PLEASE READ THIS TERMS OF SERVICE AGREEMENT (THE “AGREEMENT”) CAREFULLY.  THIS WEBSITE AND ANY OTHER WEBSITES OF TANGRAM ROBOTICS, INC. (“TANGRAM”)  (COLLECTIVELY, THE “WEBSITE”) AND THE INFORMATION ON IT ARE CONTROLLED BY TANGRAM.  THIS AGREEMENT GOVERNS THE USE OF THE SOFTWARE MADE AVAILABLE ON THE WEBSITE. BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, AND/OR DOWNLOADING TANGRAM’S SOFTWARE, THE PERSON OR ENTITY ACCEPTING THESE TERMS OF USE (“CUSTOMER”) REPRESENT THAT (1) IT HAS READ, UNDERSTOOD, AND AGREED TO BE BOUND BY THIS AGREEMENT, (2) CUSTOMER IS OF LEGAL AGE TO FORM A BINDING CONTRACT WITH TANGRAM, AND (3) THE PERSON ENTERING INTO THIS AGREEMENT HAS THE AUTHORITY TO ENTER INTO THIS AGREEMENT PERSONALLY OR ON BEHALF OF COMPANY IT HAS NAMED AS THE CUSTOMER, AND TO BIND THAT COMPANY TO THIS AGREEMENT.  THE TERM “CUSTOMER” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE CUSTOMER WHEN ITS REGISTERED ON THE WEBSITE.  IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THIS AGREEMENT, IT MAY NOT ACCESS, DOWNLOAD OR USE THE SOFTWARE.

PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY TANGRAM IN ITS SOLE DISCRETION AT ANY TIME.  When changes are made, Tangram will make a new copy of the Agreement available at the Website.  Tangram will also update the “Last Updated” date at the top of the Agreement.  Tangram may require Customer to provide consent to the updated Agreement in a specified manner before further use of the Software is permitted.  If Customer does not agree to any change(s) after receiving a notice of such change(s), Customer shall stop using the Software.  Otherwise, Customer’s continued use of the Software constitutes your acceptance of such change(s).  PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.

1. DEFINITIONS

   1. “Client-Side Software” means the client-side software binary of Tangram that is capable of being embedded into and integrated with Customer’s Devices.

   2. “Customer VPC” means, if applicable, Customer’s virtual private cloud environment.

   3. “Dashboard” means the web-based user interface for Customer to access portions of the Software.

   4. “Device” means each of Customer’s physical devices that contain the sensors (or to which sensors are attached), and with respect to which the Software is provided. 

   5. “Documentation” means any user instructions, manuals, on-line help files, or other materials that are provided by Tangram in connection with the Client-Side Software or Software.

   6. “Employee Users” means Customer’s employee or contractor personnel authorized by Customer to access and use the Software.

   7. “Initial Order Term” means, with respect to an Order, the period of time commencing on the effective date defined in the Order Form and continuing for the duration of the subscription term.

   8. “Order” means any mutually agreed and executed order form (including electronic orders) referencing the Agreement and setting forth the Software to be provided and any additional terms applicable to the Client-Side Software and Software to be provided pursuant to the Agreement.

   9. “Registration Data” means any data pertaining to Devices that is provided by Tangram to Customer via the Software for the purpose of registering the Software and enabling license keys. 

   10. “Software” means Tangram’s proprietary software for providing sensor integration and management to be provided under an Order, including Customer’s access to the Dashboard.

   11. “Tangram Technology” means, collectively, the Software, Client-Side Software, Dashboard, Documentation, and any other services to be provided pursuant to the Agreement.

2. SERVICES; CLIENT-SIDE SOFTWARE

1. Software. Subject to Customer’s ongoing compliance with the terms of the Agreement, Tangram hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, internal right and license commencing on the effective date set forth on the applicable Order and continuing for the remainder of the applicable Order Term (as defined below) to install and use the Software, solely in accordance with the Documentation and solely for Customer’s internal business purposes subject to any limitations set forth in the Order. If set forth in the applicable Order and subject to the terms and conditions of this Agreement, Tangram hereby grants to Customer, during the subscription term of the applicable Order, a non-exclusive, non-sublicenseable, non-transferable right and license to install and use a single instance of the Software in a production environment on the Customer VPC solely for Customer’s internal business purposes and in accordance with the Documentation, subject to any usage limitations or other restrictions set forth in the Order.

2. Client-Side Software License. Subject to Customer’s ongoing compliance with the terms of the Agreement (including the terms and conditions of the applicable Order and timely payment of all applicable Fees), Tangram hereby grants Customer a non-exclusive, non-transferable, non-sublicensable, internal use only license, during the period of time commencing on the effective date set forth in an Order and continuing for the duration of the applicable Order Term to (i) integrate and embed the Client-Side Software into Devices that are built or rely upon the Software; (ii) make only those copies of the Client-Side Software absolutely necessary to exercise Customer’s rights under the foregoing; and (iii) make only those copies of the Documentation reasonably necessary to exercise Customer’s rights hereunder and use any Documentation in connection with Customer’s use of the Software and Client-Side Software. 

3. Documentation. Subject to Customer’s ongoing compliance with the terms of the Agreement, Tangram hereby grants to Customer a non-exclusive, revocable, non-transferable, non-sublicenseable license during the applicable subscription term of the Order to reproduce, without modification, and internally use a reasonable number of copies of the Documentation solely in connection with Customer’s authorized use of the applicable Software.  Customer will include on any copies it makes of the Software and Documentation the copyright notices or proprietary legends contained within the same.

4. Restrictions. Customer shall not, directly or indirectly, and shall not authorize any third party to: (i) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code, algorithms, or associated know-how of the Tangram Technology (except to the extent expressly made available to Customer by Tangram or permitted by applicable law notwithstanding this restriction); (ii) write or develop any program based upon the Tangram Technology or any portion of any of the foregoing, or otherwise use the Tangram Technology in any manner for the purpose of developing, distributing or making available products or services that compete with the Tangram Technology; (iii) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in the Tangram Technology or any rights to any of the foregoing; (iv) permit the Tangram Technology to be accessed or used by any persons other than Employee Users accessing or using the Tangram Technology in accordance with the Agreement; (v) alter or remove any trademarks or proprietary notices contained in or on the Tangram Technology; (vi) circumvent or otherwise interfere with any authentication or security measures of the Tangram Technology or otherwise interfere with or disrupt the integrity or performance of the foregoing; or (vii) otherwise use the Tangram Technology for any purpose other than as expressly permitted hereunder. Customer represents and warrants that it and all Employee Users will, at all times during the Term, comply with all applicable laws in connection with its use of the Tangram Technology. Customer acknowledges that Tangram may, but is under no obligation to monitor Customer’s use of the Software. Tangram may suspend Customer’s, or an Employee User’s access to the Software for any period during which Customer or an Employee User is, or Tangram has a reasonable basis for alleging Customer or an Employee User is, in noncompliance with the foregoing. 

5. Support. After deployment of the Software, on an Order-by-Order basis, during the subscription term of such Order, and for so long that Customer is current in its payment obligations, Tangram will provide its standard email and chat support during Tangram’s normal business hours.  

3. FEES; PAYMENT. During the Term, Customer will pay Tangram all fees of the type and amount set forth in an Order (“Fees”). Customer will pay for any excess usage beyond any usage limitations or metrics on which Fees are based at the rates set forth in the Order, or, if no such rates are set forth on the Order, then at Tangram’s then current standard rates for such usage. Unless otherwise set forth in an Order, Fees for access to and use of the Software will be invoiced in advance on an annual basis. Unless otherwise set forth in an Order: (i) all Fees are non-cancellable, non-refundable, and non-recoupable; and (ii) all invoices for Fees are due and payable in United States dollars within 30 days after the invoice date, without deduction or setoff. Interest accrues from the due date at the lesser of 5% per month or the highest rate allowed by law. Customer is responsible for all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of the Agreement or the transactions contemplated by the Agreement (other than taxes based on Tangram’s net income). Customer will maintain, and Tangram will be entitled to audit, any records relevant to Customer’s use of the Software hereunder, e.g. logs generated offline based on system usage. Tangram may audit such records on reasonable notice at Tangram’s cost (or if the audits reveal material non-compliance with this Agreement, at Customer’s cost).

4. PROPRIETARY RIGHTS. Customer acknowledges that Tangram owns and retains all rights, title, and interest, including all intellectual property rights, in and to the Tangram Technology, including all technology, software, algorithms, user interfaces, trade secrets, techniques, designs, inventions, works of authorship, and other tangible and intangible material and information pertaining thereto or included therein, and nothing in the Agreement shall preclude or restrict Tangram from using or exploiting any concepts, ideas, techniques or know-how of or related to the Tangram Technology or otherwise arising in connection with Tangram’s performance under the Agreement. Other than as expressly set forth in the Agreement, no licenses or other rights in or to the Tangram Technology are granted to Customer and all such rights are hereby expressly reserved.

5. TERM AND TERMINATION

1. Term. The Agreement will start on the date Customer accepts this Agreement (in accordance with the preamble) and will continue until terminated in accordance with its terms (the “Term”). Unless otherwise stated in an Order, each Order will continue until completion of the Initial Order Term, and with respect to Orders for monthly subscription access to the Software and Client-Side Software, upon expiration of the Initial Order Term, shall automatically renew, except as expressly set forth on the Order, for consecutive monthly periods, up to the maximum number of renewals set forth on the Order (or if no maximum number is stated, six (6) months) (each such period with respect to that Order, a “Renewal Order Term” and all Renewal Order Terms of an Order together with the Initial Order Term of that Order, the “Order Term”) unless either party provides notice of non-renewal at least 30 days prior to the end of the then current Initial Order Term or Renewal Order Term. 

2. Termination. Either party may terminate the Agreement by written notice: (i) if no Orders have been in effect between the parties for a period of 30 consecutive days; (ii) the other party is in material breach of the Agreement, where such material breach is not cured within 30 days after written notice of such breach; or (iii) if: (a) the other party ceases to carry on its business; (b) a receiver or similar officer is appointed for the other party’s business, property, affairs or revenues and such proceedings continue for 45 days; (c) the other party becomes insolvent, admits in writing its inability to pay debts generally as they come due, is adjudicated bankrupt, or enters composition proceedings, makes an assignment for the benefit of its creditors or another arrangement of similar import; or (d) proceedings under bankruptcy or insolvency laws are commenced by or against the other party and are not dismissed within 45 days. Notwithstanding anything to the contrary herein, if Customer fails to pay any amounts owed to Tangram within 15 days after written notice of nonpayment of any amounts owed to Tangram, which may be provided any time after any amount becomes past due, Tangram may immediately terminate this Agreement. For the avoidance of doubt, Customer’s noncompliance with Section 2(d) shall be deemed a material breach of the Agreement. 

3. Effect of Termination. Upon the effective date of the expiration or termination of the Agreement for any reason: (i) Customer’s access to the Software, and the licenses granted to Customer hereunder will automatically terminate; (ii) all outstanding payment obligations of Customer will become due and payable immediately; and (iii) Customer shall immediately return, or at Tangram’s request destroy and certify the destruction of any tangible embodiments of the Software. The following provisions will survive the expiration or termination of the Agreement for any reason: Sections 1, 2(d), 3, 4, 5.3, 6 through 10.

6. REGISTRATION DATA. Customer agrees that Tangram may use Registration Data as necessary to make available the Software, perform its obligations hereunder, and improve the Software, including, without limitation, performing any required, usual, appropriate, or acceptable activities relating to the Software, such as: (i) providing or supporting the use of the Software and carrying out the business of which the Software is a part; (ii) training Tangram’s algorithms; (iii) carrying out any benefits, rights, and obligations relating to the Software; (iv) complying with the requirements of this Agreement, applicable law or applicable industry self-regulatory standards; and (v) maintaining records relating to the Software. Customer agrees that Tangram may also use and exploit in any manner on a worldwide, irrevocable, perpetual, royalty-free basis, any: (a) aggregated non-personally identifiable information related to any usage of the Software to operate and improve Tangram’s products and services; and (b) suggestions, requests and feedback provided by or on behalf of Customer regarding the Tangram Technology. Customer will not use any Registration Data in violation of applicable law. 

7. INDEMNIFICATION. Customer shall defend or, at its option, settle, any claim brought against Tangram by a third party: (i) arising out of any unauthorized access or use of the Software by Customer or any Employee Users or any third party utilizing any access credentials of Customer or any Employee Users; (ii) arising out of the use of the Software in violation or in connection with a violation of applicable law; or (iii) arising out of the operation of Customer’s business. Customer will indemnify Tangram for all costs, liabilities, damages, and expenses incurred by Tangram (or the amount of any settlement entered into or approved in writing by Customer) with respect to such a claim. Tangram shall provide Customer with: (a) prompt written notice of; (b) sole control over the defense and settlement of; and (c) all information and assistance reasonably requested by Customer in connection with the defense or settlement of, any such claim. 

8. DISCLAIMER. TANGRAM HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LOSS OF DATA, OR ACCURACY OF RESULTS. TANGRAM DOES NOT WARRANT THAT THE TANGRAM TECHNOLOGY WILL BE ERROR-FREE, UNINTERRUPTED, OR COMPATIBLE WITH ANY PARTICULAR DEVICE. 

9. LIMITATION OF LIABILITY. EXCEPT FOR CUSTOMER’S INDEMNIFICATION OBLIGATIONS WITH RESPECT TO A CLAIM UNDER THE AGREEMENT: (i) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE AGREEMENT, HOWEVER CAUSED, AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (ii) NEITHER PARTY’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THE AGREEMENT (EXCEPT FOR CUSTOMER’S PAYMENT OBLIGATIONS) WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY. 

10. GENERAL PROVISIONS

1. Assignment. Customer may not assign the Agreement or any of its rights or obligations under the Agreement without the prior written consent of Tangram. Tangram may assign the Agreement without the consent of Customer as part of a corporate reorganization, or upon a change of control, consolidation, merger, sale of all or substantially all of its business or assets related to the Agreement, or a similar transaction or series of transactions. Subject to the foregoing, the Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

2. Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under the Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, pandemic, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure or degradation of the Internet. The delayed party shall give the other party notice of such cause and shall use its commercially reasonable efforts to correct such failure or delay in performance.

3. Governing Law. The Agreement shall be governed by and construed under the laws of the State of California without reference to conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Subject first to Section 10(f), if a lawsuit or court proceeding is permitted under the Agreement, the parties will be subject to the exclusive jurisdiction of the state and federal courts located in San Mateo County, California, and the parties hereby agree and consent to the exclusive jurisdiction and venue of such courts. 

4. Publicity. Tangram may use Customer’s name as a reference for marketing or promotional purposes on Tangram’s website and in other communication with existing or potential Tangram customers; subject to Customer’s prior approval of any such use. 

5. Government Rights. Tangram provides the Tangram Technology, including any related software, data, and technology, for ultimate government end use solely in accordance with the following: The Software, API, and Client-Side Software shall constitute “commercial” computer software. Government technical data and software rights related to the Software, Client-Side Software and API include only those rights customarily provided to the public as defined in the Agreement. These customary commercial licenses are provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Customer-Side Application) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Customer-Side Application or Computer Customer-Side Application Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Tangram to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.

6. Arbitration. The parties agree to resolve all disputes arising under or in connection with the Agreement through binding arbitration. A party who intends to seek arbitration must first send a written notice of the dispute to the other party. The parties will use good faith efforts to resolve the dispute directly, but if the parties do not reach an agreement to do so within 30 days after the notice is received, either party may commence an arbitration proceeding. The arbitration will be conducted in accordance with the applicable rules of the American Arbitration Association (“AAA”). The arbitration will be conducted in English in San Francisco, California, USA. If the parties do not agree on an arbitrator, the arbitrator will be selected in accordance with the applicable rules of the AAA for the appointment of an arbitrator. The selection of an arbitrator under the rules of the AAA will be final and binding on the parties. The arbitrator must be independent of the parties. The arbitrator’s decision will be final and binding on both parties, and the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The costs and expenses of the arbitration will be shared equally by both parties; however, if the arbitrator finds that either the substance of the claim or the relief sought in arbitration is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. Notwithstanding the foregoing, this Section 10(f) will not prohibit either party from: (i) bringing an individual action in small claims court; (ii) seeking injunctive or other equitable relief in a court of competent jurisdiction; (iii) pursuing an enforcement action through the applicable federal, state, or local agency if that action is available; or (iv) filing suit in a court of law to address an intellectual property infringement or misappropriation claim. If this Section 10(f) is found to be unenforceable, the parties agree that the exclusive jurisdiction and venue described in Section 10(c) will govern any action arising out of or related to the Agreement. 

7. Miscellaneous. In the event of a conflict between this Agreement and any Order, the terms and conditions of this Agreement will prevail unless otherwise expressly stated in the Order. The Agreement is the sole agreement of the parties concerning the subject matter hereof and supersedes all prior agreements and understandings with respect to said subject matter. Customer may not subcontract or delegate any rights or obligations granted to it under the Agreement to any third parties, including its consultants or contractors, without the prior written consent of Tangram. Customer agrees that it is solely responsible for any liability arising out of Employee Users access and use of the Tangram Technology in violation of this Agreement. No terms of any purchase order, acknowledgement, or other form provided by Customer in connection with an Order will modify the Agreement, regardless of any failure of Tangram to object to such terms. Any ambiguity in the Agreement shall be interpreted without regard to which party drafted the Agreement or any part thereof. There are no third party beneficiaries to the Agreement. The headings in the Agreement are inserted for convenience and are not intended to affect the interpretation of the Agreement. Any required notice shall be given in writing by customary means with receipt confirmed at the address of each party set forth above, or to such other address as either party may substitute by written notice to the other, or by email. Notices will be deemed to have been given at the time of actual delivery in person, 1 day after delivery to an overnight courier service, 3 days after deposit in certified mail, or upon sending of an email. The relationship between the parties shall be that of independent contractors. Tangram may use subcontractors or otherwise delegate aspects of its performance under the Agreement; provided, however, that Tangram shall remain responsible hereunder for any such subcontractor’s performance. Waiver of any term of the Agreement or forbearance to enforce any term by either party shall not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of the Agreement. Any provision found to be unlawful, unenforceable or void shall be severed from the remainder of the Agreement and the remainder of the Agreement will continue in full force and effect without said provision. The parties agree to comply with all applicable export control laws and regulations related to their performance of the Agreement.