End User License Agreement

This End User License Agreement (this “Agreement”) describes the terms and conditions by which you may access and/or use the automation platform-as-a-service and related offerings (“Services”), provided by OPNOVA, Inc. a Delaware corporation (“Company”) pursuant to a separate agreement between you and Company or between you and an authorized third-party reseller of the Services (each, an “Ordering Document”). By accessing and/or using the Services, or by clicking a button or checking a box marked “I Agree” (or something similar), you signify that you have read, understood, and agree to be bound by this Agreement. Company reserves the right to modify this Agreement, and will provide notice of material changes as described below. This Agreement applies to all visitors and users of the Service, and to all others who access the Service (collectively, “End Users,” and, as applicable to you, “you,” or “yours”). End User and Company are each a “party” and collectively, the “parties”. 

1. ACCESS TO SERVICES

1.1. Eligibility. Agreement is a contract between you and Company. You must read and agree to this Agreement before using the Services. If you do not agree, you may not use the Services. You may use the Services only if you have the right use the Services pursuant to a valid Ordering Document, can form a legally binding contract with Company, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules, and regulations. An individual may access and/or use the Services on behalf of a company or other entity, such as that individual’s employer (such entity, an “Organization”). In such cases, notwithstanding anything to the contrary herein: (a) this Agreement is an agreement between (i) Company and such individual and (ii) Company and that Organization; (b) “End User” or “you,” as used in this Agreement in the context of a license grant, assignment, restriction, obligation, acknowledgment, representation, warranty, or covenant, or in any similar context, means (i) such individual and (ii) “the Organization, on behalf of the Organization and its subsidiaries and affiliates, and its and their respective directors, officers, employees, contractors, agents, and other representatives who access and/or use the Services (collectively, “Org Users”)”; and “your” has the corresponding meanings; (c) such individual represents and warrants to having the authority to bind that Organization to this Agreement (and, in the absence of such authority, such individual may not access, nor use, the Services); (d) such individual’s acceptance of this Agreement will bind that Organization to this Agreement; (e) Company may disclose information regarding such individual and such individual’s access to and use of the Services to that Organization; (f) such individual’s right to access and use the Services may be suspended or terminated if such individual ceases to be associated with, or ceases to use an email address associated with or provisioned by, that Organization; (g) that Organization will make all Org Users aware of this Agreement’s provisions, as applicable to such Org Users, and will cause each Org User to comply with such provisions; and (h) that Organization will be solely responsible and liable for all acts and omissions of the Org Users, and any act or omission by any Org User that would constitute a breach of this Agreement had it been taken by that Organization will be deemed a breach of this Agreement by that Organization. 

1.2. Access to Services. Company grants End User the right to access and use the Services on a non-exclusive and non-transferrable basis, solely for its internal business purposes, and only in accordance with the terms and conditions of this Agreement and any technical documentation provided by Company for such Services. To the extent Company provides End User with any downloadable software, agents, SDKs, APIs, or other code in connection with the Services (the “Company Software”), the Services include the Company Software and Company grants to End User a non-exclusive, non-transferable, non-sublicensable, limited right and license to use the Company Software solely as reasonably necessary for End User’s use of the Services in accordance with this Agreement. For clarity, the Services may be provided on a single tenant software-as-a-service basis (the “Single-Tenant SaaS Deployment”) or on an on-premises basis deployed on End User’s premises (the “On-Premises Deployment”).

1.3. Users. If permitted by Company, certain Org Users may access the Services on behalf of the Organization. Use of the Services by End User in the aggregate must be within the restrictions set forth in the applicable Ordering Document (if any). If End User is given passwords to access Services on Company’s systems, the Organization shall require that all Org Users keep user ID and password information strictly confidential and not share such information with any unauthorized person. End User shall be responsible for any and all actions taken using End User’s accounts and passwords. End User agrees to immediately notify Company of any unauthorized use, or suspected unauthorized use, of, or any other breach of security with respect to, End User’s accounts and passwords. 

1.4. General Restrictions. End User (including any Org User) shall not, and shall not allow any third party to: (a) sell, rent, lease or use any Services for time sharing purposes; (b) use any Services or Output (defined below) to help develop, or help provide to any third party, any product or service similar to or competitive with any Services; (c) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code of any Service, including any Company Software; (d) copy, modify or create derivative works from any Service; (e) remove or obscure any copyright or proprietary or other notice contained in any Service; (f) propagate any virus, Trojan horse, or other malware or programming routine intended to damage any system or data; (g) access or use any Services in a manner intended to circumvent or exceed service account limitations or requirements; (h) use any Services in a manner that violates any applicable law, regulation, or legal requirement or obligation; (i) use any Services in violation of any third-party rights of privacy or intellectual property rights; (j) use or permit the use of any tools in order to probe, scan or attempt to penetrate or benchmark any Services; (k) impose an unreasonable or disproportionately large load on Company’s infrastructure, or detrimentally interfere with, intercept, or expropriate any system, data, or information; (l) post, upload, transmit or provide any End User Data (as defined below) or otherwise use the Services in a manner that Company reasonably deems to be unlawful, harmful, abusive or otherwise objectionable; (m) impersonate another person or misrepresent any affiliation with a person or entity, hide or attempt to hide ones identity, or otherwise use the Services for any invasive or fraudulent purpose, or (n) use the Services except as expressly permitted by this Agreement.

1.5. End User Equipment. End User shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, hardware, servers, laptops, desktops, virtual machines, cloud services, infrastructure software, operating systems, and the like (collectively, “Equipment”). End User shall also be responsible for maintaining the security of the Equipment and files, and for all uses of the Equipment with or without End User’s knowledge or consent.

1.6. Reseller Services. This Section 1.6 applies only if End User orders the Services from an authorized third-party reseller (“Reseller”) under an Ordering Document. Company may share End User Data (defined below) with Reseller. At End User’s discretion, Reseller may access End User’s account. As between Company and End User, End User is solely responsible for (a) any access by Reseller to End User’s account and (b) defining in the Ordering Document any rights or obligations as between Reseller and End User with respect to the Services. Company will not have any liability arising out of a Reseller’s (i) suspension or termination of End User’s access to the Services; (ii) access to and visibility of End User’s account and End User Data; or (iii) offering or provisioning of Reseller’s or third-party products or services. End User acknowledges and agrees that Reseller may disclose End User personal data to Company as reasonably required for Reseller to handle any support issues that End User escalates to or via Reseller.

2. END USER OBLIGATIONS; END USER CONTENT

2.1. Generally. “End User Data” means information, data, and other content, in any form or medium, that is downloaded, or otherwise received, directly or indirectly (including via a third-party provider), from End User (including from an Org User on the Organization’s behalf) by or through the Services, or provided by End User to Company to input into the Services or to otherwise facilitate the Services. End User represents and warrants to Company that End User’s use of the Services and all End User Data is and will be at all times compliant with End User’s privacy policies, contractual agreements with third parties, and all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data privacy, international communications, and the exportation of technical or personal data. End User is solely responsible for the accuracy, content and legality of all End User Data. End User represents and warrants to Company that End User has sufficient rights in the End User Data to grant the rights granted to Company in Section 2.3 below and that the End User Data does not infringe or otherwise violate the rights of any third party.

2.2. Highly Sensitive Information. End User may use the On-Premises Deployment to store or process Highly Sensitive Information; provided that End User ensures such storage or processing complies with all applicable laws. End User shall not use the Single-Tenant SaaS Deployment to store or process Highly Sensitive Information unless otherwise authorized by Company in writing (email to suffice). “Highly Sensitive Information” means: (a) “special categories of personal data,” “sensitive personal information,” or “Sensitive Personal Data,” as defined under applicable law, including European Union Regulation 2016/679, Article 9(1) or any successor legislation; (b) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”); or (c) other information subject to additional protections or regulation under specific laws such as the Children’s Online Privacy Protection Act or Gramm-Leach-Bliley Act (or related rules or regulations).

2.3. Rights in End User Data. As between the parties, End User shall retain all right, title and interest (including any and all intellectual property rights) in and to the End User Data. End User hereby grants to Company a non-exclusive, worldwide, irrevocable, transferable, sublicensable (through multiple tiers), fully paid-up, royalty-free right and license to use, copy store, transmit, modify, and display the End User Data in order to (a) provide the Services to End User, and (b) perform such other actions as authorized or instructed by End User.

2.4. Output. End User and its Org Users may receive tangible output and reports via the functionality of the Services based on the End User Data (the “Output”). Subject to End User’s compliance with the Agreement, End User may use the Output for any lawful purpose (except as described below), on a royalty-free basis, provided that End User acknowledges and agrees: (i) that End User’s use of the Output does not transfer to End User ownership of any intellectual property rights in the Services; and (ii) that End User is responsible for all use of the Output and for evaluating the Output for accuracy and appropriateness for End User’s use case, including by utilizing human review as appropriate. Additionally, when using the Services to generate Output that directly impacts individuals in high-risk domains End User shall ensure that a qualified professional in that field reviews the content or decision prior to dissemination or finalization. End User shall not represent that Output was human-generated or use the Output to train End User’s own machine learning models.

2.5. Third Party Service Providers. End User may be able to access and use certain third-party services or products through or with its use of the Services (“Third-Party Services”). Third-Party Services include large-scale, pre-trained Large Language Models (LLMs) (such as Claude) and other services used by the End User at its own discretion, such as by reading or writing data to or from such Third-Party Services. For purposes of this Agreement, such Third-Party Services are subject to their own terms and conditions. To the extent there is a conflict between the terms and conditions applicable to any such Third-Party Services and this Agreement, the Third-Party Services terms and conditions shall control. Additionally, all or some portions of the Services may be subject to additional and/or separate terms and conditions, including but not limited to open-source software licenses and other third-party software license terms and conditions (“Third-Party Components”). To the extent there is a conflict between the terms and conditions applicable to any such Third-Party Components and this Agreement, the Third-Party Components terms and conditions shall control. Notwithstanding anything in this Agreement to the contrary, ALL THIRD-PARTY SERVICES AND THIRD-PARTY COMPONENTS ARE MADE AVAILABLE ON AN “AS IS” BASIS WITHOUT WARRANTY OF ANY KIND. IF END USER USES ANY THIRD-PARTY SERVICES, COMPANY WILL NOT BE RESPONSIBLE FOR ANY ACT OR OMISSION OF ANY PROVIDER OF SUCH THIRD-PARTY SERVICES. COMPANY DOES NOT WARRANT OR PROVIDE DIRECT SUPPORT FOR ANY THIRD-PARTY SERVICES. END USER ACKNOWLEDGES AND AGREES THAT COMPANY WILL HAVE NO RESPONSIBILITY OR LIABILITY FOR THE ACTS OR OMISSIONS OF ANY ORG USERS IN CONNECTION WITH ANY THIRD-PARTY SERVICES.

3. OWNERSHIP

3.1. Ownership. End User acknowledges that no intellectual property rights are assigned or transferred to End User hereunder. End User is obtaining only a limited right to access and use the Services set forth on the applicable Ordering Document in accordance with this Agreement. End User agrees that Company or its suppliers own and retain all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights) in and to (a) the Services, the Company Software, and any and all related and underlying technology, documentation, and other information, (b) any intellectual property it develops hereunder, and (c) any derivatives of or improvements, enhancements or modifications to the foregoing (a) and (b) (individually and collectively, “Company Technology”).

3.2. Feedback. In the event End User provides Company with any suggestions, ideas, improvements or other feedback with respect to any aspect of the Services (“Feedback”), End User hereby assigns to the Company all right, title and interest in and to the Feedback, including all intellectual property rights therein, and acknowledges that Company shall own such Feedback. 

3.3. De-identified Data. Company may create and use de-identified data related to End User’s use of the Services in order to improve Company’s products and services, to develop new products and services, and for its other business purposes (and such de-identified data will be owned by Company). 

4. TERMINATION

4.1. Term, Suspension, and Termination. This Agreement and the license granted hereunder shall remain in effect until terminated as set forth herein (the “Term”). Either party may terminate this Agreement, for any reason or no reason, upon thirty (30) day written notice. Company also reserves the right to suspend End User’s or any Org User’s access to the Services immediately without liability, if (a) End User’s or such Org User’s use of the Services (i) materially violates this Agreement; (ii) is improper or substantially exceeds or differs from normal use by other users; (iii) raises suspicion of fraud, misuse, security concern, illegal activity, or unauthorized access issues; (b) End User or any Org User uses a Service to store or process Highly Sensitive Information in breach of Section 2.2; or (c) to protect the integrity or availability of the Services or Company’s systems.

4.2. Effect of Termination. Upon the expiration or termination of this Agreement, End User shall immediately cease any and all use of and access to the Services (including any and all related Company Technology) and remove or uninstall and cease to use all copies of the Company Software. The following Sections shall survive any expiration or termination of this Agreement: 1.4, 1.6, 2, 3, 4.2, 5 through 12 (inclusive).

4.3. End User Data. End User acknowledges that if End User or an Org User deletes End User Data from the Services, such End User Data may still reside in Company’s systems, applications, databases and servers (including, without limitation, as backups and/or archives) for a period of time. End User acknowledges that the foregoing actions may have an adverse impact on End User’s use of the Services (and Company is not liable with respect thereto). 

5. DISCLAIMER

WITHOUT LIMITING ANY WARRANTIES PROVIDED BY THE APPLICABLE COUNTERPARTY IN THE ORDERING DOCUMENT, ALL SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. COMPANY AND ITS SUPPLIERS EACH EXPRESSLY DISCLAIM ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES IT MAKE ANY REPRESENTATION OR WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES, OR AS TO THE ACCURACY, RELIABILITY, OF ANY OUTPUT. END USER ACKNOWLEDGES AND AGREES THAT (A) BY USING THE SERVICES, IT IS NOT ASSURED OF ANY PARTICULAR PROFITS, RESULTS OR SUCCESS, AND (B) END USER ASSUMES SOLE RESPONSIBILITY FOR END USER’S USE OF THE SERVICE AND ASSOCIATED OUTPUT AND THE RESULTS OBTAINED FROM THAT USE.
DUE TO THE NATURE OF MACHINE LEARNING, THE OUTPUT MAY NOT BE UNIQUE ACROSS USERS, AND THE SERVICES MAY GENERATE THE SAME OR SIMILAR OUTPUT FOR OTHER USERS. USE OF THE SERVICES MAY RESULT IN INCORRECT OUTPUT THAT DOES NOT ACCURATELY REFLECT REALITY. END USER MUST EVALUATE THE ACCURACY OF ANY OUTPUT AS APPROPRIATE FOR END USER’S USE CASE, INCLUDING BY USING HUMAN REVIEW OF THE OUTPUT. END USER UNDERSTANDS AND AGREES THAT THE OUTPUT MAY CONTAIN “HALLUCINATIONS” AND MAY BE INACCURATE, OBJECTIONABLE, INAPPROPRIATE, OR OTHERWISE UNSUITED TO END USER’S PURPOSE, AND END USER AGREES THAT THE OUTPUT IS PROVIDED “AS IS” AND COMPANY SHALL NOT BE LIABLE FOR ANY DAMAGES THAT END USER OR ANY THIRD PARTY ALLEGES TO INCUR AS A RESULT OF OR RELATING TO ANY OUTPUT OR OTHER CONTENT GENERATED BY OR ACCESSED ON OR THROUGH THE SERVICES.

6. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY LAW: (A) IN NO EVENT WILL COMPANY OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE, UNDER ANY LEGAL OR EQUITABLE THEORY OF LAW, WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING LOSS OF PROFITS, BUSINESS, CONTRACTS, REVENUE, GOODWILL, PRODUCTION, USE, OR DATA, OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THE SERVICES OR ANY PORTION THEREOF, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE; AND (B) COMPANY’S AGGREGATE LIABILITY SHALL IN NO EVENT EXCEED THE AMOUNT END USER PAID TO COMPANY UNDER THE APPLICABLE ORDERING DOCUMENT DURING THE TWELVE (12) MONTH PERIOD PRIOR TO WHEN THE CLAIM AROSE.

7. INDEMNIFICATION

End User shall indemnify, defend, and hold harmless Company from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim arising from or relating to (a) End User’s or any Org User’s violation of any laws, regulations, or rights relating to End User Data or Output (including, without limitation, privacy laws, regulations, or rights), or (b) End User’s or any Org User’s breach of Sections 1.4 or 2, (c) any action taken (or not taken) by End User or any Org User based upon use of the Services. 

8. CONFIDENTIAL INFORMATION

8.1. “Confidential Information” means information disclosed by one party to the other that is marked as confidential or proprietary or that ought reasonably to be understood as confidential or proprietary. All Company Technology, performance information relating to the Services, the technology, data, drawings, benchmark tests, specifications, trade secrets, object code and source code of the Company Technology, and any other proprietary information supplied to you by Company, including all items defined as “confidential information” by Company, shall be deemed Confidential Information of Company without any marking or further designation. Confidential Information does not include information that the recipient already lawfully knew, that becomes public through no fault of the recipient, that was independently developed by the recipient without any reference to or use of Confidential Information, or that was rightfully obtained by the recipient from a third party.

8.2. Obligations. The recipient agrees not to disclose Confidential Information except to its employees, contractors and agents who need to know it and have agreed in writing to keep it confidential. Only those parties may use the Confidential Information, and only to exercise the recipient’s rights and fulfill its obligations under this Agreement, while using at least a reasonable degree of care to protect it. The recipient may also disclose Confidential Information to the extent required by law after providing reasonable notice to the discloser and cooperating to obtain confidential treatment. Unauthorized disclosure of Confidential Information may cause harm not compensable by damages, and the disclosing party may seek injunctive or equitable relief in a court of competent jurisdiction, without posting a bond, to protect its Confidential Information. 

9. EXPORT COMPLIANCE 

You agree to comply fully with all applicable export and re-export control and trade and economic sanctions laws, including the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC), and the International Traffic in Arms Regulations maintained by the U.S. State Department. Neither End User, nor any of its subsidiaries or any person acting on its behalf or owning 50% or more of its equity securities or other equivalent voting interests, is (a) a person on the List of Specially Designated Nationals and Blocked Persons or any other list of sanctioned persons administered by OFAC or any other governmental entity, or (b) a national or resident of, or a segment of the government of, any country or territory for which the United States has embargoed goods or imposed trade sanctions.

10. GOVERNING LAW; JURISDICTION AND VENUE 

This Agreement shall be governed by the laws of the State of California and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court in San Francisco County), any dispute arising under this Agreement shall be finally settled in binding arbitration. The Judicial Arbitration and Mediation Service, Inc. (“JAMS”) will administer the arbitration in accordance with its Comprehensive Arbitration Rules and Procedures (though to the extent JAMS’ Expedited Arbitration Procedures are available, they will apply), and the arbitration will be held in San Francisco, California. Subject to the foregoing provisions of this Section 10, the jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in San Francisco County, California and both parties hereby submit to the personal jurisdiction of such courts.

11. NOTIFICATIONS AND CHANGES TO THE EULA

Company may provide notifications, whether such notifications are required by applicable law or are for marketing or other business-related purposes, to you via email notice or written or hard copy notice, or through posting of such notice on Company website or as permitted through the Services, as Company determines, in Company’s sole discretion. Company reserves the right to determine the form and means of providing notifications to you, provided that you may opt out of certain means of notification, as required under applicable law. Company is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide Company. Company may, in Company’s sole discretion, modify or update this Agreement from time to time. When Company changes this Agreement in a material manner, Company will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to this Agreement. This Agreement applies to and governs your access to and use of the Services effective as of the start of your access to the Services, even if such access began before publication of this Agreement. Your continued use of the Services after any change to this Agreement constitutes your acceptance of the new Agreement.

12. GENERAL TERMS

The terms “for example,” “including” and/or “includes” shall be deemed to mean “for example, but not limited to,” “including, but not limited to” or “includes, but is not limited to,” as applicable. This Agreement is not assignable or transferable by End User except with Company’s prior written consent. Company may transfer or assign this Agreement, or any of its rights and obligations under this Agreement, with or without End User’s consent. The terms and conditions of this Agreement will inure to the benefit of, and be binding upon, the respective permitted successors and assigns of the parties. There are no third-party beneficiaries to this Agreement. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications, relating to the subject matter of this Agreement.