Master Subscription Agreement

1. CONTRACT STRUCTURE & ORDER-OF-PRECEDENCE

This Thankful Master Subscription Agreement ("Agreement") is entered into between Thankful AI, Inc., a Delaware corporation doing business as Thankful ("Thankful") and the customer ("Customer") identified on the corresponding mutually or electronically executed order document between Customer and Thankful that references this Agreement ("Order Form") as of the effective date identified in the initial Order Form ("Effective Date"). "Customer" and "Thankful" also include such Party’s respective Affiliates, and Customer and Thankful may be referred to in this Agreement individually as a "Party" and collectively as the "Parties." Capitalized terms in this Agreement are defined in Section 16 (Definitions) and elsewhere in this Agreement. This Agreement and all Order Forms govern Customer’s access to and use of Thankful’s Service. In the event of any conflicts between this Agreement, any Order Form, and/or any SOW, the following order-of-precedence applies: SOW take precedence and prevail over Order Forms solely with respect to the subject matter of SOW; and Order Forms and SOW take precedence and prevail over this Agreement solely with respect to their respective subject matter.

2. OWNERSHIP OF SERVICE & CUSTOMER DATA

2.1 Ownership of the Service. The Service is the property of Thankful and its licensors, and is protected by copyright, patent, trade secret and other intellectual property laws. Thankful and its licensors retain any and all rights, title and interest in and to the Service (including, without limitation, all Intellectual Property Rights), including all copies, modifications, extensions and derivative works thereof. Customer’s right to use the Service is limited to the rights expressly granted in this Agreement and the applicable Order Forms. All rights not expressly granted to Customer are reserved and retained by Thankful and its licensors.

2.2 Ownership and Use of Customer Data. As between Customer and Thankful, (a) all Customer Data is the property of Customer, and (b) Customer retains any and all rights, title and interest in and to the Customer Data, including all copies, modifications, extensions and derivative works thereof. Thankful’s use of Customer Data shall be limited to providing the Service to Customer and otherwise meeting its obligations under this Agreement. All rights to Customer Data not expressly granted to Thankful hereunder are reserved and retained by Customer.

3. GRANT OF RIGHTS

3.1 Subject to the terms and conditions of this Agreement, Thankful hereby grants to Customer the non-exclusive, non-transferable (except as specified in Section 16.2 (Assignment)), worldwide, royalty-free right to access and use the Service during the Service Term in accordance with the limitations in this Agreement and the terms of all applicable Order Form(s) and SOW(s) (e.g., any transaction volume terms and limitations to particular Customer legal entities, business units, projects, brands, products and/or services set forth therein).

3.2 Customer hereby grants to Thankful a worldwide, non-exclusive, nontransferable (except as specified in Section 16.2 (Assignment)), non sub-licensable right and license to process, receive, store, host, enhance, analyze, model, match, reproduce, transfer to any third-party authorized by Customer and maintain the Customer Data during the term of and as expressly set forth in the applicable Order Form solely for purposes of providing the Service pursuant to this Agreement.

3.3 Customer acknowledges that Thankful uses the text-based queries generated by Customer’s Users of the Service to train Thankful’s machine-learning models to provide the Service to Customer and Customer’s Users and to provide the Service generally. Notwithstanding any other term of this Agreement, Thankful may access and use, and shall retain all right, title and interest in all Training Data, so long as such data is anonymized and does not reveal the identity or traits of any particular individual User or of Customer. To the extent that Customer holds any rights, title or interest in or to any Training Data, Customer hereby unconditionally and irrevocably assigns all such rights, title and interest in and to the Training Data, including all Intellectual Property Rights relating thereto.

3.4 Customer hereby grants to Thankful a royalty-free, worldwide, perpetual license to use or incorporate into the Service and Content any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by or on behalf of Customer, solely as such information relates to the Service and/or Content, and expressly excludes any Customer Confidential Information.

4. USE OF SERVICE

4.1 Customer Responsible for User Accounts. Customer is responsible for all activity occurring under Customer’s User accounts, and must comply with all applicable laws and regulations in connection with using the Service. Customer also must (a) notify Thankful promptly upon becoming aware of any unauthorized use of any Customer password or account (or any other breach of security of the Service), and (b) notify Thankful promptly upon becoming aware of, and stop, any unauthorized copying, distribution or other misuse of any aspect of the Service.

4.2 Use Restrictions. Customer must not, without Thankful’s prior written consent, cause or permit the: (a) use, copying, modification, rental, lease, sublease, sublicense, transfer or other commercial exploitation of, or other third party access to, any element of the Service, except to the extent expressly permitted by this Agreement (Customer may allow its own customers to access the functionality or output of the Service, via interfaces, portal applications and the like, solely for Customer’s internal business purposes in accordance with the applicable Order Form); (b) creation of any modifications or derivative works of the Service; (c) reverse engineering of the Service; (d) gaining of unauthorized access to the Service or its related systems or networks (for example, by impersonation of another user of the Service or provision of false identity information); (e) interference with or disruption of the integrity or performance of the Service or the data contained therein (for example, via unauthorized benchmark testing or penetration testing); (f) sending, storing or use of any Customer Data in connection with the Service for which Customer lacks sufficient ownership or other rights; (g) sending of spam or otherwise duplicative or unsolicited messages in violation of applicable law; (h) sending or storing of infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material in connection with the Service (including, without limitation, any material harmful to children or violative of third party privacy rights); or (i) sending or storing of any material containing any viruses, worms, trojan horses or other malicious or harmful computer code, files, scripts, agents or programs in connection with the Service.

5. PRIVACY, SECURITY, CONTINUITY & SUPPORT

5.1 Compliance with Privacy Laws. Thankful shall use Customer Data only as permitted by this Agreement, and subject to applicable Privacy Laws; provided, however, that if compliance with any Privacy Laws would materially change Thankful’s costs or risks in providing the Service (including, without limitation, by requiring that any Thankful data centers be located outside the U.S., or requiring Thankful to operate in violation of any U.S. laws), each Party shall have the right to terminate this Agreement (including all Order Forms and SOWs) under Sections 6.2 and 6.5, upon at least thirty (30) days prior written notice to the other Party, unless Customer and Thankful agree in writing within such 30-day period that Thankful may continue to provide the Service to Customer without complying with the Privacy Laws giving rise to such material change. In the event of such a termination under this section, Customer’s sole right, and Thankful’s sole obligation, shall be for Thankful to promptly refund to Customer on a pro rata basis any Fees paid under all Order Forms then in effect that are unused as of the termination effective date.

5.2 Security of the Service. Thankful’s data security program for the Service shall: include reasonable administrative, physical, technical, organizational and other security measures to protect against unauthorized access to, or destruction, loss, unavailability or alteration of, any Customer Data residing in the Service. Thankful shall not be responsible or liable for any deletion, correction, damage, destruction or loss of Customer Data that does not arise from a breach by Thankful of its obligations under this Agreement.

5.3 Business Continuity & Disaster Recovery. Thankful shall maintain and implement throughout the term of this Agreement commercially reasonable business continuity and disaster recovery plans to help ensure availability of the Customer Data following any significant interruption or failure of critical business processes or systems affecting the Service.

5.5. Support Agreement. Thankful shall provide technical support for the Service in accordance with Exhibit A to this Agreement (Support Agreement) as long as Customer is entitled to receive support under the applicable Order Form and this Agreement.

6. TERM & TERMINATION

6.1 Term of Agreement. This Agreement shall begin on the Effective Date and continue in effect until all Order Forms and SOWs expire or are terminated in accordance with Section 6.5.

6.2 Termination of Agreement. Neither Party shall have the right to terminate this Agreement without legally valid cause (a/k/a "for convenience"). Each Party may terminate this Agreement only by terminating in accordance with Section 6.5 for all Order Forms and any SOWs then in effect.

6.3 Effect of Expiration or Termination of Agreement. Sections 1, 2, 4.2, 6.3, 6.6, 8, 9,10, 11, 12.3, 13, 14, 15, and 16 of this Agreement shall survive any expiration or termination of this Agreement. The applicable Order Forms and SOWs may identify additional terms that shall survive any expiration or termination of this Agreement. Regardless of the basis for expiration or termination of this Agreement, Thankful shall not be obligated to retain any Customer Data for longer than thirty (30) days after any such expiration or termination. Furthermore, Customer acknowledges that the Service accesses the Customer Data from Customer-hosted or third-party services and databases that Customer provides Thankful access to. Therefore, any Customer Data that Thankful uses to provide the Service is duplicative of information stored with Customer or other service providers of Customer.

6.4 Term of Order Forms. The term of each Order Form shall be set forth therein. Unless otherwise stated in the Order Form, the initial term shall start on the Effective Date specified in the Order Form and continuing for the initial term specified therein ("Initial Service Term"). Any applicable renewal service term (each a "Renewal Service Term") shall be set forth in the applicable Order Form. The Initial Service Term and all Renewal Service Terms (if any) are referred to in this Agreement collectively as the "Service Term."

6.5 Termination of Order Forms or SOWs. Either Party may terminate any Order Forms and/or SOW in accordance with their respective terms. If not specified in the applicable Order Form or SOW, then subject to the Bona Fide Payment Dispute terms in Section 8.2, and subject to the exclusive remedy provisions in this Agreement (e.g., in the sections regarding Compliance with Privacy Laws, Indemnification, Warranties and Service Levels): either Party may terminate any Order Forms or SOW for cause upon written notice, if the other Party fails to cure any material breach thereof within thirty (30) days after receiving a reasonably detailed written notice from the other Party alleging the breach.

6.6 Effect of Termination of Order Forms or an SOW. In the event of termination of an Order Form or SOW under Section 6.5: (a) Customer shall promptly pay Thankful all amounts owed thereunder as of the effective date of termination; (b) Customer shall be entitled to a refund, on a pro rata basis, of any Fees paid under such Order Form or SOW that are unused as of the termination effective date (other than in the case of a termination by Thankful based on uncured material breach by Customer, in which case Customer shall not be entitled to any refund); and (c) all other terms of such Order Form or SOW that reasonably should survive such termination shall survive.

7. ORDER PROCESS

Customer orders the Thankful Service via one or more Order Forms, and Customer orders Thankful’s Professional Services via one or more SOWs.

7.1 Purchase Orders. If Customer requires that a purchase order ("PO") be issued before making payment under an Order Form or SOW, Customer must provide to Thankful such valid PO conforming to the applicable Order Form or SOW in time for Customer to meet its payment obligations. The terms and conditions of any PO (or of any other unilateral Customer document not agreed in writing by authorized representatives of both Parties) shall have no effect on the rights or obligations of the Parties, regardless of any failure to object to such terms and conditions.

7.2. Modification of Fees Upon Renewal. Thankful reserves the right to modify the Fees for its Service under one or more Order Forms, effective upon commencement of the next Renewal Service Term of the relevant Order Form(s), by notifying Customer in writing at least sixty (60) days before the end of the then-current Service Term, unless Customer notifies Thankful in writing, at least thirty (30) days prior to the end of the then-current Service Term, that Customer chooses not to renew such Order Form(s), unless otherwise stated in the applicable Order Form.

8. FEES & PAYMENT

8.1 Payment Details. Customer must pay all undisputed fees and charges in accordance with this Agreement and each mutually executed Order Form and SOW ("Fees"). Except to the extent otherwise expressly stated in this Agreement (e.g., in Sections 6.6 and 8.2), or in an Order Form or SOW:

a. all obligations to pay Fees are non-cancelable and non-refundable (except as specifically set forth in this Agreement);
b. Customer must make all payments without setoffs, withholdings or deductions of any kind;
c. Customer must pay all undisputed Fees due under all Order Forms and SOW within thirty (30) days after Customer receives each invoice (invoices are deemed received when Thankful emails them to Customer’s designated billing contact); and
d. all payments must be in U.S. dollars.

Except to the extent otherwise expressly stated therein, if an applicable Order Form or SOW provides for payment via credit card or electronic money transfer (e.g., ACH), Thankful is permitted to process such payment on the date of Thankful’s invoice.

8.2 Bona Fide Payment Disputes. Customer’s failure to pay some or all of a Thankful invoice in good faith shall not constitute a breach of this Agreement (or the relevant Order Form(s) and/or SOW), or justify imposition of any late payment or collection fees or suspension of the Service, for as long as Customer satisfies all of the following requirements:

a. Customer reasonably believes the amount shown as due on the relevant invoice is greater than what actually is due under the express terms of this Agreement and the applicable Order Form(s) and/or SOW;
b. Customer provides reasonably detailed written notice to Thankful, within fifteen (15) days of receiving the disputed invoice, explaining the basis of Customer’s dispute of the invoice (the "Bona Fide Payment Dispute Notice");
c. as of the date Customer provides the Bona Fide Payment Dispute Notice or the due date of the original invoice (whichever is later), Customer has paid all undisputed amounts in accordance with this Agreement and the applicable Order Form(s) and/or SOW;
d. Customer only withholds payment of any Fees that are the basis of a dispute;
e. Customer makes a commercially reasonable, good faith effort to negotiate and resolve such payment dispute with Thankful within thirty (30) days after providing the Bona Fide Payment Dispute Notice; provided Thankful also makes a commercially reasonable, good faith effort to negotiate and resolve the payment dispute within the same timeframe; and
f. Customer promptly makes full payment to Thankful of all amounts within fourteen (14) days after resolution of any dispute.

Thankful shall have the right to impose applicable late payment and/or collection fees, suspend Customer’s access to the Service, and/or terminate the relevant Order Form(s), SOW and/or this Agreement for cause, in accordance with this Agreement, if at any time Customer fails to satisfy any of the criteria set forth in Subsections 8.2 (a)-(f).

8.3 Taxes. Thankful’s Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities in connection with any Order Forms or SOW. Customer is responsible for paying all such taxes, levies, or duties, excluding only taxes based solely on Thankful’s income. If Thankful has the legal obligation to pay or collect taxes for which Customer is responsible, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Thankful a valid tax exemption certificate authorized by the appropriate taxing authority.

8.4 Customer Contact Information. Customer agrees to provide Thankful accurate billing and other contact information for each Order Form and SOW at all times during the Service Term, including the name of Customer’s applicable legal entity, and the street address, e-mail address, name and telephone number of an authorized billing contact. Customer shall update this information within thirty (30) days after any changes, via email to Thankful’s Accounts Receivable team at accounting@thankful.ai for billing contact information. Customer shall also maintain, at all times during the Service Term, at least one User who is a current employee and is authorized to administer Customer’s use of the Service (e.g., by creating accounts and resetting passwords).

8.5 Consequences of Non-Payment. Subject to Section 8.2, if Customer fails to make any payments required under any Order Forms or SOW, then in addition to any other rights Thankful may have under this Agreement or applicable law:

a. Customer shall owe Thankful an interest penalty of one and one-half percent (1.5%) per month on any outstanding balance under each delinquent invoice, or the maximum permitted by law (whichever is less);
b. Thankful shall be entitled to recover its reasonable attorneys’ fees and other legal expenses (including expert witness fees and expenses on appeal) and reasonable costs of collection) to recover any amounts owed to Thankful; and
c. Thankful reserves the right to temporarily suspend Customer’s access to the Service if Customer’s account remains delinquent for thirty (30) days after receipt of a delinquency notice from Thankful (which may be provided via email to Customer’s billing contact). Customer shall continue to incur and owe all applicable Fees irrespective of any such Service suspension due to Customer’s delinquency.

9. THIRD PARTY INTERACTIONS

To the extent use of the Service requires use of any third party products or services (e.g., Adobe Magento, Gladly, HelpScout, Kustomer, Shopify, Zendesk, Amazon Web Services, and/or a Web browser), such products and services may require Customer to agree to separate terms. Similarly, in connection with using the Service, Customer may enter into correspondence with, purchase products and/or services from, and/or participate in promotions of third parties. Any such third party activities, products and services, and any terms associated therewith, are solely between Customer and the relevant third parties. Thankful does not support, or endorse or make any representations or warranties regarding, any such third party products or services, and in no event shall Thankful have any liability whatsoever in connection therewith.

10. PROFESSIONAL SERVICES

If Customer wishes to purchase any training, implementation or other professional services from Thankful relating to the Service ("Professional Services"), the Parties shall mutually execute one or more separate SOWs containing the relevant terms and conditions. Thankful Professional Services are separate and apart from the Service, and neither Party’s obligations in connection with the Service are dependent in any way on any Professional Services. Except to the extent expressly set forth to the contrary in any applicable SOW, the following provisions shall apply to all SOWs:

a. As between Customer and Thankful, Customer shall retain all ownership rights in and to all copyrightable works, deliverables, designs, inventions, know-how, software, techniques, trade secrets, work product and other materials created by or for Customer without any contribution by Thankful and provided to Thankful under the SOWs. Customer grants Thankful a limited, non-exclusive, non-transferable, worldwide, royalty-free license to reproduce, perform, display, distribute, create derivative works of, and otherwise use such Customer-owned materials solely for Thankful’s use in connection with providing the Professional Services;
b. All methodologies, processes, techniques, ideas, concepts, know-how, procedures, software, tools, writings and other intellectual property that Thankful has created, acquired or developed prior to the date of this Agreement are, and shall remain, the sole and exclusive property of Thankful, and Customer shall not acquire any interest therein except as otherwise provided herein (collectively, "Thankful Tools"). Thankful grants to Customer a limited, perpetual, nonexclusive, worldwide, royalty-free license to use the Thankful Tools to the extent incorporated into the Deliverables (defined below); provided, that the license to the Thankful Tools does not include any right for Customer to use or access the Service, unless Customer is paying the Fees as provided for in this Agreement and the applicable Order Form.
c. As between Customer and Thankful, Thankful acknowledges and agrees that it is providing the Professional Services as an independent contractor under the "works made for hire" doctrine as defined in the United State Copyright Act, and all copyrightable works, deliverables, designs, inventions, know-how, software, techniques, trade secrets, work product and other materials created by or for Thankful (either alone or jointly with Customer or others) in performance or in furtherance of the Professional Services shall automatically become "works made for hire" and thus the sole property of Customer (collectively, the "Deliverables"). For purposes of illustration, Deliverables include, but are not limited to, deliverables, analyses, reports, research, ideas, concepts, methodologies, and improvements and/or derivatives thereof. If and to the extent that any portion of the Deliverables are deemed not to be "works made for hire," Thankful hereby assigns to Customer all worldwide copyright in and to the Deliverables, including without limitation, all of the exclusive rights listed in 17 U.S.C. §106. To the extent any assignment hereunder shall be determined to be invalid, Thankful hereby grants to Customer a worldwide, irrevocable, royalty-free license, in perpetuity, to use the Deliverables; provided, that such license to the Deliverables does not include any right for Customer to use or access the Service, unless Customer is paying the Fees as provided for in this Agreement and the applicable Order Form. Upon the request and at the expense of Customer, Thankful shall execute and deliver any and all instruments and documents and take such other acts as may be necessary or desirable to document the assignment and transfer described in this Section or to enable Customer to secure its rights in the Deliverables.

Nothing in this Agreement shall prohibit, restrict or limit (i) Thankful from performing similar Professional Services for any third party, or (ii) Customer from hiring any third party to perform similar Professional Services (though Customer is not permitted to give any direct competitor of Thankful access to the Service or any Thankful Tools without Thankful’s prior written consent).

11. WARRANTIES & DISCLAIMERS

11.1 Mutual Warranties. Each Party represents and warrants to the other that it has the legal power and authority to enter into this Agreement, and that:

(a) this Agreement has been duly authorized, executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms;
(b) to the best of its knowledge, no authorization or approval from any third party is required in connection with such Party’s execution, delivery or performance of this Agreement; and
(c) to the best of its knowledge, the execution, delivery and performance of this Agreement does not violate the terms or conditions of any other legally binding agreement.

11.2 Additional Thankful Commitments. Thankful further represents and warrants that:

a. It shall use commercially reasonable technical means to screen for and detect disabling devices, viruses, trojan horses, trap doors, back doors, Easter eggs, time bombs, cancelbots and other computer programming routines designed to damage, detrimentally interfere with, surreptitiously intercept or expropriate any other software or data;
b. The Service shall perform in accordance with the relevant product data sheet(s) found at https://www.thankful.ai/product under normal use and circumstances; and
c. It shall, to the extent practicable, notify Customer, at least thirty (30) days in advance via Thankful’s Normal Communication Channels, of any scheduled changes Thankful believes are likely to have a material, adverse impact on Customer’s use of the Service ("Material Changes"). (Thankful reserves the right to make enhancements and other changes to the Service, including occasional deprecation and removal of certain features and functionality.)
d. The Service and the Professional Services be provided in a professional, workmanlike, and timely manner in accordance with this Agreement and all applicable laws.

If Thankful breaches any warranties in this Section 11.2, Thankful shall make commercially reasonable efforts to correct the non-conformity or, if Thankful is unable to correct the non-conformity within sixty (60) days after receipt of Customer’s written notice, for Customer to terminate the applicable Order Form(s) and receive a refund, on a pro rata basis, of any Fees paid under such Order Form(s) that are unused as of the termination effective date.

11.3 Warranty Disclaimers. EXCEPT TO THE EXTENT EXPRESSLY STATED IN THIS AGREEMENT:

(A) THANKFUL AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED (IN FACT OR BY OPERATION OF LAW), REGARDING THE SERVICE, PROFESSIONAL SERVICES, OR ANY MATTER WHATSOEVER; AND
(B) THANKFUL AND ITS LICENSORS DO NOT WARRANT THAT THE SERVICE OR ANY PROFESSIONAL SERVICES ARE OR SHALL BE ERROR-FREE, MEET CUSTOMER’S REQUIREMENTS, OR BE TIMELY OR SECURE.

THANKFUL AND ITS LICENSORS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICE AND ANY PROFESSIONAL SERVICES, AND CUSTOMER HAS NO RIGHT TO MAKE OR PASS ON TO ANY THIRD PARTY ANY REPRESENTATION OR WARRANTY BY THANKFUL.

THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET OR ELECTRONIC COMMUNICATIONS. THANKFUL IS NOT RESPONSIBLE FOR DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE, LOSS OR LIABILITY RESULTING FROM SUCH PROBLEMS NOT CAUSED BY THANKFUL.

CUSTOMER AGREES THAT ITS SUBSCRIPTION TO THE SERVICE AND FEES DUE OR PAID UNDER THIS AGREEMENT ARE NEITHER CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES, NOR BASED ON ANY ORAL OR WRITTEN COMMENTS REGARDING ANY FUTURE FUNCTIONALITY OR FEATURES.

12. INDEMNIFICATION

12.1 By Thankful. Thankful shall indemnify, defend, and hold harmless Customer, its Affiliates, officers, directors, employees, successors and permitted assigns from and against any claims, demands, actions or other legal proceedings asserted or brought by a third party based on an allegation that use of the Service in accordance with this Agreement and the applicable Order Form(s) infringes a copyright in any country or a patent of the U.S.A., a member state of the European Union, Canada or Australia (collectively, "Claims"). Thankful shall also indemnify Customer and its Affiliates, officers, directors and employees by paying all damages, costs and expenses (including reasonable legal fees and costs) finally awarded by a court of competent jurisdiction, or agreed in a written settlement agreement signed by Thankful, arising out of such Claims.

If (a) any aspect of the Service is found by a court or, in Thankful’s reasonable opinion is likely to be found by a court, to infringe upon a third party Intellectual Property Right, or (b) the continued use of the Service is enjoined, Thankful shall promptly and at its own expense: (i) obtain for Customer the right to continue using the Service in accordance with this Agreement and the applicable Order Form(s); (ii) modify the item(s) in question to no longer be infringing; or (iii) replace such item(s) with a non-infringing functional equivalent. If, after all commercially reasonable efforts, Thankful determines in good faith that options (i), (ii) and (iii) are not feasible, Thankful shall remove the infringing item(s) from the Service and refund to Customer on a pro rata basis any Fees paid by Customer for such infringing element(s) that are unused as of the removal date.

Thankful shall have no obligation or liability for any Claim under this section to the extent arising from: (x) the combination, operation or use of the Service with any product, device, software or service not supplied by Thankful to the extent the combination creates the infringement; (y) the unauthorized alteration or modification by Customer of the Service, but solely to the extent that such Claim would have been avoided without such alteration or modification, or (z) Thankful’s compliance with Customer’s designs, specifications, requests, or instructions in providing Professional Services to the extent the Claim is based on such compliance.

12.2 By Customer. Customer shall indemnify, defend and hold harmless Thankful, its Affiliates, officers, directors, employees, successors and permitted assigns from and against any claims asserted by a third party based on (a) a breach by Customer of Section 4.2 of this Agreement, or (b) the processing of Customer Data in accordance with this Agreement (except to the extent such claims are covered by the indemnity provided by Thankful under Section 12.1 above) or violates applicable law because of an act or omission of Customer. Customer shall also indemnify Thankful and its Affiliates, officers, directors and employees by paying all damages, costs and expenses (including reasonable legal fees and costs) finally awarded by a court of competent jurisdiction, or agreed in a written settlement agreement signed by Customer, arising out of the third party claims described in this section.

12.3 Requirements for Indemnification. Each Party’s respective defense and indemnity obligations under Sections 12.1 and 12.2 are contingent upon the other Party: (a) promptly giving notice of the third party claim to the defending/indemnifying Party once the claim is known; (b) giving the defending/indemnifying Party sole control of the defense and settlement of the claim and not compromising or settling the claim without the defending/indemnifying Party’s approval (though the defending/indemnifying Party must not settle such claim unless the settlement unconditionally releases the other Party of all liability and does not adversely affect the other Party’s business or service in a material manner); and (c) making a reasonable effort to provide appropriate information and cooperation to the defending/indemnifying Party, at the defending/indemnifying Party’s expense, in connection with the claim.

THE FOREGOING ARE THE DEFENDING/INDEMNIFYING PARTY’S SOLE OBLIGATIONS, AND THE OTHER PARTY’S EXCLUSIVE REMEDIES, IN CONNECTION WITH THIS AGREEMENT WITH RESPECT TO INDEMNIFICATION AND THE MATTERS ADDRESSED IN THIS SECTION 12.

13. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW:

13.1 EXCEPT FOR SUMS DUE THANKFUL UNDER APPLICABLE ORDER FORMS AND SOWS, AND EXCEPT WITH RESPECT TO (A) CUSTOMER’S OBLIGATIONS UNDER SECTION 4.2 (USE RESTRICTIONS), (B) THANKFUL’S OBLIGATIONS UNDER SECTION 5.2 (DATA SECURITY), (C) EACH PARTY’S OBLIGATIONS UNDER SECTION 12 (INDEMNIFICATION), AND (C) EACH PARTY’S OBLIGATIONS UNDER SECTION 14 (CONFIDENTIALITY) ALL OF WHICH ((A), (B), (C) AND (D)) SHALL BE SUBJECT TO A TOTAL AGGREGATE LIABILITY CAP OF THE HIGHER OF (X) ONE MILLION DOLLARS ($1,000,000) OR (Y) THREE TIMES (3X) THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM, NEITHER PARTY’S TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATING TO THIS AGREEMENT SHALL EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY;

13.2 EXCEPT FOR (A) EACH PARTY’S OBLIGATIONS UNDER SECTION 12 (INDEMNIFICATION), AND (B) EACH PARTY’S OBLIGATIONS UNDER SECTION 14 (CONFIDENTIALITY), IN NO EVENT SHALL EITHER PARTY OR ITS AFFILIATES, OWNERS, OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS, SUCCESSORS OR PERMITTED ASSIGNS, BE LIABLE OR OTHERWISE OBLIGATED TO THE OTHER PARTY OR ANYONE ELSE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, REGARDLESS OF CAUSE, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS PREVIOUSLY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND

13.3 THE TERMS OF SECTION 13 APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER THE ASSERTED LIABILITY OR DAMAGES ARE BASED ON CONTRACT (INCLUDING, BUT NOT LIMITED TO, BREACH OF WARRANTY), TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL OR EQUITABLE THEORY.

THE PROVISIONS OF THIS SECTION 13 ALLOCATE RISKS UNDER THIS AGREEMENT BETWEEN CUSTOMER AND THANKFUL, AND THE FEES CHARGED FOR THE SERVICE REFLECT THIS ALLOCATION OF RISKS AND THESE LIMITATIONS OF LIABILITY.

14. CONFIDENTIALITY

14.1 Definition. As used in this Agreement, "Confidential Information" means information and materials provided by the disclosing Party ("Discloser") to the Party receiving such information or materials ("Recipient") that (a) are identified as confidential at the time of disclosure, or (b) a reasonable person in the relevant industries should understand to be confidential based on the nature of the information and materials and all other relevant factors. For the avoidance of doubt, Customer’s Confidential Information includes, without limitation, Customer Data, Deliverables and Customer’s non-public business plans, and Thankful’s Confidential Information includes, without limitation, pricing terms offered under any Order Form, Thankful’s non-public business plans, all non-public aspects of the Thankful Technology, Thankful Tools, and the results of any evaluation of the Service performed by or on behalf of Customer for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.

14.2 Purpose. Recipient must not use any of Discloser’s Confidential Information for any purpose other than carrying out Recipient’s obligations or exercising its rights under this Agreement (the "Purpose"). For the avoidance of doubt, use of Confidential Information in an aggregated and anonymized manner that does not include personally identifiable information and/or personal information is not prohibited.

14.3 Permitted Disclosures and Obligations. Recipient also must not disclose to any third party any Confidential Information, other than to Recipient’s Affiliates, contractors and consultants who (a) need to know such information in order to fulfill the Purpose, and (b) are bound by confidentiality obligations substantially similar to Recipient’s under this Agreement (each Party is fully responsible for its respective Affiliates’, contractors’ and consultants’ compliance with this Agreement). Recipient must treat all Discloser Confidential Information with the same degree of care Recipient gives to its own Confidential Information, but not less than reasonable care. Recipient and its Affiliates, contractors and consultants who receive Confidential Information hereunder must: (i) not use any such Confidential Information to compete with Discloser or in any other way except as reasonably necessary for the Purpose; (ii) not reverse engineer, disassemble or decompile any prototypes, software or other tangible objects received from Discloser under this Agreement that embody Confidential Information; (iii) promptly notify Discloser of any unauthorized use or disclosure of its Confidential Information of which Recipient becomes aware; and (iv) reasonably assist Discloser in remedying any such unauthorized use or disclosure.

14.4 Exclusions. Recipient’s obligations under Section 14 do not apply to Discloser Confidential Information that Recipient can prove: (a) is or becomes part of the public domain through no fault of Recipient; (b) is rightfully in Recipient’s possession free of any confidentiality obligation; (c) was independently developed by Recipient without using any Discloser Confidential Information as evidenced by documentation of Recipient in existence at the time of disclosure of the Discloser’s Confidential Information; or (d) is communicated by Discloser to an unaffiliated third party free of confidentiality obligation. Disclosure by Recipient of Confidential Information (i) in response to a valid order or other legal process issued by a court or other governmental body having jurisdiction, (ii) as otherwise required by law, or (iii) necessary to establish the rights of either Party shall not breach this Agreement if, to the extent legally permitted, Recipient gives prompt written notice and reasonable cooperation so Discloser may seek to prevent or limit such disclosure.

14.5 Ownership and Destruction of Confidential Information. As between Discloser and Recipient, all Discloser Confidential Information is the property of Discloser, and no license or other rights are granted or implied hereby. All materials provided to Recipient by Discloser, whether or not they contain or disclose Confidential Information, are Discloser’s property. Promptly after any request by Discloser, Recipient shall (a) destroy or return to Discloser all Confidential Information and materials in Recipient’s possession or control, and (b) upon written request by Discloser, confirm such return/destruction in writing; provided, however, that the Recipient may retain electronic copies of any computer records or electronic files containing any Discloser Confidential Information that have been created pursuant to Recipient’s standard, commercially reasonable archiving and backup practices, as long as Recipient continues to comply with this Agreement with respect to such electronic backup copies for so long as such Confidential Information is retained.

14.6 Export. Exchange of Confidential Information is subject to all applicable export laws and regulations. Except to the extent permitted by a separate agreement, the Parties shall not disclose any information requiring an authorization to be exported.

14.7 Confidentiality Period. Recipient’s obligations with respect to Discloser’s Confidential Information under Section 14 shall remain in effect for the term of this Agreement and for five (5) years after any expiration or termination of this Agreement; provided, however, that Recipient’s obligations under this Agreement shall continue to apply to Confidential Information that qualifies as a trade secret under applicable law for as long as it so qualifies.

15. GENERAL

15.1 Governing Law; Venue; Attorney’s Fees. This Agreement shall be governed by California law and controlling United States federal law, without regard to the conflicts of law provisions of any jurisdiction. If any action is necessary to enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and expenses, in addition to any other relief that such prevailing party may be entitled. The parties (i) hereby irrevocably and unconditionally submit to the exclusive jurisdiction of the federal and state courts in the county of Los Angeles, California for the purpose of any suit, action or other proceeding arising out of or based upon this Agreement, (ii) agree not to commence any suit, action or other proceeding arising out of or based upon this Agreement except in such state and such courts, and (iii) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Agreement or the subject matter hereof may not be enforced in or by such court. The Service is a service, not a good, and is not subject to the Uniform Commercial Code, the Uniform Computer Information Transactions Act or the United Nations Convention on the International Sale of Goods.

15.2 Assignment. Neither Party may assign, sublicense or otherwise transfer (by operation of law or otherwise) this Agreement, or any of a Party’s rights or obligations under this Agreement, to any third party without the other Party’s prior written consent, which consent must not be unreasonably withheld, delayed or conditioned; provided, however, that either Party may assign or otherwise transfer this Agreement, along with all associated Order Forms and SOWs (and all its rights and obligations thereunder), (a) to a successor-in-interest in connection with a merger, acquisition, reorganization, a sale of most or all of its assets, or other change of control, or (b) to any of its Affiliates. In the event of such a permitted transfer by Customer, the rights granted under this Agreement shall continue to be subject to the same usage limitations that applied under applicable Order Forms prior to the transfer (e.g., any transaction volume terms and limitations to particular Customer legal entities, business units, projects, brands, products and/or services set forth therein). Any purported assignment or other transfer in violation of this section is void. Subject to the terms of this section, this Agreement shall bind and inure to the benefit of the Parties and their respective permitted successors and transferees.

Notwithstanding anything to the contrary in this section, in the event of any permitted transfer by a Party under this section to a direct competitor of the non-transferring Party, the non-transferring Party shall have the right to terminate this Agreement (including all associated Order Forms and SOWs) for cause under Section 6.5. In the event of such a termination, Thankful shall promptly refund to Customer, on a pro rata basis, all Fees prepaid by Customer under all Order Forms then in effect that are unused as of the termination effective date.

15.3 Force Majeure. If either Party is prevented from performing, or is unable to perform, any of its obligations under this Agreement due to any cause beyond its reasonable control, e.g., war, riots, labor unrest, fire, earthquake, flood, hurricane, pandemic, epidemic, other natural disasters and acts of God, Internet service failures or delays, and denial of service attacks (collectively, "Force Majeure"), the affected Party’s performance shall be excused for the resulting period of delay or inability to perform. The affected Party must, however, (a) give the other Party prompt written notice of the nature and expected duration of such Force Majeure, (b) use commercially reasonable efforts to mitigate the delay and other effects, (c) periodically notify the other Party of significant changes in the status of the force majeure, and (d) notify the other Party promptly when the Force Majeure ends.

15.4 Marketing. Customer hereby grants Thankful the right to use Customer’s name and logo on Thankful’s website and marketing materials. Within thirty (30) days after Customer goes live on the Service, (a) Customer and Thankful may, upon mutual written agreement to do so, issue a mutually agreed press release (or other joint public announcement), and (b) Customer shall also reasonably consider serving as a reference for Thankful.

15.5 Insurance. Customer shall maintain insurance coverage to reasonably cover its obligations under this Agreement. Thankful shall maintain insurance coverage as set forth on Exhibit B ("Thankful Insurance Summary"). Upon request, each Party shall provide to the other Party a copy of its current certificate of insurance evidencing such coverage.

15.6 Independent Contractors. The Parties are independent contracting parties. Neither Party has, or shall hold itself out as having, any right or authority to incur any obligation on behalf of the other Party. The Parties’ relationship in connection with this Agreement shall not be construed as a joint venture, partnership, franchise, employment, or agency relationship, or as imposing any liability upon either Party that otherwise might result from such a relationship.

15.7 Notices. All legal notices (e.g., notice of termination of this Agreement or an Order Form based on an alleged material breach) required under this Agreement must be delivered to the other Party in writing (a) in person, (b) by nationally recognized overnight delivery service, or (c) by certified U.S. mail (requiring signature) to the other Party’s corporate headquarters address as set forth in the Order Form, Attention: Legal Department. With respect to all other notices, Customer may email Thankful at legal@thankful.ai, and Thankful may email Customer’s billing contact identified on the applicable Order Form(s) or SOW. Either Party may change its notice address by giving written notice to the other Party.

15.8 Anti-Corruption. Customer acknowledges it has not received or been offered any illegal or otherwise improper bribe, kickback, payment, gift or other thing of value by any Thankful employee, representative or agent in connection with this Agreement. Customer shall use reasonable efforts to promptly notify Thankful at legal@thankful.ai if Customer becomes aware of any circumstances that are contrary to this acknowledgment.

15.9 Government Users. If Customer is a U.S. government entity, or this Agreement otherwise becomes subject to the Federal Acquisition Regulations (FAR), Customer acknowledges that the Service constitutes software and documentation provided as "Commercial Items" under 48 C.F.R. 2.101 and developed solely at private expense, and are being licensed made accessible to U.S. government Users as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.

15.10 Execution. This Agreement may be signed electronically and in counterparts, in which case each signed copy shall be deemed an original as though both signatures appeared on the same document.

15.11 Entire Agreement. This Agreement, together with any applicable Order Forms and SOWs (including any other terms referenced in any of those documents), comprises the entire agreement between Customer and Thankful regarding the subject matter of this Agreement, and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the Parties regarding such subject matter, and may only be modified by a document signed by authorized representatives of both Parties.

16. DEFINITIONS

As used in this Agreement:

"Affiliate" means a company, corporation, individual, partnership or other legal entity that directly or indirectly controls, is controlled by, or is under common control with a Party to this Agreement. For purposes of this definition, "control" means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity.

"Assist" means Thankful performs one or more of the following actions on a Customer helpdesk request: identification, tagging, routing, translation, sentiment detection, or data gathering and attachment.

"Content" means the audio and visual information, Documentation, Specifications, software, products and services contained in or made available via the Service, other than Customer Data and Customer Confidential Information. For the avoidance of doubt, Content includes Training Data and any information, data or other content derived from Thankful monitoring of access to or use of the Service, but does not include Customer Data.

"Customer Data" means any data, information or material received by the Service from Customer or Customer’s Users in the course of accessing or using the Service other than Training Data.

"Documentation" means any manuals, instructions or other documents or materials that Thankful provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Service or Content, including the Specifications and any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof, excluding any marketing or other publicly available materials.

"Intellectual Property Rights" means rights under any copyright, patent, trademark, trade secret and other intellectual property laws worldwide.

"Normal Communication Channels" means the online channels through which Thankful normally communicates important information to its customers, e.g., Thankful’s online knowledge center, and/or the email address(es) provided by Customer.

"Privacy Laws" means all laws and regulations regarding data privacy and transmission of personal data that apply to Thankful’s provision of the Service to Customer (e.g., storing and processing Customer Data), including, without limitation, Articles 25(1) and 26(1) of EU Directive 95/46/EC of 24 October 1995.

"Resolution" means a) when Thankful completes a response script to completion or b) when Thankful asks the end user a question and receives no reply within 7 days.

"Service" means Thankful’s SaaS helpdesk ticket AI service, accessible via http://www.thankful.ai and/or another Web site or IP address designated by Thankful, which Thankful provides to Customer under an Order Form, as further described at https://www.thankful.ai/product. "Service" also includes all components of Thankful’s SaaS helpdesk ticket AI service, all Content, all and all Thankful Technology.

"SOW" means Statement(s) of Work, Work Authorization(s) or other contract(s) under which Thankful provides its Professional Services.

"Specifications" means the specifications for the Service set forth in the Documentation.

"Subscription License Fees" means subscription license fees payable by Customer to Thankful for the Service.

"User(s)" means Customer’s customers, employees, representatives, consultants, contractors and agents who have been authorized by Customer to use the Service.

"Thankful Technology" means all of Thankful’s and its licensors’ proprietary technology that Thankful makes available to Customer as part of or in connection with the Service (including, without limitation, any and all software, hardware, products, processes, APIs, algorithms, user interfaces, trade secrets, know-how, techniques, designs and other tangible or intangible technical material or information).

"Training Data" means data that is an anonymous by-product of the processing of Customer Data, from which Customer Data cannot be identified through the inspection, analysis or further Processing of such data, and which is used by Thankful to further train and improve the Service and Content. Training Data includes patterns, coordinates, reference points and data, decontextualized anonymous data, dimensional statistics, density measurements and similar technical and statistical information that may result from the processing of Customer Data by Thankful.

EXHIBIT A

SUPPORT

This is Exhibit A to the Thankful Order Form (the "Order Form"). Capitalized terms not defined herein have the meaning indicated in the Order Form or in the Terms of Service.

A. SUPPORT TERMS

1. Support Services. Support Services consist of (a) Error Correction and Ticket Based Web Support provided to a single technical support contact concerning the use of the Service, and (b) Service updates that Thankful in its discretion makes generally available without additional charge.

2. Error Priority Levels. Thankful shall exercise commercially reasonable efforts to correct any Error reported by Customer in the Service, in accordance with the priority level reasonably assigned to such Error by Thankful.

Priority 1: Operation of the Service is critically affected (for example and without limitation, the Service is non responsive or unavailable and no customer implementable workaround is possible. Target response time: 30 minutes.
Priority 2: The Service is responding and functional but performance is degraded. Target response time: 1 Business Day.
Priority 3: Non-critical issue; no significant impact on performance of the Service. Target Response Time: 3 Business Days.

3. Exclusions. Thankful shall have no obligation to support: (i) Service problems not caused by an Error or otherwise caused by Customer’s negligence, abuse or misapplication of the Service, use of the Service other than as specified in the Thankful’s documentation or other causes beyond the control of Thankful; or (ii) the Service is used with any software or hardware that is not supported by Thankful. Thankful shall have no liability for any changes in Customer’s software or hardware that may be necessary to use the Service due to a Workaround.

1. Definitions.

"Business Day" means 8 a.m. – 6 p.m. Pacific Time, Monday through Friday.

"Error" means an error in the Service which significantly degrades the Service as compared to Thankful’s published performance specifications contained in the user documentation.

"Error Correction" means the use of reasonable commercial efforts to correct Errors.

"Fix" means the repair of the Service to remedy an Error.

"Support Services" means Thankful support services as described in Section A (Support Terms) of this Exhibit A.

"Ticket Based Web Support" means technical support assistance provided by Thankful to the Technical Support Contact during the Business Day concerning the Service.

"Workaround" means a change in the procedures followed or data supplied by Customer to avoid an Error without substantially impairing Customer’s use of the Service.

"Response Time" means the time elapsed between when a request is submitted and when Thankful acknowledges receipt of the request.

1. THESE TERMS AND CONDITIONS CONSTITUTE A SERVICE CONTRACT AND NOT A PRODUCT WARRANTY. ALL PRODUCTS AND MATERIALS RELATED THERETO ARE SUBJECT EXCLUSIVELY TO THE WARRANTIES SET FORTH IN THE AGREEMENT. THIS ATTACHMENT IS AN ADDITIONAL PART OF THE AGREEMENT AND DOES NOT CHANGE OR SUPERSEDE ANY TERM OF THE AGREEMENT EXCEPT TO THE EXTENT UNAMBIGUOUSLY CONTRARY THERETO.

B. SUPPORT PLANS

Support Plans	Included
Email - Based Global Support	X
Access to Thankful Community / Documentation	X
Account Team	X
Support Hours (10 hours x 5 business days)	X
Monthly Best-Practice Consultations	X
Basic Set Up Assistance	X

Thankful does not guarantee resolution times, and a resolution may consist of a fix, workaround or other solution Thankful deems reasonable.
If Customer uses a custom or unsupported plug-in, module, or custom code, Thankful may ask Customer to remove the unsupported plug-in, module, or code while attempting to resolve the issue. If the problem is fixed when the unsupported plug-in, module, or custom code is removed, Thankful may consider the issue resolved.
Thankful may close support tickets if they are outside the scope of the Support Services or if multiple attempts to contact Customer with regard to a support ticket have gone unanswered. If a support ticket is closed due to lack of response, Customer may request that it be reopened.

Upgrade/Downgrade of Severity Level

If, during the support inquiry process, the support issue either warrants assignment of a higher severity level than currently assigned or no longer warrants the severity level currently assigned to the issue based on its current impact on the operation of the Product, then Thankful will upgrade or downgrade the severity level of the issue according to the severity level that most appropriately reflects the issue’s current impact on the Product.

THANKFUL MASTER SUBSCRIPTION AGREEMENT