There are no representations, discussions, proposals, promises, agreements, warranties, covenants or undertakings, whether oral or written, other than those contained herein. This Agreement and its Exhibits herein will prevail over any “click-to-accept” or “shrink wrap” terms agreed to in the course of downloading or installing the Services.

14.5 Notices. Notices must be in writing; delivered: (a) personally; (b) by certified mail return receipt requested; (c) by upon successful transmission of an email containing such notice if sent between 9 a.m. and 5 p.m., local time of the recipient, on any Business Day, and as of 9 a.m.local time of the recipient on the next Business Day if sent at any other time; or (d) by a nationally recognized overnight courier service; and addressed to the addresses set forth below. Each notice shall be deemed given upon receipt of such notice by the other Party. All notices shall be sent to the Parties at the following addresses:

To PackageX:
PackageX, Inc.
500 7th Avenue, 8th Floor
New York, NY, 10018, USA
Attn: Chief Executive Officer
Email for notices: support@packagex.io

To Customer:
As specified in the applicable Order

14.6 Force Majeure. Neither Party will be in default or otherwise liable for any delay in or failure of its performance under this Agreement if such delay or failure arises by any reason beyond its reasonable control, including any act of God, or any acts of the common enemy, the elements, earthquakes, floods, fires, epidemics, riots, failures or delays in transportation or communications, internet or telecommunications failures, cyberattacks or any act or failure to act by the other Party, its employees, agents or contractors (“Force Majeure Event”). The Parties will promptly inform and consult with each other as to any of the above causes, which in their judgment may or could be the cause of a substantial delay in the performance of this Agreement.

14.7 Severability. If one or more provisions of this Agreement are held to be unenforceable under applicable laws, the remainder of this Agreement will continue in full force and effect and the application of such provisions will be interpreted so as to reasonably effect the intent of both Parties.

14.8 Waiver; Modification. If a Party waives any term or provision or the other Party’s breach of this Agreement, such waiver shall not be effective unless it is in writing and signed by the Party against whom such waiver is asserted. No waiver by a Party of a breach of this Agreement by the other Party shall constitute a waiver of any other or subsequent breach by such other Party. This Agreement may be modified only if authorized representatives of both Parties consent in writing.