Yoodli Software-as-a-Service Agreement

1. SERVICES

1.1 Services Order Forms. Yoodli and Customer will enter into one or more services order forms (each a “Services Order Form”), which detail the services purchased by Customer (the “Services”). Yoodli will provide the Services to Customer pursuant to the terms and conditions in that Services Order Form and this Agreement. If a conflict exists between this Agreement and a Services Order Form, this Agreement will govern unless the Services Order Form expressly states that a specific provision in the Services Order Form takes precedence over a specific provision in this Agreement.

1.2 License. Subject to the terms and conditions of this Agreement, and conditioned on Customer’s payment of all fees due under the applicable Services Order Form(s), Yoodli hereby grants Customer a non-exclusive, non-transferable, non-sublicensable, revocable license, during the term of the applicable Services Order Form, to use the Services and Documentation (as defined below). Information describing the functionality, components, features, and requirements of the Services can be found at https://support.yoodli.ai/en/ (the “Documentation”).

1.3 Authorized Users. Use of the Services is solely limited to those employees, contractors, clients, and other persons affiliated with Customer for whom access to the Services has been purchased by Customer in accordance with the Services Order Form and this Agreement (each an “Authorized User”). Yoodli will provide Customer the necessary network links or connections to allow Customer and its Authorized Users to access the Services.

1.4 Restrictions. Customer will not, directly or indirectly, and will not permit any Authorized User or other person to: (a) access or use the Services or Documentation except as expressly permitted by this Agreement; (b) sell, rent, lease, lend, license, distribute, publish, provide access to, sublicense, or otherwise make available any of the Services to a third party (except to Authorized Users); (c) copy, modify, decompile, disassemble, reverse engineer, decode, adapt, create derivative works, or otherwise attempt to derive or gain access to any software component of the Services; (d) remove proprietary or confidentiality marks or notices from the Services or Documentation; (e) permit unauthorized parties from using or copying the Services or operate time-sharing arrangements; or (f) disable any access keys or encryptions included in the Services.

1.5 Support Services. Yoodli will provide the support services described in Exhibit A, which is attached hereto and incorporated herein by reference.

1.6 Data Privacy and Security. Yoodli and Customer will comply with the Data Processing Addendum found at https://yoodli.ai/dpa, which is incorporated herein by reference. In addition, Authorized Users’ use of the Services is subject to the Privacy Policy found at https://yoodli.ai/privacy-policy.

2. CUSTOMER CONTENT

2.1 Creation or Upload of Customer Content. Use of the Services requires that Customer and its Authorized Users create video or audio content within, or upload video or audio content into, the Services (“Customer Content”). For Customer Content to be successfully uploaded to the Services, it must be in a format consistent with the requirements set forth in the Documentation. Errors in uploading Customer Content into the Services due to defective media, erroneous content, or failure to meet the requirements set forth in the Documentation may cause Customer Content to be rejected by the Service, and Yoodli will have no responsibility for any related impact on Customer’s ability to use the Services in such instances.

2.2 License Subject to the terms and conditions of this Agreement, Customer hereby grants to Yoodli a non-exclusive, non-transferable, non-sublicensable, revocable, royalty-free right to use, copy, store, transmit, modify, and display the Customer Content solely to the extent necessary to provide the Services to Customer over the term of this Agreement. Yoodli’s access to Customer Content is strictly limited to perform its obligations under this Agreement.

2.3 Customer Obligations. Customer will obtain any and all necessary permissions and consents relating to its use of Customer Content before it is created within or uploaded into the Services. Customer will not, and will not permit any Authorized User or other person to, use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights (as defined below), rights of publicity or privacy, or any other rights of any third party or that violates any applicable law. Customer is solely responsible and liable for Customer Content.

3. INTELLECTUAL PROPERTY

3.1 Ownership. Yoodli owns all intellectual property rights, including without limitation all patents, copyrights, trademarks, service marks, logos, trade secrets, inventions, designs, trade dress, and any other proprietary rights (“Intellectual Property Rights”), in and to the Services and Documentation, and any enhancements, improvements, updates, upgrades, or other modifications thereto. Customer owns any and all Intellectual Property Rights in and to Customer Content, as well as the output relating to Customer Content that results from Customer’s use of the Services (“Output”); provided, however, that Customer hereby grants to Yoodli a non-exclusive, non-transferable, non-sublicensable, revocable, royalty-free right to use, copy, store, transmit, modify, and display the Output solely to the extent necessary to provide the Services to Customer over the term of this Agreement. For the sake of clarity, Yoodli shall not use the Output for the purposes of training, testing, verifying, developing, enhancing, and improving the machine learning and other artificial intelligence systems, tools, applications, algorithms, and models included in the Services. Except as otherwise expressly provided in this Agreement, nothing in this Agreement will have any effect on either party’s ownership of its Intellectual Property Rights, and this Agreement does not grant either party any right, title, interest, or license, in the other’s Intellectual Property Rights.

3.2 Feedback. Despite anything to the contrary herein, Yoodli may freely use and incorporate into its products and services, including the Services, any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by Customer or any Authorized Users (the “Feedback”), and any derivative works, modifications, or improvements to the foregoing based on the Feedback will be solely owned by Yoodli.

3.3 Customer Name and Marks. Yoodli may use Customer’s name and logo to identify Customer as a customer on its website. Any additional use of Customer’s name, logo, or other Intellectual Property Rights by Yoodli in marketing materials, such as profiles, white papers, and references, requires Customer’s prior written approval.

4. PAYMENT

4.1 Fees. The fees for the Services will be specified in each Services Order Form and will be paid by Customer, without offset or deduction, at the time of purchase or on any different due date set forth in the Services Order Form. If Customer’s use of the Services exceeds the number of Authorized Users or any other limitations set forth on the Services Order Form, or otherwise requires the payment of additional fees per the terms of the Services Order Form or this Agreement, Yoodli will invoice Customer accordingly, and Customer agrees to pay such invoice on or before 15 days after the date of the invoice. Customer shall make all payments hereunder in US dollars on or before the applicable due date. Interest will be charged at the lesser of 1.5% per month or the highest lawful rate on all amounts not paid by the applicable due date. If Customer believes that Yoodli has invoiced Customer incorrectly, Customer must contact Yoodli no later than twenty (20) days after the date of the invoice in which the error or problem appeared, and failure to do so within such time period will result in Customer’s waiver of any right to dispute such invoice.

4.2 Taxes. Fees and other charges payable hereunder do not include taxes, levies, duties, or similar governmental assessments of any nature, such as sales, use, value-added, withholding, or similar taxes. Customer is responsible for all such taxes, other than those based on Yoodli’s income, property, or employees. If Yoodli has the legal obligation to pay or collect Taxes for which Customer is responsible, Yoodli will invoice Customer and Customer will pay that amount unless Customer provides Yoodli with a valid tax exemption certificate authorized by the appropriate taxing authority. Customer will indemnify Yoodli for any taxes, and any related costs paid or payable by Yoodli attributable to such taxes, that would have been Customer’s responsibility hereunder.

5. TERM AND TERMINATION

5.1 Term. The term of this Agreement begins on the Effective Date and continues so long as there is an open Services Order Form in effect or until termination as provided below. The term of each Services Order Form will be the period described in such Services Order Form unless earlier terminated as provided below.

5.2 Termination. Either party may terminate this Agreement or a Services Order Form, effective upon written notice to the other party, if the other party materially breaches this Agreement and such breach is incapable of being cured or, being capable of being cured, remains uncured 30 days after the breaching party receives written notice of the breach from the non-breaching party. Notwithstanding the foregoing, Yoodli may terminate this Agreement or a Services Order Form if Customer (a) fails to pay any amount when due and such failure continues for more than 10 days after Yoodli’s delivery of written notice thereof, or (b) breaches the terms in Section 1.4, with termination being effective immediately upon written notice. In addition, either party may terminate this Agreement or a Services Order Form, effective immediately upon written notice, if the other party: (a) terminates or suspends its business; (b) is subject to a bankruptcy or insolvency proceeding under federal or state statute; (c) is subject to direct control by a trustee, receiver, or similar authority; or (d) has wound up or liquidated, voluntarily or otherwise subject to applicable law, has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding. Termination of this Agreement or any Services Order Form shall be without prejudice to any other remedy which may be available to a party under law or in equity.

5.3 Effect of Termination. On the expiration or termination of this Agreement: (a) the licenses and rights granted under this Agreement will immediately terminate; (b) Customer and Authorized Users will immediately cease use of the Services; (c) Yoodli may deactivate all access codes and keys for the Services; (d) any outstanding fees or other amounts due from Customer will be immediately due and payable; and (e) each party will cease use of, and destroy or return to the other party (at the other party’s option), all Confidential Information in its possession or control. Expiration or termination of this Agreement will not affect any obligations owed by one party to the other that have accrued prior to such termination. Those provisions under this Agreement which create a right of action or undertaking by either party against the other party, or which otherwise by their nature would logically be expected or needed to survive, shall specifically survive any expiration or termination of this Agreement.

5.4 Suspension. Despite anything to the contrary herein, and in addition to any of its other rights or remedies, Yoodli reserves the right to suspend Customer’s or any Authorized User’s access to any portion or all of the Services if Customer fails to pay any fees when due, or if Yoodli determines that: (a) Customer's or any Authorized User's use of the Services disrupts or poses a security risk; (b) Customer’s or any Authorized User’s use of the Services is fraudulent, illegal or unlawful; or (c) Yoodli’s provision of the Services to Customer or any Authorized User is or becomes prohibited by applicable law. Yoodli will use commercially reasonable efforts to provide Customer with written notice of any such suspension and to resume providing access to the Services as soon as reasonably possible after the event giving rise to the suspension is cured. Yoodli will have no liability for any damages, liabilities, losses, or other consequences that Customer or any Authorized User may incur as a result of any such suspension.

6. CONFIDENTIALITY

6.1 Obligations. During the term of this Agreement and for three (3) years thereafter, each party (the “Receiving Party”) will: (a) retain in confidence and not use the Confidential Information of the other party (the “Disclosing Party”) for any purpose other than in the performance of its obligations or the exercise of its rights under this Agreement; (b) protect all Confidential Information from disclosure by using the same degree of care used to protect its own Confidential Information of a like nature, but in no event less than a reasonable degree of care; and (c) not disclose Confidential Information to any person or entity, except to its employees, contractors, advisors, and consultants who have a legitimate need to know such Confidential Information and are legally bound to protect such Confidential Information on terms at least as protective as those contained herein. For purpose of this Agreement, “Confidential Information” means non-public information, whether in disclosed in oral, written, electronic, or any other form or media, that is designated or identified as confidential or that a reasonable person should understand to be confidential based on the nature of the information disclosed or the circumstances of such disclosure. The terms and conditions of this Agreement are deemed to be the Confidential Information of both parties.

6.2 Exclusions. The foregoing obligations will not apply to information that: (a) is or becomes publicly available through no fault of the Receiving Party; (b) was rightfully in the Receiving Party’s possession, without any obligation to hold it in confidence, before receipt from the Disclosing Party; (c) is received by the Receiving Party from a third party that has the lawful right, without any duty of confidentiality, to disclose the information; (d) is independently developed by the Receiving Party without use of or reference to the Confidential Information of the Disclosing Party; or (e) is disclosed by the Receiving Party with the Disclosing Party’s prior written consent. In addition, the Receiving Party may disclose Confidential Information without the Disclosing Party’s consent to the extent such disclosure is required by law, court order, or governmental or regulatory authority; provided, however, that the Receiving Party will provide written notice to the Disclosing Party prior to such disclosure (unless otherwise precluded by law) and reasonably cooperate with the Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure.

6.3 Remedies. Each party agrees that in the case of a breach of this Section 6, the non-breaching party may suffer irreparable harm and monetary damages may be an inadequate remedy. As such, it is agreed that the non-breaching party will be entitled to seek temporary, preliminary, and permanent injunctive relief, in addition to all other rights and remedies it may have at law or in equity, without the necessity of proving actual damages or without the placement or filing of a bond. The ability to seek injunctive relief shall not prohibit the non-breaching party from seeking a remedy for actual monetary damages.

7. REPRESENTATIONS AND WARRANTIES

7.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that: (a) it has full right, power, and authority to enter into, perform under, and grant the rights in this Agreement; (b) its execution of this Agreement and performance of its obligations hereunder do not and will not violate any laws or agreements to which it is subject; (c) when executed and delivered, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against it in accordance with its terms; and (d) it will comply with all applicable laws.

7.2 Services Warranty. Yoodli represents and warrants that the Services will operate in substantial conformity with the applicable Documentation. Yoodli’s sole liability and Customer’s sole and exclusive remedy for any breach of this warranty will be for Yoodli, at no charge to Customer, to use commercially reasonable efforts to correct the reported non-conformity. This limited warranty will not apply (a) unless Customer makes a claim within 30 days of the date on which Customer first notices the non-conformity, or (b) if the non-conformity results from Customer’s use of the Services in violation of this Agreement or the Documentation, or the combination of the Services with products or services not specified in the Documentation.

7.3 Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED AS-IS, AND YOODLI MAKES NO, AND SPECIFICALLY DISCLAIMS ANY AND ALL, REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, QUALITY, TITLE, NON-INFRINGEMENT, COURSE OF DEALING, OR COURSE OF PERFORMANCE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE FOREGOING, YOODLI DOES NOT WARRANT THAT CUSTOMER’S USE OF THE SERVICES WILL MEET CUSTOMER’S NEEDS OR REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE, OR FREE FROM ERROR OR DEFECT, AND YOODLI WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES, OR OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS, OR OTHER SYSTEMS OUTSIDE OF ITS CONTROL.

8. INDEMNIFICATION

8.1 Indemnification by Yoodli. Yoodli will defend, indemnify, and hold harmless Customer from and against any and all losses, damages, liabilities, fines, penalties, costs, and expenses, including without limitation reasonable attorneys’ fees (“Losses”) incurred by Customer to the extent arising out of or resulting from any third-party claim, action, demand, suit, or proceeding (“Third-Party Claim”) that the Services infringe on such third party’s US Intellectual Property Rights. If Customer’s use of the Services is, or in Yoodli’s opinion is likely to be, enjoined, Yoodli may, in its sole discretion and at its sole expense, modify the Services so that they are no longer infringing, procure for Customer the right to continue using the Services, or terminate this Agreement and refund to Customer any prepaid fees covering the remainder of the term of the affected Services Order Form(s). The foregoing indemnification obligations will not apply to the extent the Third-Party Claim is attributable to: (a) Yoodli’s compliance with Customer’s instructions; (b) modification of the Services by anyone other than Yoodli; (c) use of the Services inconsistent with the Documentation or this Agreement; (d) the combination of the Services with data, software, hardware, equipment, or technology not specified in the Documentation or provided by Yoodli; or (e) Customer Content. This Section 8.1 sets forth Yoodli’s sole liability and Customer’s sole and exclusive remedy with respect to any claim of data breach or Intellectual Property Rights infringement.

8.2 Indemnification by Customer. Customer will defend, indemnify, and hold harmless Yoodli from and against any and all Losses incurred by Yoodli to the extent arising out of or resulting from any Third-Party Claim relating to (a) the Customer Content or (b) Customer’s or any Authorized User’s (i) negligence or willful misconduct, (ii) use of the Services inconsistent with the Documentation or this Agreement, (iii) use of the Services in combination with data, software, hardware, equipment, or technology not specified in the Documentation or provided by Yoodli, or (iv) modifications to the Services by anyone other than Yoodli.

8.3 Indemnification Procedures. The indemnification obligations of each party (the “Indemnifying Party”) set forth above are contingent on the other party (the “Indemnified Party”) providing the Indemnifying Party with (a) reasonably prompt notice of the Claim (provided that any delay in the Indemnifying Party receiving such notice will not excuse it from its indemnification obligations except to the extent it suffered harm as a result of such delay), (b) sole control of the defense and settlement of the Claim (provided that the Indemnifying Party may not enter into any settlement of the Claim that affects the Indemnified Party’s rights, makes admissions on the part of the Indemnified Party, or obligates the Indemnified Party to take or not take any action, without the Indemnified party’s express written consent, which will not be unreasonably withheld), and (c) reasonable assistance to the Indemnifying Party in the defense of the Claim, at the Indemnifying Party’s expense. An Indemnified Party may employ separate counsel and participate in the defense of the Claim at its sole expense.

9. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF REVENUE OR PROFITS, LOST DATA, BUSINESS INTERRUPTION, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOOD OR SERVICES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER PARTY’S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY (WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE) WILL EXCEED THE FEES PAID BY CUSTOMER TO YOODLI UNDER THE APPLICABLE SERVICES ORDER FORM IN THE 12-MONTH PERIOD PRECEDING THE EVENT THAT RESULTED IN THE DAMAGES; PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATION WILL NOT APPLY TO LIABILITY ARISING FROM CUSTOMER’S BREACH OF SECTIONS 1.4 OR 4, EITHER PARTY’S BREACH OF SECTION 6, OR EITHER PARTY’S OBLIGATIONS UNDER SECTION 8.

10. MISCELLANEOUS

10.1 Relationship. The parties are independent contractors, and nothing in this Agreement shall be construed to create a partnership, joint venture, employment, franchise, fiduciary, or agency relationship between the parties. Neither party will have the power or authority as agent or any other capacity to represent, act for, bind, or otherwise create or assume any obligation on behalf of the other party for any purpose whatsoever. There are no third-party beneficiaries under this Agreement.

10.2 Assignment. Neither party may assign this Agreement or any right or obligation under it without the other party’s prior written consent; provided, however, that either party may assign all, but not some, of its rights and obligations under this Agreement to any of its affiliates, or to any entity into which or with which it is merged or that acquires all or substantially all of its assets or stock, without the other party’s consent. Subject to the foregoing, this Agreement will be binding upon, enforceable by, and inure to the benefit of the parties and their permitted successor and assigns.

10.3 Force Majeure. Neither party will be deemed to be in default of or to have breached any provision of this Agreement as a result of any delay or failure in performance (excluding Customer’s obligation to pay fees) resulting directly or indirectly from acts of God, natural disasters, pandemic, epidemic, labor dispute, electronic, telecommunications, or other utility failure, terrorism, war, civil disturbance, government action, or any other cause beyond such party’s reasonable control. The party affected by a force majeure event will provide written notice to the other party within a reasonable time and use commercially reasonable efforts to resume performance as soon as possible.

10.4 Notices. Any notice or other communication required or permitted under this Agreement will be in writing, sent to the applicable party at the address set forth on the Services Order Form or such other address as may be given in writing by a party in accordance with this Section 10.4, and will be deemed to have been received: (a) if given by hand, immediately upon receipt; (b) if given by overnight courier service, the first business day following dispatch; (c) if given by registered or certified mail, postage prepaid and return receipt requested, the third business day following dispatch; or (d) if given by email, immediately upon receipt, except that notices relating to termination or any claims (including without limitation breach, warranty, or indemnity) may not be given via email.

10.5 Export Control. Customer agrees to comply with all export and import laws and regulations of all applicable jurisdictions. Without limiting the foregoing: (a) Customer represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a “terrorist supporting” country; (b) Customer will not, and will not permit any third parties to, access or use any of the Services in violation of any applicable export embargo, prohibition, or restriction; and (c) Customer will not submit to any of the Services any information that is controlled under the U.S. International Traffic in Arms Regulations.

10.6 No Waiver. A party’s delay or failure to exercise any right or remedy is not a waiver of that or any other right or remedy, and no waiver will be effective unless in writing signed by a duly authorized representative of the party claimed to have waived.

10.7 Severability. If a court of competent jurisdiction determines that any Agreement provision is illegal, invalid, or unenforceable, that provision will be limited to the minimum extent necessary so that this Agreement will remain in full force and effect.

10.8 Governing Law and Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Washington without reference to its choice of law rules. The parties hereby irrevocably consent to personal jurisdiction and venue in the state and federal courts located in King County, Washington, with respect to any actions, claims, or proceedings arising out of or in connection with this Agreement, and agrees not to commence or prosecute any such action, claim, or proceeding other than in the aforementioned courts. In the event of any such action, claim, or proceeding, the substantially prevailing party shall be entitled to recover its reasonable attorneys’ fees and other costs and expenses incurred in connection therewith.

10.9 Entire Agreement. The parties agree that this Agreement (including any and all applicable Services Order Forms) is the complete and exclusive statement of the agreement between the parties, which supersedes and merges all prior proposals, understandings, and all other agreements, oral or written, between the parties. No purchase order or other business form issued by Customer at any time before or after the execution of this Agreement will supersede the terms and conditions of this Agreement. Yoodli may modify the terms contained in this Agreement, as well as the Data Processing Addendum, at any time by posting the applicable updated version on Yoodli’s website or by otherwise notifying Customer as described in Section 10.4. The modified terms will become effective upon posting or, if Yoodli notifies Customer as described in Section 10.4, as stated in the notice provided. By continuing to use the Services after the effective date of any such modifications, Customer agrees to be bound by the modified terms. It is also Customer’s responsibility to check the Yoodli website regularly for any such modifications.