TRAAS Subscription Services Agreement

OEM AND SERVICES TERMS

1. OEM AND SERVICES TERMS
   a. Non-Exclusive OEM. Numonix provides OEM the non-exclusive right to promote, market, sell, and support the Services to Subscribers.
   b. Third-Party Services. The Service interoperates with one or more third-party services (e.g., Skype for Business, ShoreTel, AudioCodes, Microsoft Teams, etc.) and depends on continuing availability and access to such third-party services and any data or information interfaces (“Third-Party Services”). If for any reason the Service cannot access or use the applicable Third-Party Service (including, without limitation, changes in terms or increases in fees charged by a third-party service provider), Numonix may not be able to provide all Service functions. No refund or credit will be provided for unavailability of any Third-Party Services.
   c. Services. So long as Numonix does not materially degrade the Services, it may change the Services at any time. Numonix may separately price certain additional functionality as add-on modules for a separate fee. OEM determines pricing for Subscribers.
2. ORDERING AND FULFILLMENT
   a. Order Process. For each Bot subscription to be sold to a Subscriber, OEM must place an order with Numonix. The parties must agree to the terms of the applicable order in writing. All orders are governed by this agreement.
   b. SSA. Each Subscriber must enter into an SSA with OEM before accessing or using the Service. “SSA” means the subscription services agreement between a Subscriber and OEM for internal use of the Service, with terms materially no less protective of Numonix than those in Exhibit A.
   c. Payments. OEM will pay Numonix the fees within thirty (30) days of receipt of invoice. Fees are exclusive of sales, use, withholding, VAT, and other similar taxes. OEM is responsible for payment of such taxes at the rate and in the manner prescribed by law.
3. OPERATIONAL OBLIGATIONS
   a. Numonix. Numonix will provide commercially reasonable pre-sales support to OEM.
   b. OEM. OEM must:
   • conduct business in a manner that reflects favorably on the Service and the good name, goodwill, and reputation of Numonix;
   • avoid deceptive, false, misleading, or unethical practices that are detrimental to Numonix;
   • make no representations, warranties, or guarantees to Subscribers regarding the specifications, features, or capabilities of the Service that are inconsistent with the Service or its functionality; and
   • pay its expenses associated with its activities under this agreement.
   c. Numonix Level 3 Support Obligations. Numonix will make reasonable commercial efforts to promptly respond to and assist OEM on technical support issues with appropriate technical support personnel. More details on Numonix’s support program are located at https://numonix.io/contact-us/#support.
4. INTELLECTUAL PROPERTY AND CONFIDENTIALITY
   a. Proprietary Rights. Numonix or its suppliers own all right, title, and interest, including all intellectual property rights, in and to the Service. Numonix reserves all rights not expressly granted.
   b. Mutual Confidentiality.
   • During and after the Term, neither party may use (other than for purposes of this agreement) or disclose to any third party any Confidential Information of the other party. The receiving party may disclose Confidential Information to its employees and contractors with a need to know who are bound by confidentiality terms no less protective than those in this agreement.
   • “Confidential Information” means all non-public technical and business information a party designates as confidential or which, under the circumstances of disclosure, reasonably ought to be treated as confidential, including, without limitation, the terms of this agreement, business and marketing plans, technology roadmaps, source code, and trade secrets.
   • Confidential Information excludes information that: (i) was previously known without restriction; (ii) is received from a third party without restriction; (iii) is independently developed without use of or access to the Confidential Information; or (iv) becomes publicly available through no fault of the receiving party. A party may disclose the other party’s Confidential Information if required by applicable law or legal process (at the expense of the other party), but will seek protection for such information and, to the extent allowed by law, provide prior notice so that the other party may seek a protective order.
5. TERM AND TERMINATION
   a. Termination for Material Breach. If either party is in breach of any material term of this agreement, the other party may terminate this agreement at the end of a thirty (30) day notice/cure period if the breach has not been cured.
   b. Termination Without Cause. Either party may terminate this agreement without cause by providing sixty (60) days’ notice to the other party.
   c. Return or Destruction of Materials. Upon termination of this agreement for any reason, the Service will terminate, and OEM must destroy Numonix Confidential Information and any other Numonix property and, at Numonix’s request, certify such destruction in writing.
6. WARRANTY
   a. Service Levels. Numonix provides a service level for the Service as described in Exhibit C.
   b. LEGAL DISCLAIMER. THE SERVICE MAY ONLY BE USED IN ACCORDANCE WITH APPLICABLE LAWS (INCLUDING, WITHOUT LIMITATION, REGARDING RECORDING AND STORING OF TELEPHONE CONVERSATIONS). OEM AND ITS SUBSCRIBERS ARE SOLELY RESPONSIBLE FOR ENSURING THAT THEIR USE OF THE SERVICE IS IN ACCORDANCE WITH ALL APPLICABLE LAWS.
   c. Authorizations. Numonix represents and warrants that Numonix and its personnel, as well as its Affiliates and their personnel, possess the necessary authorizations, skills, and resources required to effectively execute the Services in accordance with this agreement.
   d. Non-Infringement. Numonix represents and warrants that the intellectual property comprised in the Services does not infringe any third-party rights.
   e. No Conflicts. The OEM and Numonix represent and warrant that execution of this agreement does not and will not violate obligations imposed under any other contract to which they are a party.
   f. Legal Compliance. The OEM and Numonix represent and warrant that neither party nor any of its officers, employees, or agents has done, permitted to be done, or will do anything in breach of any law that applies to them as a technology service provider.
   g. Policies. The parties represent and warrant that they have and will maintain throughout the term of this agreement their own policies and procedures to ensure compliance with this agreement and will enforce them promptly and effectively.
   h. GENERAL DISCLAIMER. NUMONIX MAKES NO OTHER WARRANTIES OR REPRESENTATIONS AS TO THE SERVICES PROVIDED UNDER THIS AGREEMENT. ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, ARE DISCLAIMED. OEM UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR-FREE OR THAT ITS USE MAY BE INTERRUPTED.
7. INDEMNITIES
   a. By Numonix. Numonix will defend or settle any third-party claims against OEM to the extent such claim alleges that the Service violates a copyright, patent, trademark, or other intellectual property right, if OEM promptly notifies Numonix of the claim in writing, cooperates with Numonix in the defense, and allows Numonix to control the defense or settlement. Costs. Numonix will pay infringement-claim defense costs it incurs in defending OEM, Numonix-negotiated settlement amounts, and court-awarded damages. Process. If such a claim appears likely, Numonix may modify the Service, procure necessary rights, or replace it with functional equivalent(s). If none of these are reasonably available, Numonix may terminate the Service and refund any prepaid and unused fees. Exclusions. Numonix has no obligation for any claim arising from: (i) Numonix’s compliance with OEM’s designs, specifications, instructions, or technical information; (ii) a combination of the Service with other technology where the infringement would not occur but for the combination; or (iii) technology not provided by Numonix. THIS SECTION CONTAINS OEM’S EXCLUSIVE REMEDIES AND NUMONIX’S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
   b. By OEM. If a third party makes a claim against Numonix (i) that any part of OEM technology infringes or violates that party’s copyright, patent, trademark, or other right, or (ii) based on OEM’s acts or omissions relating to this agreement (including, by way of example, violations of the U.S. Foreign Corrupt Practices Act or misrepresentations about the quality and nature of the Service), then OEM will defend Numonix against that claim at OEM’s expense and pay all costs, damages, and attorneys’ fees that a court finally awards or that are included in a settlement approved by OEM, provided that Numonix promptly notifies OEM in writing of the claim, cooperates with OEM in the defense, and allows OEM to control the defense or settlement.
8. LIABILITY LIMIT
   a. EXCLUSION OF INDIRECT DAMAGES. EXCEPT WITH RESPECT TO EACH PARTY’S INDEMNITY OBLIGATIONS AND EXCEPT FOR THE INFRINGEMENT OR MISAPPROPRIATION BY EITHER PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, TO THE MAXIMUM EXTENT ALLOWED BY LAW, NEITHER PARTY IS LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, COSTS OF DELAY; LOSS OF OR UNAUTHORIZED ACCESS TO DATA OR INFORMATION; AND LOST PROFITS, REVENUE, OR ANTICIPATED COST SAVINGS), EVEN IF IT KNOWS OF THE POSSIBILITY OF SUCH LOSS.
   b. TOTAL LIMIT ON LIABILITY. TO THE MAXIMUM EXTENT ALLOWED BY LAW, EXCEPT FOR EACH PARTY’S INDEMNITY OBLIGATIONS AND EXCEPT FOR THE INFRINGEMENT OR MISAPPROPRIATION BY EITHER PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY, EACH PARTY’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, OR OTHERWISE) DOES NOT EXCEED THE AMOUNT PAID OR OWED BY OEM IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.
9. GOVERNING LAW AND FORUM
   This agreement is governed by the laws of the State of Delaware (without regard to conflicts-of-law principles) for any dispute between the parties or relating to the subject matter of this agreement. Any suit or legal proceeding must be exclusively brought in the federal or state courts for the State of Delaware, and both parties submit to personal jurisdiction and venue. Nothing in this agreement prevents either party from seeking injunctive relief in a court of competent jurisdiction. The prevailing party in any litigation is entitled to recover its attorneys’ fees and costs from the other party.
10. OTHER TERMS
    a. Entire Agreement; Changes. This agreement and the order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. No representation, promise, or inducement not included in this agreement is binding. No modification or waiver of any term is effective unless both parties sign it.
    b. No Assignment. Neither party may assign or transfer this agreement to a third party, nor delegate any duty, except that the agreement and all orders may be assigned, without the other party’s consent, as part of a merger or sale of all or substantially all of a party’s business or assets.
    c. Independent Contractors. The parties are independent contractors. No partnership, joint venture, or franchise is created. OEM may not bind Numonix or make commitments on behalf of Numonix.
    d. Enforceability; Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Neither party is liable for non-performance due to events beyond its reasonable control, including pandemics, epidemics, natural disasters, labor disruptions, and utility disruptions.
    e. Money Damages Insufficient. Any breach of this agreement or violation of a party’s intellectual property rights could cause irreparable harm. The non-breaching party may seek a court order to stop any breach or avoid any future breach.
    f. Survival. Any terms that by their nature survive termination (including, without limitation, confidentiality) will survive termination of this agreement.
    g. Audit. No more than once in any twelve (12) month period and upon at least thirty (30) days’ advance notice, and if Numonix reasonably believes there is a payment dispute, Numonix (or its representative) may audit OEM’s compliance with this agreement at any OEM facility. OEM will cooperate with such audit.
    h. Compliance. Each party must comply with (i) the export laws and regulations of the United States and any other applicable jurisdiction and (ii) all applicable anti-bribery laws, including the U.S. Foreign Corrupt Practices Act. Additionally, OEM must comply with all applicable data privacy laws with respect to Subscriber information.
    i. Feedback. If OEM provides feedback or suggestions about the Service, then Numonix (and those it allows to use its technology) may use such information without obligation to OEM.

EXHIBIT A — MINIMUM TERMS FOR SUBSCRIBERS

1. License. OEM grants Subscriber the right to access and use the Service for its internal operational purposes. Subscriber grants OEM and its suppliers the right to use any Subscriber data in the Service solely for performing the Service.
2. Subscriber Responsibilities. Subscriber agrees to: (i) keep its passwords secure and confidential; (ii) be solely responsible for all Subscriber data in the Service and all activity in its account; (iii) use commercially reasonable efforts to prevent unauthorized access to its account and notify OEM promptly of any such access; and (iv) use the Service only in accordance with the user guide and applicable law.
3. Third-Party Services. The Service interoperates with third-party services and depends on their continuing availability and access. If the Service cannot access or use the applicable third-party service (including changes in terms or fee increases), OEM and its suppliers may not be able to provide all functions.
4. Recording Notices. Subscriber acknowledges that the notification for recording is disabled and Subscriber is responsible for notifying parties.
5. Disclaimer. THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTY. ALL IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, ARE DISCLAIMED. THE SERVICE MAY ONLY BE USED IN ACCORDANCE WITH APPLICABLE LAWS (INCLUDING, WITHOUT LIMITATION, RECORDING AND STORING OF TELEPHONE CONVERSATIONS). OEM AND ITS SUBSCRIBERS ARE SOLELY RESPONSIBLE FOR ENSURING COMPLIANCE.
6. Confidentiality. Subscriber agrees that the Service constitutes confidential information and must be protected in the same manner Subscriber protects its own confidential information (and in no event less than a reasonable manner). Subscriber may not share such information with employees or third parties unless they have a need to know and are bound by confidentiality terms at least as stringent as these.
7. Restrictions. Subscriber may not: (i) remove or alter proprietary markings or legends within the Service; (ii) reverse engineer the Service; (iii) sell, resell, rent, or lease the Service, or use it in a service-provider capacity; (iv) access the Service to build a competitive product or to copy any feature, function, or graphic; (v) use the Service to store or transmit infringing, unsolicited marketing emails, libelous, unlawful, or tortious material, or material in violation of third-party rights; (vi) interfere with or disrupt the integrity or performance of the Service; or (vii) attempt to gain unauthorized access to the Service or related systems or networks.
8. Ownership. OEM or its suppliers own all right, title, and interest, including all intellectual property rights, in and to the Service, including updates and enhancements. All rights not expressly granted are reserved.
9. Anonymized Data. Subscriber agrees that during and after the term of its agreement with OEM, OEM and its suppliers may use and own anonymized data within the Service for enhancing the Service, aggregated statistical analysis, technical support, and other business purposes.
10. Suspension. Subscriber agrees that the Service may be temporarily suspended for a violation of law by Subscriber.
11. Limitation of Liability. Neither OEM nor its suppliers are liable to Subscriber for any indirect, consequential, incidental, or special damages (including, without limitation, costs of delay, lost profits or revenue, and loss of, destruction to, or unauthorized access to data or information), regardless of theory of liability.
12. Termination. Upon termination of the agreement between Subscriber and OEM, Subscriber may no longer access the Service. OEM can terminate the Subscriber agreement for Subscriber’s breach upon thirty (30) days’ notice.
13. Feedback. Subscriber agrees that any feedback or suggestions about the Service may be used by OEM and its suppliers without obligation.
14. Injunctive Relief. Subscriber agrees that a violation of intellectual property rights under this agreement may cause irreparable harm and that OEM and its suppliers may seek a court order to stop the violation or prevent a future violation.

EXHIBIT B — SERVICE DESCRIPTION

Numonix Recordobot and Capture Service for Microsoft Teams. All media records (.wav & .mp4) are stored in Azure Storage blob. You can request the data be retrieved and processed. Either Numonix or OEM can store the records.

Media & Metadata

• Each recorded interaction will result in multiple files in the storage account’s file share.
• Audio: a .wav file together with a same-named .xml file (containing metadata obtained from Graph) will be sent to the storage folder.
• Video: a .mp4 file together with a same-named .xml file will be sent to the storage folder.
• Note: Video camera recordings and video-based screenshare recordings are both stored as .mp4. .mp4 files do not contain any audio streams. All audio streams from the meeting/call or interaction are found in the .wav file.

EXHIBIT C — SERVICE LEVEL AGREEMENT (SLA)

This SLA applies to paying customers who have entered into a written or electronic subscription services agreement with Recordobot and Numonix collectively (“Recordobot”).

Availability Target

• Recordobot targets availability of at least 99.8%* of the time in any calendar month.
• *Subject to data volumes, recording volume, and duration time. Recordobot will use reasonable commercial efforts to optimize service and uptime.

Service Credits
If Recordobot does not meet this guarantee, subscribers will be eligible for Service Credits as described below. Service Credits are the sole and exclusive remedy for any failure by Recordobot to meet the SLA.

SLA Exclusions
Recordobot’s SLA does not apply to any services that expressly exclude this SLA (as stated in documentation) or any downtime resulting from:

• Forces or causes beyond reasonable control, including strikes, labor disputes, riots, insurrections, civil disturbances, explosions, acts of God/nature, war, governmental actions, or court orders;
• Availability of third-party APIs, credentials, or permission errors;
• Client internet failure, including subscriber security policies blocking communications;
• Recordobot maintenance window;
• Customer storage location unavailability;
• Customer or subscriber premises or hardware failure.

Credits for Recording Failures

• For each standard session of recording Recordobot fails to record, you will be eligible for a credit of up to three (3) days’ extension on your Recordobot subscription at no extra charge.

Monthly Uptime Credit Table

Claiming Credits
If any of the above applies, notify support@numonix.io and Recordobot will provide the appropriate credit. To receive the Service Credit, the customer must notify Numonix (Recordobot) no later than thirty (30) days after the time of failure. The aggregate maximum number of Service Credits issued to a Recordobot customer in a single calendar month shall not exceed forty-five (45) days of service.

Definitions

• Maintenance Window: Periods of service unavailability due to Recordobot maintenance. Unless pre-scheduled and announced, scheduled downtime shall not be more than four (4) hours per month for major system configuration changes, upgrades, or normal maintenance.
• Cloud Data: Data (e.g., table data, file attachments, recordings, etc.) that exist on a third-party service provider site.
• Downtime: Unavailability of the service, exclusive of the Maintenance Window.
• Monthly Uptime Percentage: Total number of minutes in a calendar month minus minutes of Downtime in that month, divided by the total minutes in the month.
• Recording Session: Customer’s standard recording operation sessions for the specific RECORDOBOT and customer.