SMALLEST MASTER SERVICES AGREEMENT

This Master Services Agreement (this “Agreement”), effective as of the signing date of the Order Form(the “Effective Date”), between Smallest Inc. (“Smallest”) and the “Customer” as specified in the Order Form, which is separately signed and which includes a commercial agreement with the Customer.  Smallest and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”. 

RECITALS

1. Smallest develops and operates infrastructure technologies, including text-to-speech (TTS) and speech-to-text (STT) systems, speech-to-speech (S2S) systems, and provides access and related maintenance and technical support to its customers; and 

2. Customer desires to access and use the Product, and Smallest is willing to provide such access, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. DEFINITIONS.

   1. “Aggregate Data” means any data that is derived or aggregated in deidentified form from (i) any Customer Materials; or (ii) Customer’s and/or its Authorized Users’ Use of the Product, including, without limitation, any usage data or trends with respect to the Product.

   2. “Applicable Law” means with respect to a Party, any law, regulation or rule enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any governmental body in the United States, including applicable to a Party’s processing of “personal data” and “personal information” (as such terms are defined under applicable laws) under the Agreement. 

   3. “Authorized User” means an employee or contractor of Customer authorized to Use the Product.

   4. “Smallest IP” means the Product, the underlying software provided in conjunction with the Product, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Product, any Professional Services, and Documentation and Aggregate Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.

   5. “Customer Cloud Environment” means the Customer infrastructure or Customer-controlled cloud services environment provided by a supported third-party cloud services provider. 

   6. “Customer Materials” means all information, data, content and other materials, in any form or medium, including voice recordings, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the Product or to Smallest in connection with Customer’s Use of the Product, but excluding, for clarity, Aggregate Data and any other information, data, data models, content or materials owned or controlled by Smallest and made available through or in connection with the Product. 

   7. “Documentation” means the operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by Smallest to Customer (including any revised versions thereof) relating to the Product, which may be updated from time to time upon notice to Customer.

   8. “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.

   9. “Licensed Volume” means the limits, volume or other measurement or conditions of permitted Use for the applicable Product as set forth in the applicable Order Form, including any limits on the number of Authorized Users permitted to Use the Product based on Customer’s subscription tier.

   10. “Order Form” means a (i) mutually executed order form or other mutually agreed upon ordering document; (ii) purchase order issued by Customer and accepted by Smallest in writing; or (iii) quote issued by Smallest and accepted by Customer, in each case which references this Agreement and sets forth the applicable Product and/or Professional Services to be provided by Smallest.

   11. “Person” means any individual, corporation, partnership, trust, limited liability company, association, governmental authority or other entity.

   12. “Professional Services” means the implementation and/or other professional services, if any, to be provided by Smallest to Customer as set forth in the relevant Order Form.

   13. “Product” means the speech infrastructure technologies, including text-to-speech (TTS) and speech-to-text (STT) AI systems which allow users to create AI-based voice clones, text to voice, and AI agents that make bulk outbound calls and receive bulk inbound calls using a particular number by using voice cloning services as more particularly described or identified in the applicable Order Form. A Product distributed by Smallest for installation onto the Customer Cloud Environment is an “Local Product” and a Product hosted by Smallest via SaaS is a “Hosted Product”.

   14. “Telemarketing Laws” means the Telephone Consumer Protection Act, 47 U.S.C. § 227, the rules and regulations of the Federal Communications Commission promulgated thereunder (including 47 C.F.R. § 64.1200 et seq.), the Telemarketing Sales Rule (16 C.F.R. Part 310), all analogous state and local telemarketing, autodialing, robocall and do-not-call statutes, regulations and rules, and all amendments, orders and binding interpretive guidance issued under any of the foregoing.

   15. “Use” means to use and/or access the Product in accordance with this Agreement and the Documentation.

2. PRODUCT ACCESS AND USE.

   1. License.  Smallest will provide Customer with access to the Product and related services as more particularly described in the applicable Order Form.

      1. Local Product.  Subject to the terms and conditions of this Agreement, Smallest hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section 13(f)) right, during the Term, to: (i) install the Local Product on the Customer Cloud Environment; and (ii) Use the Local Product on the Customer Cloud Environment, in each case solely for Customer’s internal business purposes, unless explicitly stated, in accordance with, and subject to, the Licensed Volume.

      2. Hosted Product.  Subject to the terms and conditions of this Agreement, Smallest hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section 13(f)) right to Use the Hosted Product during the Term, solely for Customer’s internal business purposes in accordance with, and subject to, the Licensed Volume.

   2. Use Restrictions.  Customer will not at any time and will not permit any Person (including, without limitation, Authorized Users) to, directly or indirectly: (i) use the Product in any manner beyond the scope of rights expressly granted in this Agreement; (ii) modify or create derivative works of the Product or Documentation, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Product, in whole or in part; (iv) frame, mirror, sell, resell, rent or lease use of the Product to any other Person, or otherwise allow any Person to use the Product for any purpose other than for the benefit of Customer in accordance with this Agreement; (v) use the Product or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person (including right of publicity), or that violates any Applicable Law (including, without limitation, the Telemarketing Laws) or industry standards or any third-party policies of Smallest and its vendors (including, without limitation, all of the applicable guidelines published by the CTIA (Cellular Telecommunications Industry Association), the Mobile Marketing Association, NENA (National Emergency Number Association), or any other applicable accepted industry associations, carrier guidelines or other similar or analogous industry standards, third party policies or requirements in any jurisdiction) (taking into account that the Product enables the use of an “artificial or prerecorded voice” to make phone calls); (vi) interfere with, or disrupt the integrity or performance of, the Product, or any data or content contained therein or transmitted thereby; (vii) access or search the Product (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Product features provided by Smallest for use expressly for such purposes; or (viii) use the Product, Documentation, Output (including any voice clone, voice model, audio sample, transcript or other generated content) or any other Smallest Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, to train or improve any AI or machine learning model, voice clone library, or competing service, or to develop, commercialize, license, or sell any product, service, or technology that competes with, or could directly or indirectly compete with, the Product.

   3. Authorized Users.  Customer will not allow any Person other than Authorized Users to Use the Product.  Customer ensures each Authorized User complies with all applicable terms and conditions of this Agreement including, without limitation, with Customer’s obligations and the restrictions set forth herein, and Customer is responsible for acts or omissions by Authorized Users in connection with their Use of the Product.  Smallest may suspend or terminate any Authorized User’s access to the Product upon notice to Customer in the event that Smallest reasonably determines that such Authorized User violated this Agreement.  Customer is responsible for all acts or omissions by its Authorized Users in connection with their Use of the Product.  Customer will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Product in accordance with customary security protocols, and will promptly notify Smallest if Customer knows or reasonably suspects that any user name and/or password has been compromised.  Each account for the Product may only be accessed and used by the specific Authorized User for whom such account is created.

   4. Third-Party Services.  Certain features and functionalities within the Product may allow Customer and its Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, “Third-Party Services”) through the Product.  Smallest does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Product or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto.  Customer is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Customer to use the Third-Party Services in connection with the Product.

   5. Reservation of Rights.  Subject to the limited rights expressly granted hereunder, Smallest reserves and, as between the Parties will solely own, the Smallest IP and all rights, title and interest in and to the Smallest IP.  No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein. 

   6. Feedback.  From time to time Customer or its employees, contractors, or representatives may provide Smallest with suggestions, comments, feedback or the like with regard to the Product (collectively, “Feedback”).  Customer hereby grants Smallest a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Smallest’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Product.

   7. Suspension.  In addition to Smallest’s other rights and remedies, Smallest may suspend, limit or restrict Customer’s or any Authorized User’s access to or Use of all or any portion of the Product, with or without notice (and without liability to Customer), if Smallest reasonably determines that: (i) there is a threat to the security, integrity or availability of the Product or Smallest’s systems; (ii) Customer’s or any Authorized User’s Use violates Section 2(b), the Documentation, any Applicable Law (including Telemarketing Laws), or any third-party policy, carrier guideline or industry standard referenced herein; (iii) suspension is required to comply with any Applicable Law, court order, or governmental request; or (iv) Customer has failed to make any payment when due and such failure has not been cured within ten (10) days following notice.  Smallest will use commercially reasonable efforts to notify Customer of any such suspension and to limit the scope and duration of the suspension as reasonably necessary to address the underlying issue.  Suspension under this Section 2(g) will not relieve Customer of its obligation to pay Fees and will not constitute a breach of this Agreement by Smallest.

   8. Verification.  To verify Customer’s compliance with this Agreement (including the Licensed Volume and the restrictions in this Section 2), Customer will: (i) maintain accurate records of its and its Authorized Users’ Use of the Product (including, with respect to the Local Product, deployment instances, environments, concurrency, and consumption against the Licensed Volume) for at least the duration of the Term and one (1) year thereafter; (ii) promptly respond to Smallest’s reasonable requests for self-reported usage data; and (iii) upon at least ten (10) business days’ prior written notice and not more than once in any twelve (12)-month period (except in the case of suspected breach), permit Smallest (or an independent third-party auditor bound by reasonable confidentiality obligations) to audit the foregoing records and Customer’s Use of the Local Product during normal business hours, in a manner that does not unreasonably interfere with Customer’s operations.  If any audit reveals Use in excess of the Licensed Volume or other material non-compliance, Customer will pay (A) the additional Fees for such excess Use at Smallest’s then-current rates, and (B) if the under-reported amount exceeds five percent (5%), Smallest’s reasonable costs of conducting the audit.

3. FEES AND PAYMENT.

   1. Fees.  Customer will pay Smallest the non-refundable fees set forth in the relevant Order Form in accordance with the terms therein (“Fees”) and without offset or deduction.  Smallest reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then-current Renewal Term, upon sixty (60) days’ prior notice to Customer (which may be sent by email).  Except as otherwise provided in the relevant Order Form, Smallest will issue invoices to Customer during the Term, and Customer will pay all amounts set forth on any such invoice no later than thirty (30) days after the date of such invoice unless otherwise stated in the Order Form.  

   2. Payments.  Payments due to Smallest under this Agreement must be made in the currency stated on the Order Form by check, ACH or wire transfer of immediately available funds to an account designated by Smallest or such other payment method mutually agreed by the Parties.  All payments are non-refundable, and neither Party will have the right to set off, discount, or otherwise reduce or refuse to pay any amounts due to the other Party under this Agreement.  If Customer fails to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by Applicable Law, and Smallest may suspend Services until all payments are made in full.  Customer will reimburse Smallest for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest.

   3. Taxes.  Customer is responsible for all sales, use, ad valorem, and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Customer to Smallest hereunder, other than any taxes imposed on Smallest’s income.  Without limiting the foregoing, in the event that Customer is required to deduct or withhold any taxes from the amounts payable to Smallest hereunder, Customer will pay an additional amount, so that Smallest receives the amounts due to it hereunder in full, as if there were no withholding or deduction.

4. CONFIDENTIAL INFORMATION.

   1. Definitions.  As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure.  For clarity, the Product and the Documentation will be deemed Confidential Information of Smallest.  However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party.  

   2. Obligations and Permitted Disclosures.  The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that Smallest may use and modify Confidential Information of Customer in deidentified form for purposes of developing and deriving Aggregate Data.  The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure. 

   3. Duration.  Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under Applicable Law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under Applicable Law.

   4. Disclosure for Due Diligence.  The terms and conditions of this Agreement will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes. 

5. MAINTENANCE, SUPPORT AND SERVICE LEVELS.

   1. Maintenance.  Smallest will provide ongoing maintenance and model updates for the Product in accordance with the annual maintenance contract set forth in Exhibit A. 

   2. Support.  Smallest will provide Customer with reasonable technical support for the Product in accordance with the support terms set forth in Exhibit B.

   3. Service Levels.  Subject to the terms and conditions of this Agreement, Smallest will use commercially reasonable efforts to make the Product available in accordance with the service levels set forth in Exhibit B.  Customer acknowledges and agrees that the service levels are performance targets only and any failure of Smallest to meet any service level will not result in any breach of this Agreement or any payment or liability of Smallest to Customer.

6. CUSTOMER MATERIALS AND DATA.

   1. Ownership.  Smallest acknowledges that, as between Customer and Smallest and except as set forth in Section 6(b), Customer owns and retains all right, title, and interest in and to all Customer Materials.

   2. Input and Output.  The Product will generate automated responses or suggestions which may include texts, audio, or other content (“Output”) in response to Customer Materials, including voice recordings (“Input”).  The Input and Output will be deemed Confidential Information of Customer.  As between the Parties, to the extent permitted by applicable law and subject to Section 6(a): (i) Customer owns all right, title and interest, including right of publicity, in and to Input; and (ii) subject to Customer’s compliance with this Agreement, Smallest assigns to Customer its right, title and interest in and to the Output generated by Customer’s Input. 

   3. License by Hosted Product Customers.  Customer hereby grants Smallest a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, and modify the Customer Materials solely for the purpose of hosting, operating, improving and providing the Hosted Product, Professional Services and Smallest’s other related products, services and technologies during the Term.

   4. Obligations For Local Product Customers.  Customer will (and will be solely responsible for the following): (i) obtain and maintain licenses for the Customer Cloud Environment, including pay all associated fees and charges due to the Customer Cloud Environment’s provider; (ii) ensure that the Customer Cloud Environment meets the minimum technical requirements for Use of the Local Product in accordance with the applicable Documentation; and (iii) ensure that the Customer Cloud Environment meets all applicable requirements for the Customer Materials that the Customer intends to submit into the Local Product (e.g., qualifying the Customer’s AWS Cloud instance for data subject to data protection laws applicable to Customer’s industry).  Smallest does not provide, and will not be responsible for, any aspect of the Customer Cloud Environment or for any errors or bugs in the Product caused in whole or in part by the Customer Cloud Environment.  

   5. Rights and Compliance.  Customer represents and warrants that (i) it has obtained and will obtain and continue to have, during the Term, all necessary rights, authority and licenses for the access to and use of the Customer Materials (including any voice recordings or personal data provided or otherwise collected pursuant to Customer’s privacy notice) as contemplated by this Agreement and (ii) it has provided, and will continue to provide, adequate notices, and that Customer has obtained, and will continue to obtain all necessary consents and authorizations from all persons contacted using the Product (including all persons whose telephone numbers are provided by Customer or on Customer’s behalf) prior to using the Product and to enable Smallest to provide the Product as permitted under this Agreement.  For any call or message constituting telemarketing, solicitation, or advertising under applicable Telemarketing Laws, Customer represents and warrants that it has obtained “prior express written consent” in compliance with the TCPA (47 U.S.C. § 227) and 47 C.F.R. § 64.1200(a)(2), including a signed written agreement that: (i) clearly authorizes the delivery of telemarketing messages using an automatic telephone dialing system or artificial/prerecorded voice; (ii) identifies the authorized caller; and (iii) conspicuously discloses that execution authorizes such messages and is not a condition of any purchase.  For purely informational (non-telemarketing) calls, Customer represents and warrants that it has obtained “prior express consent” as required under the TCPA and FCC rules.  Upon reasonable request by Smallest, Customer will provide evidence of such consents and authorizations.  Customer further represents and warrants that Customer has complied and will comply with all Applicable Laws, and that Smallest’s use of the Customer Materials (including receipt of any personal data contained therein) in accordance with this Agreement will not violate any Applicable Laws, or infringe or violate any intellectual property or other rights of any third party, or cause a breach of any agreement or obligations between Customer and any third-party.

7. REPRESENTATIONS AND WARRANTIES.  Each Party hereby represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party.

8. INDEMNIFICATION.

   1. Smallest Indemnification.  Subject to Section 8(b), Smallest will defend Customer against any claim, suit or proceeding brought by a third party (“Claims”) alleging that Customer’s Use of the Product infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless Customer against any damages and costs awarded against Customer or agreed in settlement by Smallest (including reasonable attorneys’ fees) resulting from such Claim. 

   2. Exclusions.  Smallest’s obligations under Section 8(a) will not apply if the underlying third-party Claim arises from or as a result of: (i) Customer’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Customer Materials; (iii) Customer’s failure to use any enhancements, modifications, or updates to the Product that have been provided by Smallest; (iv) modifications to the Product by anyone other than Smallest; (v) combinations of the Product with software, data or materials not provided by Smallest; or (vi) any errors or bugs in the Hosted Product caused in whole or in part by the Customer Cloud Environment. 

   3. IP Remedies.  If Smallest reasonably believes the Product (or any component thereof) could infringe any third party’s Intellectual Property Rights, Smallest may, at its sole option and expense use commercially reasonable efforts to: (i) modify or replace the Product, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Customer to continue Use.  If Smallest determines that neither alternative is commercially practicable, Smallest may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Customer.  In the event of any such termination, Smallest will refund to Customer a pro-rata portion of the Fees that have been paid for the unexpired portion.  The rights and remedies set forth in this Section 8 will constitute Customer’s sole and exclusive remedy for any infringement or misappropriation of Intellectual Property Rights in connection with the Product. 

   4. Customer Indemnification.  Customer will defend Smallest against Claims arising from (i) any Customer Materials, including, without limitation, (A) any Claim that the Customer Materials infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy (including right of publicity) or other rights; or (B) any Claim that the use, provision, transmission, display or storage of Customer Materials violates any applicable law, rule or regulation; (ii) any of Customer’s products or services; (iii) Use of the Product by Customer or its Authorized Users in a manner that is not in accordance with this Agreement or the Documentation, including, without limitation, any breach of the license restrictions in Section 2(b), or (iv) any actual or alleged violation of Telemarketing Laws arising from or related to calls placed or messages sent through the Product using Customer Materials, Customer-provided data, or at Customer’s direction or on Customer’s behalf, including, without limitation, any Claim alleging inadequate consent, improper use of an artificial or prerecorded voice, violation of do-not-call restrictions, or any related regulatory enforcement action and in each case, will indemnify and hold harmless Smallest against any damages, fines, penalties and costs awarded against Smallest, assessed or imposed against Smallest, or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim.

   5. Indemnification Procedures.  The Party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other Party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof.  The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services).  The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party. 

9. PROFESSIONAL SERVICES WARRANTY; DISCLAIMER.  Smallest warrants that Professional Services will be performed in a good and workmanlike manner consistent with applicable industry standards.  This warranty will be in effect for a period of thirty (30) days from the completion of any Professional Services.  As Customer’s sole and exclusive remedy and Smallest’s entire liability for any breach of the foregoing warranty, Smallest will promptly re-perform any Professional Services that fail to meet this limited warranty.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PRODUCT, PROFESSIONAL SERVICES AND OTHER SMALLEST IP ARE PROVIDED ON AN “AS IS” BASIS, AND SMALLEST MAKES NO WARRANTIES OR REPRESENTATIONS TO CUSTOMER, ITS AUTHORIZED USERS OR TO ANY OTHER PARTY REGARDING THE SMALLEST IP, THE PRODUCT, PROFESSIONAL SERVICES OR ANY OTHER SERVICES OR MATERIALS PROVIDED HEREUNDER.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SMALLEST HEREBY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.  WITHOUT LIMITING THE FOREGOING, SMALLEST HEREBY DISCLAIMS ANY WARRANTY THAT USE OF THE PRODUCT OR PROFESSIONAL SERVICES WILL BE ERROR-FREE, BUG-FREE OR UNINTERRUPTED.

Due to the nature of machine learning, Output may not be unique and the Product may generate the same or similar output for Smallest or a third party.  GIVEN THE PROBABILISTIC NATURE OF MACHINE LEARNING, THE PRODUCT MAY IN SOME SITUATIONS PRODUCE OUTPUT THAT IS INACCURATE, INCORRECT, OFFENSIVE OR OTHERWISE UNDESIRABLE.  THE ACCURACY, QUALITY AND COMPLIANCE WITH APPLICABLE LAW OF THE OUTPUT IS DEPENDENT UPON AND COMMENSURATE WITH THAT OF THE INPUT PROVIDED AND CUSTOMER’S COMPLIANCE WITH THIS AGREEMENT, AND NOTWITHSTANDING ANYTHING ELSE SET OUT HEREIN, SMALLEST WILL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO CUSTOMER OR ANY OTHER PERSON OR ENTITY FOR ANY LOSS OR DAMAGES RELATING TO OR ARISING FROM INPUT, THE OUTPUT OR THEIR USE.  Customer shall evaluate the content, nature, tone and accuracy of any Output as appropriate for the applicable use case, including by using human review of the Output.

10. LIMITATIONS OF LIABILITY.

    1. Exclusion of Damages.  EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILFUL MISCONDUCT BY EITHER PARTY, (III) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS, (IV) CUSTOMER’S BREACH OF ITS OBLIGATIONS UNDER SECTIONS 2(B) AND 6(E), OR (V) CUSTOMER’S OBLIGATIONS UNDER TELEMARKETING LAWS AND THE TELEMARKETING COMPLIANCE PROVISIONS SET FORTH IN THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SMALLEST IP OR THE PROVISION OF THE PRODUCT AND PROFESSIONAL SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

    2. Total Liability.  IN NO EVENT WILL SMALLEST’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS ARISING FROM ALL CLAIMS UNDER OR RELATED TO THIS AGREEMENT, THE SMALLEST IP OR THE PROVISION OF THE PRODUCT OR PROFESSIONAL SERVICES EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO SMALLEST IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE APPLICABLE CLAIM MADE UNDER OR RELATED TO THIS AGREEMENT, LESS ALL AMOUNTS PAID BY SMALLEST TO CUSTOMER FOR ALL PAST CLAIMS OF ANY KIND MADE UNDER OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT SMALLEST WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

    3. Basis of the Bargain.  THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 10 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN SMALLEST AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.

11. TERM AND TERMINATION.

    1. Term.  The initial term of this Agreement begins on the Effective Date and expires at the end of the Initial Term specified in the relevant Order Form (the “Initial Term”).  Following the Initial Term, this Agreement will automatically renew for additional periods of one (1) year (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either Party provides the other with at least thirty (30) days’ written notice of its intent not to renew this Agreement prior to the end of the then-current Term or explicitly stated in the order form.

    2. Termination.  Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.

    3. Survival.  This Section 11(c) and [Sections 1, 2(b), 2(c), 2(f), 3, 4, 6, 7, 8, 9, 10, 11(d) and 13] survive any termination or expiration of this Agreement. 

    4. Effect of Termination.  Upon expiration or termination of this Agreement: (i) the rights granted pursuant to Section 2(a) will terminate; and (ii) Customer will return or destroy, at Smallest’s sole option, all Smallest Confidential Information in its possession or control, including permanent removal of such Smallest Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Customer’s possession or under Customer’s control, and at Smallest’s request, certify in writing to Smallest that the Smallest Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted.  For clarity, in the event of expiration or termination of an Order Form for any Local Product or this Agreement, Local Product Customer will permanently remove such Local Product that is specific to such Order Form from the Customer Cloud Environment or any storage devices that are in Customer’s possession or under Customer’s control, and at Smallest’s request, certify in writing to Smallest that the Local Product has been deleted.  No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due or otherwise accrued through the effective date of expiration or termination, or entitle Customer to any refund.

12. PUBLICITY.  Subject to the provisions of Section 4, each Party shall have the right to publicly announce the existence of the business relationship between the Parties.  In addition, during the term of Customer’s Use of the Product, Smallest may use Customer’s name, trademarks, and logos (collectively, “Customer’s Marks”) on Smallest’s website and in its marketing materials to identify Customer as Smallest’s customer, and for the purpose of providing the Product and any Professional Services to Customer, provided that Smallest shall use commercially reasonable efforts to adhere to the usage guidelines furnished by Customer with respect to Customer’s Marks.

13. GENERAL.

    1. Entire Agreement.  This Agreement, including its exhibits, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter.  This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties. 

    2. Notices.  All notices required or permitted under this Agreement will be in writing (email being sufficient) and will be deemed to have been given when mailed by certified mail, overnight express, or sent by email, with receipt confirmed, will reference this Agreement, and will be sent to the relevant address set forth in the applicable Order Form.

    3. Waiver.  Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.  No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.

    4. Severability.  If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect. 

    5. Governing Law; Jurisdiction.  This Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction.  The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.  Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in Northern District of California and the Parties irrevocably consent to the personal jurisdiction and venue therein.

    6. Assignment.  Neither Party may assign or transfer this Agreement, by operation of law or otherwise, without the other Party’s prior written consent.  Any attempt to assign or transfer this Agreement without such consent will be void.  Notwithstanding the foregoing, either Party may assign or transfer this Agreement to a third party that succeeds to all or substantially all of the assigning Party’s business and assets relating to the subject matter of this Agreement, whether by sale, merger, operation of law or otherwise.  Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.

    7. Equitable Relief.  Each Party agrees that a breach or threatened breach by such Party of any of its obligations under Section 4 or, in the case of Customer, Section 2(b), would cause the other Party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other Party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy.  Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

    8. Force Majeure.  Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.

    9. Subcontracting.  Smallest may use subcontractors, and other third-party providers (“Subcontractors”) in connection with the performance of its own obligations hereunder as it deems appropriate; provided that Smallest remains responsible for the performance of each such Subcontractor.  Notwithstanding anything to the contrary in this Agreement, with respect to any third-party vendors including any hosting (e.g. AWS) or payment vendors (e.g. PayPal), Smallest will use commercially reasonable efforts to guard against any damages or issues arising in connection with such vendors, but will not be liable for the acts or omissions of such third-party vendors except to the extent that it has been finally adjudicated that such damages or issues are caused directly from the gross negligence or willful misconduct of Smallest.

    10. Export Regulation.  Customer affirms that it is not named on, owned by, or acting on behalf of any U.S. government denied-party list, and it agrees to comply fully with all relevant export control and sanctions laws and regulations of the United States (“Export Laws”) to ensure that neither the Product, software, any Customer Materials, nor any technical data related thereto is: (i) used, exported or re-exported directly or indirectly in violation of Export Laws; or (ii) used for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, or biological weapons proliferation, missile systems or technology, or restricted unmanned aerial vehicle applications.  Customer will complete all undertakings required by Export Laws, including obtaining any necessary export license or other governmental approval. 

    11. U.S. Government End Users.  The Product, software and Documentation were developed solely at private expense and are “commercial products”, “commercial items”, or “commercial computer software” as defined in the Federal Acquisition Regulation 2.101 and other relevant government procurement regulations including agency supplements.  Any use, duplication, or disclosure of the Product, software and Documentation by or on behalf of the U.S. government is subject to restrictions as set forth in this Agreement as consistent with federal law and regulations.  If these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Customer will immediately discontinue its use of the Product, software and Documentation.

    12. Relationship of the Parties.  The relationship between the Parties is that of independent contractors.  Nothing in this Agreement will be construed to establish any partnership, joint venture or agency relationship between the Parties.  Neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent.

    13. No Third-Party Beneficiaries.  No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the Parties and their respective successors and assigns.

    14. Counterparts.  This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

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EXHIBIT A

ANNUAL MAINTENANCE CONTRACT

Additional Terms: As part of its maintenance and support commitment, Smallest will provide updated model images on a quarterly basis.  Customer will coordinate with Smallest’s engineering team to deploy updated images within the agreed refresh window to maintain continued service and support coverage.  Customer can choose to keep using the same old model images, service will not be impacted; though Smallest may discontinue providing development or customer service support on such models.

EXHIBIT B – SERVICE LEVELS AND SUPPORT

1. Service Levels.  Smallest will use commercially reasonable efforts to make the Product available during the Term twenty-four (24) hours a day, seven (7) days a week, except for excused downtime, which, for purposes of this Agreement, means (i) planned downtime (with reasonable advance notice to Customer) of the Product; (ii) emergency downtime of the Product; and (iii) any unavailability of the Product caused by circumstances beyond Smallest’s reasonable control.

2. Support.  Smallest will provide reasonable technical support to Customer by email, in connection with its Use of the Product on weekdays during the hours of 9:00 a.m. to 5:00 p.m. Pacific Time, with the exception of U.S. federal holidays (“Support Hours”), subject to the following conditions: (i) prior to initiating any support request, Customer (and its own personnel responsible for information technology support) will have first attempted to resolve the issue generating the need for such support; and (ii) Customer will reasonably cooperate with Smallest support staff as needed to resolve the issue.

Customer may initiate a helpdesk ticket during Support Hours by emailing support@smallest.ai