XEN.AI.AI, INC.
SUBSCRIPTION AGREEMENT
TERMS AND CONDITIONS
 
1.	Definitions. Capitalized terms, not otherwise defined above, have the meanings set forth or cross-referenced in this Section 1.
1.1	“Affiliates” shall mean, with respect to any party, any entity controlling, controlled by or under common control with such party. As used in this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation, partnership, limited partnership, association, limited liability company or other entity whether through the ownership of voting securities, by contract or otherwise.
1.2	 “Authorized User” means, collectively, any individual employees, agents or contractors of Client accessing or using the Services solely on behalf and for the benefit of Client in the operation of Client’s business.
1.3	  “Client Data” means information (i) entered as input by Client or (ii) produced as output by the Services based on a specific query or execution initiated by Client. Client represents and warrants that it has all necessary rights and consents to provide Client Data to Xen.AI in connection with this Agreement.
1.4	 “Confidential Information” means information that one Party (or an Affiliate) discloses to the other Party under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. It does not include information that is independently developed by the recipient, is rightfully given to the recipient by a third party without confidentiality obligations, or becomes public through no fault of the recipient. Customer Data is considered Customer’s Confidential Information.     The Services and all information related to the Services, including but not limited to Xen.AI's trade secrets and/or confidential or proprietary information, know-how, inventions, techniques, processes, algorithms, software programs, object and/or source code, firmware code, specifications, techniques, methods, records, data, drawings, schematics, user interface, data presentation, notes, models, reports, samples, roadmap information (including without limitation short-term, mid-term and long-term development plans for functionality, utilization, and increasing customer adoption and market penetration for the Services),  information about Xen.AI's marketing, sales, products, pricing, customers or potential customers, vendors or potential vendors; and Feedback, is considered Xen.AI Confidential Information.
1.5	 “Documentation” means text and/or graphical documentation, whether in electronic or printed format, that describe the features, functions and operation of the Services, which materials are designed to facilitate use of the Services and which are provided by Xen.AI to Client in accordance with the terms of this Agreement.
1.6	"Feedback" means all information provided by Client to Xen.AI related to the Services and Documentation, including without limitation, bugs, problems and suggested improvements.  Client hereby assigns and agrees to assign to Xen.AI all of its right, title and interest in Feedback and acknowledges that Xen.AI shall own all rights in Feedback.
1.7	 “Intellectual Property Rights” means any and all rights existing under patent law, copyright law,  moral rights law, trade secret law, trademark law, unfair competition law, publicity rights law, privacy rights law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.
1.8	“Order” means an ordering document signed by the Parties specifying the Services purchased by Client and the applicable Subscription Term.
1.9	 “Services” means the technology and services, proprietary processes, any third party data, documentation and output delivered by Xen.AI and specified in an Order.
1.10	“Updates” means any error corrections, bug fixes, modifications or minor enhancements to the Services that Xen.AI generally makes available to all its clients, but in no event includes new services or modules different in name and function to those purchased by Client.
1.11	"Subscription Term" means the term of the subscription for the applicable Services as specified in an Order. 
2.	Scope. Xen.AI shall provide to Client the Services. Client authorizes Xen.AI to perform, on behalf of Client and its Affiliates, such Services subject to the terms of this Agreement.
3.	Services and Subscription. Subject to the terms and conditions contained in this Agreement, Xen.AI hereby grants to Client a non-exclusive, non-transferable right (i) to access the features and functions of the Services during the applicable Subscription Term, solely by Authorized Users and solely as contemplated in this Agreement;  (ii) to transmit Client Data to the Services through the Internet; and (iii) a non-exclusive, non-transferable right and license to use, and to make a reasonable number of copies of, the Documentation solely for Client’s internal use in connection with access and use of the Services. Client further acknowledges and agrees that it shall be responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User, which, if undertaken by Client, would constitute a breach of this Agreement is deemed a breach of this Agreement by Client.  Client shall undertake reasonable efforts to make all Authorized Users aware of the provisions of this Agreement as applicable to such Authorized Users’ use of the Services and shall use its best efforts to cause Authorized Users to comply with such provisions.
4.	Updates. Xen.AI may provide Updates to the Services as Xen.AI makes the same generally available to Xen.AI’s clients for the same Services.   Xen.AI reserves the right, in its sole discretion and without incurring any liability to Client, to change, enhance and otherwise modify the specifications for, and formulations and methods of provision of, the Services, provided that such alterations will not materially reduce the functionality of the same.  Xen.AI further reserves the right, in its sole discretion, to create new products and/or services based upon or incorporating the Services or elements thereof.
5.	Usage Restrictions.  Client will ensure that its use of the Services and the Documentation complies with all applicable laws, statutes, regulations or rules. Client will not, and will not permit its employees to (i) copy or duplicate the Services; (ii) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Services is compiled or interpreted, and Client acknowledges that nothing in this Agreement will be construed to grant Client any right to obtain or use such source code; (iii) modify the Services, or the Documentation, or create any derivative product from any of the foregoing, except with the prior written consent of Xen.AI; or (iv) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Client’s rights under Section 3. Client will not use the Services and/or the Documentation except in compliance with this Agreement and Xen.AI's obligations to any third party with respect thereto, provided that Xen.AI has notified Client of such obligations.
6.	Xen.AI's Retained Rights and Ownership.  Notwithstanding Sections 2 and 3, Xen.AI hereby retains the right to use, and to grant third parties the right to use, the Services and the Documentation for any and all purposes whatsoever.  As between Xen.AI and Client, Xen.AI retains all right, title and interest in the Services, and in and to the Documentation, including all copies thereof in any form or medium, whether now known or existing or hereafter developed, and further including all pricing methodologies, models, programs, analytical tools, algorithms, software tools and related methodologies, its copyrights, patents, trade secrets, trademarks or trade names therein. Except to the extent granted herein, Client acquires no rights in any of the foregoing.
7.	Client Data and License. During the Term, Client grants to Xen.AI a limited, non-exclusive, non-sublicensable, non-transferable license to use, copy, store and display Client Data solely to the extent necessary to provide the Services to Client.  Xen.AI may not use Client Data for any other purpose except when aggregated with the data of other clients where the identification of any particular client cannot be ascertained ("De-Identified Data").  In addition to its confidentiality obligations under Section 9, Xen.AI will not use, edit or disclose Client Data to any party other than Client without Client’s consent. Xen.AI will exercise commercially reasonable efforts to maintain the security and integrity of the Services and Client Data and will inform Client of any third party who requires access to Client Data.  Upon termination or expiration of this Agreement for any reason and upon written request by Client, Xen.AI will provide Client with the Client Data in a mutually agreed upon format and timeframe. As between Xen.AI and Client, Client Data is the sole and exclusive property of Client.
8.	 Fees. In consideration for the access rights granted, Client shall pay to Xen.AI, without offset or deduction, certain fees, as set forth in each Order.  Method of payment shall be in the form agreed in this Section 8. Client will be responsible for payment of any applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on Xen.AI's income), and any related penalties and interest for the delivery of services hereunder. Client will make all required payments to Xen.AI free and clear of, and without reduction for, any withholding taxes.
8.1	Invoicing. The Services shall be billed to Client annually in advance unless specified otherwise on an Order.  All other services shall be billed upon delivery of the services unless specified otherwise on an Order.
8.2	Payment. The Client shall pay invoices within thirty (30) days of the receipt of the invoice from Xen.AI. Payments originating from outside of the United States shall be made via wire transfer per wiring instructions provided by Xen.AI. In the event that Client does not pay any amount due within forty-five (45) calendar days of the due date for such amount, Xen.AI will have the right to charge a late fee of one and one half percent (1 ½ %) per month on any unpaid amounts or the highest amount permitted by law, whichever is less.  In addition, Xen.AI may terminate provision of the Electronic Services for non-payment after ninety (90) days of the original payment due date.  Client also shall pay Xen.AI all reasonable costs incurred by Xen.AI in enforcing the provisions of this Agreement.  No failure by Xen.AI to request any payment hereunder or to demand any performance hereunder shall be deemed a waiver by Xen.AI of Client’s obligations hereunder or a waiver of Xen.AI's right to terminate this Agreement.
9.	Confidentiality. The Parties acknowledge that during the performance of this Agreement, each Party may have access to certain of the other Party’s Confidential Information. Each Party agrees that (i) all items of Confidential Information are proprietary to the disclosing Party and will remain its sole property; (ii) to use Confidential Information only for the purposes described herein; (iii) not to reproduce Confidential Information; (iv) to hold in confidence and protect such Confidential Information from dissemination as if it were its own; and (v) to return or destroy (except for copies maintained through bona fide document retention policies, which will be subject to this Section 9 until such copies are destroyed) all Confidential Information that is in its possession upon termination or expiration (as the case may be) of this Agreement. Notwithstanding the foregoing, the provisions of this Section 9 will not apply to Confidential Information that (a) is publicly available or in the public domain at the time disclosed or becomes publicly available or enters the public domain through no fault of the recipient; (b) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (c) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; or (d) is independently developed by the recipient.  Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law. Client understands and agrees that the Services contain Xen.AI Confidential Information protected by law and this Agreement. Consistent with that understanding, Client agrees that it will (i) maintain in confidence any Xen.AI Confidential Information contained in the Services and (ii) limit access to the Services to those of Client’s employees who reasonably need to have access to the Services in order to make proper use of the Services in Client’s internal operations. Client agrees to either: (i) require any person given access to the Services to execute a written agreement (which may be Client’s standard employee agreement if it applies these protections to the Xen.AI Confidential Information) requiring non-disclosure of Xen.AI Confidential Information and limiting the use of such information to uses within the scope of the employee’s duties; or (ii) inform all of such persons that Client is obligated to keep Xen.AI Confidential Information (or vendor confidential information generally) confidential and it is Client’s policy to keep such information confidential. If Client discovers that anyone who has access to the Services or Xen.AI Confidential Information made available to Client under this Agreement is assisting a competitor of Xen.AI in the development or enhancement of software that competes with, or is being developed to compete with, any Services, Client shall investigate the matter and promptly notify Xen.AI.
10.	Representations, Warranties and Disclaimer. Xen.AI warrants that the Services will substantially conform to the specifications set forth in the Documentation. Client's exclusive remedy for breach of this Section 10 shall be a correction of any such failure to conform. If Xen.AI is unable to correct the failure within a commercially reasonable time or if the failure substantially interferes with the Client's use of the Service (as determined by Xen.AI), Xen.AI shall have the option, in its sole discretion, to either (i) accept the extension of the term of any applicable subscription for the length of the effected period at no additional cost or expense to Client, or (ii) terminate the subscription for the affected Service and refund a portion of the fee relating to the effected period for that Service.  EXCEPT FOR THE FOREGOING WARRANTY, THE SERVICES AND DOCUMENTATION ARE MADE AVAILABLE TO USE “AS IS” AND WITHOUT WARRANTY OF ANY KIND. XEN.AI SPECIFICALLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. XEN.AI DOES NOT WARRANT THAT THE SERVICES OR ANY OTHER INFORMATION, MATERIALS AND/OR DATA PROVIDED UNDER THIS AGREEMENT WILL MEET CLIENT’S REQUIREMENTS OR IS COMPLETE, ACCURATE OR ERROR-FREE. CLIENT SHALL NOT MAKE ANY REPRESENTATIONS OR WARRANTIES ON BEHALF OF XEN.AI. CLIENT SHALL BE SOLELY RESPONSIBLE FOR ANY PROFESSIONAL DECISIONS MADE BASED UPON USE OF THE SERVICES. CLIENT IS SOLELY RESPONSIBLE FOR BACKING UP ANY CLIENT DATA.
11.	 Assumption of Risk; Professional Judgment. THE INFORMATION CONTAINED IN THE SERVICE IS INTENDED ONLY AS A SUPPLEMENT TO THE KNOWLEDGE AND PROFESSIONAL JUDGMENT OF PHYSICIANS AND OTHER HEALTHCARE PROFESSIONALS.  THE SERVICE IS NOT AND IS NOT INTENDED TO BE A SUBSTITUTE FOR PROFESSIONAL MEDICAL JUDGEMENT IN PATIENT DIAGNOSIS OR TREATMENT. CLIENT ON BEHALF OF ITSELF AND EACH AUTHORIZED USER HEREBY COVENANTS AND AGREES THAT THEY SHALL USE THE HIGHEST DEGREE OF CARE WHEN USING THE SERVICE, AND SHALL ANALYZE INFORMATION PROVIDED BY THE SERVICE IN LIGHT OF ALL OF THE OTHER AVAILABLE INFORMATION BEFORE RELYING ON SUCH INFORMATION OR MAKING DECISIONS REGARDING PATIENT CARE.  CLIENT ASSUMES ALL RISK FOR THE CARE OF ITS PATIENTS WHEN USING THE SERVICE AND XEN.AI SHALL NOT BE RESPONSIBLE FOR ANY LOSSES, INJURIES, DAMAGES OR OTHER CONSEQUENCES TO CLIENT OR ITS PATIENTS RESULTING FROM SUCH USE. XEN.AI DOES NOT, NOR DOES IT INTEND TO, ENGAGE IN THE PERFORMANCE OR DELIVERY OF MEDICAL OR HEALTH CARE SERVICES.
12.	Indemnification. Xen.AI agrees to indemnify, defend and hold Client harmless from and against any and all losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from any claim by any third party that the Services infringe or misappropriate, as applicable, such third party’s United States patents issued as of the Effective Date, or copyrights, trademarks or trade secret rights recognized under applicable laws of any jurisdiction within the United States, provided that Client promptly notifies Xen.AI in writing of the claim, cooperates with Xen.AI, and allows Xen.AI sole authority to control the defense and settlement of such claim, provided that Xen.AI will not settle any third-party claim against Client unless such settlement completely releases Client from all liability with respect to such claim or unless Client consents to such settlement, and further provided that Client will have the right, at its option and sole expense, to participate in the defense of such claim thereof by counsel of its own choice and expense.  If such a claim is made or appears possible, Client agrees to permit Xen.AI, at Xen.AI's sole discretion, to enable it to continue to use the Services, as applicable, or to modify or replace any such infringing material to make it non-infringing without a material loss of functionality.  If Xen.AI determines that none of these alternatives is reasonably available, Client shall, upon written request from Xen.AI, cease use of, and, if applicable, return, such materials as are the subject of the infringement claim. This Section 12 shall not apply if the alleged infringement arises, in whole or in part, from (i) modification of the Services or any other materials provided by Xen.AI, (ii) combination, operation or use of the Services with other software, hardware or technology not provided by Xen.AI, or (iii) Client Data.  Each of (i), (ii), or (iii), shall be deemed a “Client Indemnity Responsibility.” Client agrees to hold, harmless, indemnify, and, at Xen.AI's option, defend Xen.AI from and against any losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from (i) Client negligence or willful misconduct; or (ii) any Client Indemnity Responsibility, provided that Client will not settle any third-party claim against Xen.AI unless such settlement completely releases Xen.AI from all liability with respect to such claim or unless Xen.AI consents to such settlement, and further provided that Xen.AI will have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.
13.	Limitation on liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL XEN.AI BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, OR OTHER PECUNIARY LOSS, IN ANY WAY ARISING OUT OF OR RELATED TO THE SERVICES OR THIS AGREEMENT, EVEN IF XEN.AI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE CUMULATIVE LIABILITY OF XEN.AI TO CLIENT FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES PAID TO XEN.AI BY CLIENT UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO LIABILITY DURING THE TWELVE (12)-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR EVENT GIVING RISE TO SUCH LIABILITY.
14.	Term. The Agreement shall commence on the Effective Date and shall remain in effect until the expiration of all outstanding Orders (the “Term”). Each Order will automatically renew for additional one-year periods unless written notice of termination is provided by one of the Parties not less than forty-five (45) days prior to the commencement of the relevant renewal term under such Order or in accordance with Section 14.  Fees may be increased annually on the anniversary of the Effective Date by the greater of the annual increase in the United States Consumer Price Index for All Urban Consumers (CPI-U) or 5% upon sixty (60) days’ prior written notice from Xen.AI to Client.
15.	Termination.  Either Party may terminate this Agreement immediately upon written notice in the event that the other Party materially breaches this Agreement and fails to cure such breach within thirty (30) days following such other Party’s receipt of written notice specifying the nature of the breach in reasonable detail.
16.	Limitations on Import and Export.  The Services are subject to the customs, import and export control laws and regulations of the United States and any country in which the Services are manufactured, received or used.   Further, the Services include software and technology that is subject to export controls of the United States and other countries (“Export Controls”).  U.S. law prohibits the export or re-export of the Electronic Services to specified countries or to a resident or national of those countries (“Prohibited Country” or “Prohibited Countries”).  It also prohibits exports or re-exports of the Services to any person or entity on the U.S. Department of Commerce Denied Persons List, Entities List or Unverified List; the U.S. Department of State Debarred List; or any of the lists administered by the U.S. Department of Treasury, including lists of Specially Designated Nationals, Specially Designated Terrorists or Specially Designated Narcotics Traffickers (collectively, the “Lists”). Client represents and warrants on behalf of itself and its employees that it is not located in, or a resident or national, of any Prohibited Country; that it is not on any Lists; and that it will comply with Export Controls.  Client is solely responsible for compliance with all applicable customs, import and Export Control requirements, including obtaining any required licenses or authorizations outside the United States.  Client’s obligations under this provision shall remain in effect after termination, cancelation or expiration of this Agreement.
17.	General. This Agreement will be governed by the laws of the State of California, without regard to, or application of, rules or principles regarding conflicts of law or the United Nations Convention on the International Sale of Goods.  For purposes of all claims brought under this Agreement, each of the parties hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts located in the Delaware. Client acknowledges that Xen.AI will have the right to seek an injunction if necessary to stop or prevent a breach of Client’s obligations hereunder. In the event that Xen.AI prevails in any proceeding or lawsuit brought by either party in connection with this Agreement, Xen.AI will be entitled to receive its costs, expert witness fees and reasonable attorney’s fees, including costs and fees on appeal.  Waiver of a breach of or right hereunder must be in writing and will not constitute a waiver of any other or subsequent breach or right. Any notices required pursuant to this Agreement shall be in writing and shall be deemed to have been given if personally delivered or sent by certified or registered mail (return receipt) or via overnight courier (e..g, Federal Express), to the address on the cover page of this Agreement or the applicable Order. If any provision herein shall be held by a court of competent jurisdiction to be contrary to law, that provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law, and the remaining provisions herein will remain in full force and effect. Client may not assign this Agreement without obtaining Xen.AI's prior written consent and any attempted or purported assignment by Client shall be null and void. This Agreement constitutes the entire agreement, understanding and representations, expressed or implied, of the parties with respect to the subject matters described herein, and supersedes all prior written and oral communications, agreements, letters of intent, representations, warranties, statements, negotiations, understandings and proposals, with respect to such subject matters. This Agreement may not be amended or modified without the written agreement of Client and Xen.AI.

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