Enterprise Agreement

BY INDICATING ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY DiPhyx OFFERINGS, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE ANY DiPhyx OFFERINGS. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU. IF YOU ARE USING ANY DiPhyx OFFERINGS AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND SUCH ENTITY IN ORDER FORM TO ACCEPT THE TERMS OF THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.

This DiPhyx Enterprise Agreement (“Agreement”) is entered into by and between DiPhyx, Inc. (“DiPhyx”) the entity or corporation you represent in accepting these terms, or if that does not apply, then you personally (“Customer” or “Enterprise User”). This Agreement consists of the terms and conditions set forth below and any attachments, addenda, or exhibits referenced in the Agreement, and any Order Forms that reference this Agreement. The “Effective Date” of this Agreement is the date which is the earlier of (a) Customer’s initial access to any DiPhyx Offering (as defined below) through any online provisioning, registration or Order Form process, or (b) the effective date of an Order Form referencing this Agreement.

1. Overview.  DiPhyx provides a cloud-based, high-performance computing environment which enables customers to run Jobs that involve the execution of Licensed Application Software on CSP Infrastructure among other features and functionality (the “DiPhyx Platform”). This Agreement sets forth the terms pursuant to which Customer may access and use the DiPhyx Platform in connection with one or more Order Forms or on a monthly “pay as you go” basis (“PAYG”).

2. DiPhyx Platform.

2.1 Access and Use. Customer may access and use the DiPhyx Platform only for its own internal business purposes in accordance with the Documentation and this Agreement, including the relevant Order Form.

2.1.1 DiPhyx will monitor Customer’s hourly usage of CSP Infrastructure via the DiPhyx Platform, and will compute (based upon the DiPhyx Pricing described below) the total fees owed by Customer to DiPhyx as a result of such usage, after taking into account the remaining amount of any Deposits or other fees (“Enterprise User Monthly Infrastructure Fees”). DiPhyx will calculate Enterprise User Monthly Infrastructure Fees by multiplying (i) each DiPhyx Customer’s hourly usage (during that month) of third-party CSP Infrastructure via the DiPhyx Platform, by (ii) the sum of the applicable CSP Infrastructure Rates and DiPhyx Platform Rates. Enterprise User Monthly Infrastructure Fees will include the sum of such amounts for each Authorized User, as well as any Other Infrastructure Fees incurred that month. The Infrastructure Rates and Platform Rates applicable to Jobs run by DiPhyx Customers will be accessible to designated administrators of the Enterprise User Account via the DiPhyx Platform interface. Such rates may also be specified (in whole or in part) in an active Order Form. Reserved Instance and other flat-fee or similar non-usage-based pricing, may also be specified in an Order Form.

2.1.2 DiPhyx will also monitor, during each calendar month, each Customer’s hourly usage of third-party Licensed Application Software (to the extent it is licensed on an On-Demand basis) via the DiPhyx Platform, and will compute (as described below) the total fees owed by the Customer to each relevant ISV for that calendar month as a result of such usage (“Enterprise User Monthly Software Fees”). DiPhyx will calculate Enterprise User Monthly Software Fees by multiplying (i) each Authorized User’s hourly usage (during that month) of third-party Licensed Application Software (to the extent it is licensed on an On-Demand basis) via the DiPhyx Platform, by (ii) the applicable On- Demand rates as specified in the DiPhyx Platform interface.

2.2 Authorized Users. Only Authorized Users may access or use the DiPhyx Platform. Each Authorized User must keep its login credentials confidential and not share them with anyone else. Customer is responsible for its Authorized Users’ compliance with this Agreement and actions taken through their accounts (excluding misuse of accounts caused by DiPhyx’s breach of this Agreement). Customer will promptly notify DiPhyx if it becomes aware of any compromise of its Authorized User login credentials. DiPhyx uses Authorized Users account information as described in its Privacy Policy.

2.3 Restrictions.** Except as expressly allowed by DiPhyx in writing, Customer will not (and will not permit anyone else to) do any of the following: (a) provide access to, distribute, sell or sublicense the DiPhyx Platform  to a third party, (b) use the DiPhyx Platform on behalf of, or to provide any product or service to, third parties, (c) use the DiPhyx Platform to develop a similar or competing product or service, (d) reverse engineer, decompile, disassemble or seek to access the source code or non-public APIs to the DiPhyx Platform, except to the extent expressly permitted by Law (and then only with prior notice to DiPhyx), (e) modify or create derivative works of the DiPhyx Platform or copy any element of the DiPhyx Platform, (f) remove or obscure any proprietary notices in the DiPhyx Platform, (g) publish benchmarks or performance information about the DiPhyx Platform, (h) interfere with the DiPhyx Platform’s operation, circumvent its access restrictions or conduct any security or vulnerability test of the DiPhyx Platform or (i) transmit any viruses or other harmful materials to the DiPhyx Platform.

3. Support and Availability. DiPhyx will adhere to the SLA and Support Policies. DiPhyx will provide Customer with the level of Support specified in an Order Form. If no level of Support is specified in an Order Form, DiPhyx will provide “Production” level Support.

4. Customer Data.

4.1 Data Use. As between the parties, Customer retains all intellectual property and other rights in Customer Data. Customer grants DiPhyx the non-exclusive, worldwide right to process the Customer Data to provide the DiPhyx Platform, Support and any Professional Services to Customer under this Agreement to prevent or address service or technical problems therein, or as may be required by law. Use of Customer Data includes sharing Customer Data as Customer directs through the DiPhyx Platform.

4.2 Security. DiPhyx uses reasonable technical and organizational measures designed to protect the DiPhyx Platform and Customer Data as described in the Security Policy.

4.3 Personal Data. Each party agrees to comply with the DPA.

4.4 Customer Data Export. During the term of this Agreement and for 30 days afterwards, Customer may export Customer Data from the DiPhyx Platform using the export features described in the Documentation. Customer acknowledges that Other Infrastructure Fees continue to apply to Customer Data in the DiPhyx Platform.

5. Customer Obligations. Customer is responsible for Customer Data, including its content, accuracy, and legality, and agrees to comply with Laws and the AUP in using the DiPhyx Platform. Customer represents and warrants that it has made all disclosures and has all rights, consents and permissions necessary to use its Customer Data with the DiPhyx Platform and grant DiPhyx the rights in Section 4.1 (Data Use), all without violating or infringing Laws, third-party rights (including intellectual property, publicity or privacy rights) or any terms or privacy policies that apply to the Customer Data. Customer is responsible for (i) reviewing the information made available by DiPhyx relating to data security and making an independent determination as to whether the DiPhyx Platform meets Customer’s requirements and legal obligations under applicable Laws, and (ii) compliance with the terms of all licenses and technical documentation relating to the use of the DiPhyx Platform, the Licensed Application Software and the CSP Infrastructure, (iii) properly configuring the DiPhyx Platform and maintaining backing up Customer Data.

6. Suspension of Service. DiPhyx may suspend Customer’s access to the DiPhyx Platform and related services if (a) Customer breaches Section 2.3 (Restrictions) or Section 5 (Customer Obligations), (b) Customer’s account is 5 days or more overdue, or (c) Customer’s actions risk harm to others or the security, availability or integrity of the DiPhyx Platform. Where practicable, DiPhyx will use reasonable efforts to provide Customer with prior notice of the suspension (email sufficing). Once the issue requiring suspension is resolved, DiPhyx will promptly restore Customer’s access to the DiPhyx Platform in accordance with this Agreement.

7. Professional Services. Any purchased Professional Services are as described in the relevant Order Form (or statement of work signed by both parties). Customer will give DiPhyx timely access to Customer Materials reasonably needed for the Professional Services, and if Customer fails to do so, DiPhyx’s obligation to provide Professional Services will be excused until access is provided. DiPhyx will use Customer Materials only for purposes of providing Professional Services. DiPhyx exclusively owns all rights, title, and interest to any deliverables that result from or are provided under the Professional Services. Customer may use Professional Services deliverables only as part of its authorized use of the DiPhyx Platform, subject to the same terms as for the DiPhyx Platform in Section 2 (DiPhyx Platform) and Section 5 (Customer Obligations).

8. Fees and Payment.

8.1 Fees and Taxes.  Customer agrees to pay all Fees in accordance with this Agreement and applicable Order Forms. Except as set forth below, use of the DiPhyx Platform requires a Deposit against which usage of the DiPhyx Platform by Customer is applied at the DiPhyx Pricing rates. DiPhyx will make available to Customer, via an administrative interface to the DiPhyx Platform, the detailed usage of each Authorized User and the current balance, if any, of unexpired Deposits. Customer is responsible for Fees for any excess usage and Third Party Software Fees, which will be invoiced monthly in arrears.

8.2 Payment. All Fees (i) must be paid in U.S. Dollars, and (ii) are due within 30 days of the invoice date unless otherwise set forth in an Order Form. Late payments are subject to a service charge of 1.5% per month or the maximum amount allowed by Law, whichever is less. All Fees and payment obligations are non-refundable and non-cancelable except as expressly set forth in this Agreement. Customer is responsible for any sales, use, GST, value-added, withholding or similar taxes or levies that apply to its Orders, whether domestic or foreign (“Taxes”), other than Vendor’s income tax. Fees and expenses are exclusive of Taxes. Taxes will not be deducted from payments to DiPhyx, except as required by applicable law, in which case Customer will increase the amount payable as necessary so that, after making all required deductions and withholdings, DiPhyx receives and retains (free from any liability for Taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. DiPhyx will invoice Customer using the billing contact information set forth in the applicable Order Form or as otherwise updated by Customer. In the event Customer prefers to use any other billing platform for invoicing and payment hereunder, the parties will reasonably work together to facilitate the same, provided that such platform is: (i) able to accommodate the services payable hereunder; and (ii) operational without cost to DiPhyx (i.e., use of such platform is either without out-of-pocket cost to DiPhyx, including for any related set-up fees, or Customer promptly reimburses or otherwise credits DiPhyx for any such additional costs or fees).

8.3 PAYG. If approved by DiPhyx, Customer may use the DiPhyx Platform on a PAYG basis at applicable PAYG rates.  Fees for PAYG usage will be invoiced monthly in arrears. Unless otherwise agreed by DiPhyx, PAYG requires a valid credit card for PAYG usage. Customer authorizes DiPhyx to charge Customer’s account for the DiPhyx Offerings using that payment method. Customer must keep all information in its billing account current to ensure that all Fees are charged to the appropriate account and are timely paid.

8.4 Reseller Orders Forms. Customer may procure certain DiPhyx Offerings through a DiPhyx-authorized reseller (“Reseller”) pursuant to a separate agreement between Customer and Reseller (a “Reseller Arrangement”), which may specify different terms regarding invoicing, taxes and payments. DiPhyx will only be obligated to provide the DiPhyx Offerings to Customer in connection with a Reseller Arrangement if DiPhyx and Reseller have agreed in writing to such purchase. Customer acknowledges and agrees that, solely in connection with the purchase by Customer through a Reseller Arrangement: (a) DiPhyx may share information with Reseller related to Customer’s use and consumption of the DiPhyx Offerings; (b) notwithstanding anything to contrary in this Agreement, references to “Customer” in each of the defined terms “Fees” and “Order Form” in this Agreement shall be replaced with “Reseller,” and all payments of fees, refunds and credits, if any, are payable by or to the Reseller; (c) this Agreement governs Customer’s use of the DiPhyx Offerings, notwithstanding anything to the contrary in the Reseller Arrangement; and (d) Reseller is not authorized to make any changes to this Agreement or otherwise authorized to make any warranties, representations, promises or commitments on behalf of DiPhyx or in any way concerning the DiPhyx Offerings.

9. Warranties and Disclaimers.

9.1 Limited Warranty. DiPhyx warrants to Customer that (a) the DiPhyx Platform will perform materially as described in the Documentation (the “Performance Warranty”) and (b) DiPhyx will perform any Professional Services in a professional and workmanlike manner (the “Professional Services Warranty”).

9.2 Warranty Remedy. If DiPhyx breaches Section 9.1 (Limited Warranty) and Customer makes a reasonably detailed warranty claim within 30 days of discovering the issue with respect to the DiPhyx Platform or of receipt of the applicable Professional Services, then DiPhyx will use reasonable efforts to correct the non-conformity. If DiPhyx cannot do so within 30 days of Customer’s warranty claim, either party may terminate the affected Order Form as it relates to the non-conforming Service or Professional Services. DiPhyx will then refund to Customer any pre-paid, unused fees for the terminated portion of the DiPhyx Platform (for the Performance Warranty) or for the non-conforming Professional Services (for the Professional Services Warranty). These procedures are Customer’s exclusive remedy and DiPhyx’s entire liability for breach of the warranties in Section 9.1. These warranties do not apply to (a) issues caused by misuse or unauthorized modifications, (b) issues in or caused by ISVs, CSPs, or other third-party systems or (c) Trials and Betas or other free or evaluation use. Refunds do not include costs for third party commitments DiPhyx has made on behalf of Customer, including any Reserved Instance.

9.3 DISCLAIMER. Except as expressly provided in Section 9.1 (Limited Warranty), DiPhyx Offerings are provided “AS IS”. DiPhyx and its suppliers make no other warranties, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular purpose, title or noninfringement. DiPhyx does not warrant that Customer’s use of the DiPhyx Offerings will be uninterrupted or error-free. DiPhyx is not responsible for the accuracy of the Customer Data, including the output of Jobs, and its suitability for any desired use or purpose. DiPhyx makes no warranties and disclaims all liability related to the CSP Infrastructure and License Application Software. DiPhyx may change, discontinue, or deprecate certain functionality of the DiPhyx Platform from time to time (including APIs) but will use reasonable efforts to notify Customer of any material change to the DiPhyx Platform.

10. Term and Termination.

10.1 Term. This Agreement starts on the Effective Date and continues until expiration or termination as set forth below.

10.2 Termination.  The Agreement may be terminated by either party on thirty (30) days’ prior written notice if there are no operative Order Forms outstanding. Either party may terminate this Agreement (including all Orders Forms) if the other party (a) fails to cure a material breach of this Agreement (including a failure to pay Fees) within 30 days after notice, (b) ceases operation without a successor or (c) seeks protection under a bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if such a proceeding is instituted against that party and not dismissed within 60 days.

10.3 Effect of Termination. Upon expiration or termination of this Agreement, Customer’s access to the DiPhyx Platform, Support and Professional Services will cease, other than limited use of the Platform Services to export Customer Data as described in Section 4.5 (Data Export). At the disclosing party’s request, upon expiration or termination of this Agreement, the receiving party will delete all of the disclosing party’s Confidential Information (excluding Customer Data, which is addressed in Section 4.5). Customer Data and other Confidential Information may be retained in the receiving party’s standard backups after deletion but will remain subject to this Agreement’s confidentiality restrictions. Notwithstanding any termination or anything to the contrary in this Agreement or any Order Form, Customer shall pay all Fees owed under the Agreement or any Order Form.

10.4 PAYG. Notwithstanding anything in the Agreement to the contrary, DiPhyx may suspend or terminate any use of the DiPhyx Platform provided on a PAYG basis and delete any Customer Data relating to such account without notice, provided that DiPhyx will use commercially reasonable efforts to provide thirty (30) days’ prior written notice (email sufficient).

11. Ownership. Neither party grants the other any rights or licenses not expressly set out in this Agreement. Except for DiPhyx’s use rights in this Agreement, between the parties Customer retains all intellectual property and other rights in Customer Data and Customer Materials provided to DiPhyx. Except for Customer’s use rights in this Agreement, DiPhyx and its licensors retain all intellectual property and other rights in the DiPhyx Platform, any Professional Services deliverables and related DiPhyx technology, templates, formats and dashboards, including any modifications or improvements to these items made by DiPhyx. If Customer provides DiPhyx with feedback or suggestions regarding the DiPhyx Platform or other DiPhyx offerings, DiPhyx may use the feedback or suggestions without restriction or obligation.

12. Usage Data.**  DiPhyx may collect Usage Data and use it to operate, improve, train and support the DiPhyx Platform and for other lawful business practices, such as analytics, benchmarking, recommendations, and reports. However, DiPhyx will not disclose Usage Data externally unless it has been (a) de-identified so that it does not individually identify Customer, its Authorized Users or any other person and (b) aggregated with usage data across other DiPhyx customers.

13. Limitations of Liability.

13.1 Consequential Damages Waiver. Except for Excluded Claims, neither party (nor its suppliers) will have any liability arising out of or related to this Agreement for any loss of use, lost data, lost profits or revenues, failure of security mechanisms,  interruption of business or any indirect, special, incidental, reliance or consequential damages of any kind, even if informed of their possibility in advance. DiPhyx will have no liability arising out of Customer’s use of CSP Infrastructure or Licensed Application Software via the DiPhyx Platform or the cost of procurement of substitute services.

13.2 Liability Cap. Except for Excluded Claims or Enhanced Claims, each party’s (and its suppliers’) entire liability arising out of or related to this Agreement will not exceed in aggregate the amounts paid or payable by Customer to DiPhyx during the prior 12 months under this Agreement (“General Liability Cap”).

13.3 Excluded Claims. “Excluded Claims” means claims based on: (a) liability that cannot be excluded under applicable law, (b) Customer’s failure to pay all Fees due under this Agreement or Customer’s breach of Sections 2.3 or 5 or, (c) either party’s breach of Section 15 (Confidentiality), excluding breaches related to Customer Data.

13.4 Enhanced Claims. For any and all Enhanced Claims, DiPhyx’s aggregate liability will be subject to an enhanced liability cap not to exceed the lesser of 3 times the amounts paid or payable by Customer to DiPhyx during the prior 12 months under this Agreement or $1,000,000.00. “Enhanced Claims” mean (a) claims based on the  unauthorized disclosure of Customer Data caused by a breach of DiPhyx’s obligations under Section 4.2 (Security), and (b) amounts payable to third parties under the indemnifying party’s obligations in Section 14 (Indemnification).

13.5 Nature of Claims and Failure of Essential Purpose. The waivers and limitations in this Section 13 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy in this Agreement fails of its essential purpose.

14. Indemnification.

14.1 Indemnification by DiPhyx. DiPhyx will defend Customer from and against any third-party claim to the extent alleging that the DiPhyx Platform, when used by Customer as authorized in this Agreement, infringes a third party’s U.S. patent, copyright, trademark or trade secret, and will indemnify Customer against any damages or costs finally awarded against Customer (including reasonable attorneys’ fees) or agreed in settlement by DiPhyx resulting from the claim.

14.2 Indemnification by Customer. Customer will defend DiPhyx from and against any third-party claim to the extent resulting from Customer Data or Customer Materials, and will indemnify and hold harmless DiPhyx against any damages or costs finally awarded against DiPhyx (including reasonable attorneys’ fees) or agreed in settlement by Customer resulting from the claim.

14.3 Procedures. The indemnifying party’s obligations in this Section 14 are subject to receiving (a) prompt notice of the claim, (b) the exclusive right to control and direct the investigation, defense and settlement of the claim and (c) all reasonably necessary cooperation of the indemnified party, at the indemnifying party’s expense for reasonable out-of-pocket costs. The indemnifying party may not settle any claim without the indemnified party’s prior consent if settlement would require the indemnified party to admit fault or take or refrain from taking any action (other than relating to use of the DiPhyx Platform, when DiPhyx is the indemnifying party). The indemnified party may participate in a claim with its own counsel at its own expense.

14.4 Mitigation and Exceptions. In response to an actual or potential infringement claim, if required by settlement or injunction or as DiPhyx determines necessary to avoid material liability, DiPhyx may at its option: (a) procure rights for Customer’s continued use of the DiPhyx Platform, (b) replace or modify the allegedly infringing portion of the DiPhyx Platform to avoid infringement without reducing the DiPhyx Platform’s overall functionality or (c) terminate the affected Order Form and refund to Customer any pre-paid, unused fees for the terminated portion of the Subscription Term. DiPhyx’s obligations in this Section 14 do not apply (1) to infringement resulting from Customer’s modification of the DiPhyx Platform or use of the DiPhyx Platform in combination with items not provided by DiPhyx, (2) to unauthorized use of the DiPhyx Platform, (3) to CSP Infrastructure or Licensed Application Software (4) if Customer settles or makes any admissions about a claim without DiPhyx’s prior consent or (5) to Trials and Betas or other free or evaluation use. This Section 14 sets out Customer’s exclusive remedy and DiPhyx’s entire liability regarding infringement of third-party intellectual property rights.

15. Confidentiality.

15.1 Definition. “Confidential Information” means information disclosed to the receiving party under this Agreement that is designated by the disclosing party as proprietary or confidential or that should be reasonably understood to be proprietary or confidential due to its nature and the circumstances of its disclosure. DiPhyx’s Confidential Information includes the terms and conditions of this Agreement and any technical or performance information about the DiPhyx Platform. Customer’s Confidential Information includes Customer Data.

15.2 Obligations. As the receiving party, each party will (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in this Agreement, including Section 4.1 (Data Use), and (b) only use Confidential Information to fulfill its obligations and exercise its rights in this Agreement. The receiving party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know (including, for DiPhyx, the subcontractors), provided it remains responsible for their compliance with this Section 15 and they are bound to confidentiality obligations no less protective than this Section 16.

15.3 Exclusions. These confidentiality obligations do not apply to information that the receiving party can document (a) is or becomes public knowledge through no fault of the receiving party, (b) it rightfully knew or possessed prior to receipt under this Agreement, (c) it rightfully received from a third party without breach of confidentiality obligations or (d) it independently developed without using the disclosing party’s Confidential Information.

15.4 Remedies. Unauthorized use or disclosure of Confidential Information may cause substantial harm for which damages alone are an insufficient remedy. Each party may seek appropriate equitable relief, in addition to other available remedies, for breach or threatened breach of this Section 15.

16. Required Disclosures. Nothing in this Agreement prohibits either party from making disclosures, including of Customer Data and other Confidential Information, if required by Law, subpoena or court order, provided (if permitted by Law) it notifies the other party in advance and cooperates in any effort to obtain confidential treatment.

17. Trials and Betas.** If Customer receives access to the DiPhyx Platform or features on a free or trial basis or as an alpha, beta, preview or early access offering, even if Fees are charged for such early access offering (“**Trials and Betas**”), use is permitted only for Customer’s internal evaluation during the period designated by DiPhyx. Trials and Betas are optional and either party may terminate Trials and Betas at any time for any reason. Trials and Betas may be inoperable, incomplete or include features that DiPhyx may never release, and their features and performance information are DiPhyx’s Confidential Information. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, DiPhyx PROVIDES NO WARRANTY, INDEMNITY, SLA OR SUPPORT FOR TRIALS AND BETAS AND ITS LIABILITY FOR TRIALS AND BETAS WILL NOT EXCEED US$500.00.

18. General Terms.

18.1 Assignment. Neither party may assign this Agreement without the prior consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization, acquisition or other transfer of all or substantially all its assets or voting securities. Any non-permitted assignment is void. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns.

18.2 Governing Law, Jurisdiction and Venue. This Agreement is governed by the laws of the State of Delaware and the United States without regard to conflicts of laws provisions and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to this Agreement will be the state and United States federal courts located in Delaware, and both parties submit to the personal jurisdiction of those courts.

18.3 Notices. Except as set out in this Agreement, any notice or consent under this Agreement must be in writing to the addresses on the first page and will be deemed given: (a) upon receipt if by personal delivery, (b) upon receipt if by certified or registered U.S. mail (return receipt requested), (c) one day after dispatch if by a commercial overnight delivery service or (d) upon delivery if by email. Either party may update its address with notice to the other party. DiPhyx may also send operational notices to Customer by email or through the DiPhyx Platform.

18.4 Entire Agreement. This Agreement is the parties’ entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. The provisions of this Agreement supersede any non-disclosure agreement by and between the parties (whether entered into before, on or after the Effective Date) that would purport to address the confidentiality and security of Customer Data and such agreement will have no further force or effect with respect to Customer Data. In this Agreement, headings are for convenience only and “including” and similar terms are to be construed without limitation. This Agreement may be executed in counterparts (including electronic copies and PDFs), each of which is deemed an original and which together form one and the same agreement. Without limiting the foregoing, no Customer purchase order will be deemed to modify an Order Form or this Agreement.

18.5 Amendments. Any amendments, modifications or supplements to this Agreement must be in writing and signed by each party’s authorized representatives or, as appropriate, agreed through electronic means provided by DiPhyx. Nonetheless, with notice to Customer, DiPhyx may modify the Policies to reflect new features or changing practices, but the modifications will not materially decrease DiPhyx’s overall obligations during the term of an Order Form. The terms in any Customer purchase order or business form will not amend or modify this Agreement and are expressly rejected by DiPhyx; any of these Customer documents are for administrative purposes only and have no legal effect.

18.6 Waivers and Severability. Waivers must be signed by the waiving party’s authorized representative and cannot be implied from conduct. If any provision of this Agreement is held invalid, illegal or unenforceable, it will be limited to the minimum extent necessary so the rest of this Agreement remains in effect.

18.7 Force Majeure. Neither party is liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) due to events beyond its reasonable control, such as a strike, blockade, war, pandemic, act of terrorism, riot, Internet or utility failures, refusal of government license or natural disaster.

18.8 Independent Contractors. The parties are independent contractors, not agents, partners or joint venturers.

18.9 Export; Trade.

18.9.1 Customer confirms that it (and each Authorized User), is not, nor is it 50% or more owned by, controlled by, or otherwise acting on behalf of for the benefit of a party or parties subject to Trade Restrictions defined as follows: (i) a party whose export privileges have been restricted, including but not limited to listing on the U.S. Bureau of Industry and Security (BIS) Entity List, BIS Denied Persons List,  BIS Unverified List, BIS Military End User List, or any other list of parties subject to export denial maintained by an applicable jurisdiction; (i) a party who is located in, ordinarily resident in, legally organized in or controlled by the government of Cuba, Iran, North Korea, Syria, Belarus, Russia, or the Crimea, Donetsk, and Luhansk regions of Ukraine; (ii) a party subject to sanctions, including but not limited to the U.S. Specially Designated Nationals and Blocked Persons List or any other sanctions the effect of which is to prohibit transactions with U.S. persons.

18.9.2 Customer shall comply with all applicable trade controls, including export control and sanctions laws and regulations, in its use of the DiPhyx Platform and the DiPhyx Platform shall not be used to circumvent any trade controls or otherwise without a government authorization when one is required under trade controls. Customer will not use the DiPhyx Platform in support of any end use or activity prohibited by the U.S. Export Administration Regulations or International Traffic in Arms Regulations, including but not limited to the proliferation of nuclear, chemical or biological weapons, missile/rocket delivery systems for such weapons, military or military-intelligence activities in Burma/Myanmar, Belarus, Cambodia, China, Venezuela or any other country subject to a U.S. or U.N arms embargo, or the development, production, use, servicing or support of a supercomputer or a semiconductor fabrication facility that produces advanced node integrated circuits in Afghanistan, Belarus, Burma (Myanmar), Cambodia, Central African Republic, China including Hong Kong & Macau (PRC), Congo (Democratic Republic of), Cuba, Cyprus, Eritrea, Haiti, Iran, Iraq, North Korea, Lebanon, Libya, Russia, Somalia, South Sudan, Sudan, Syria, Venezuela, Zimbabwe or for an entity anywhere located and ultimately headquartered in one of the foregoing countries.

18.9.3 If Customer becomes subject to Trade Restrictions or uses the DiPhyx Platform in violation of trade controls, any change in Trade Restrictions or trade controls makes continued performance under this Agreement illegal or practically infeasible, such event shall constitute grounds for immediate termination of this Agreement, in which event Customer shall not be entitled to any refund or other compensation under this Agreement.

18.9.4 Customer will not submit to DiPhyx any information controlled under the U.S. International Traffic in Arms Regulations except to the DiPhyx Platform designated for such information.

18.10 Government End-Users. Elements of the DiPhyx Platform are commercial computer software. If the user or licensee of the DiPhyx Platform is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the DiPhyx Platform or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The DiPhyx Platform was developed fully at private expense. All other use is prohibited.

19. Definitions.

“AUP” means the DiPhyx Acceptable Use Policy, the current version of which is https://diphyx.com/legal/diphyx-acceptable-use-policy/.

“Authorized User” means any employee or contractor of Customer that Customer allows to use the DiPhyx Platform on its behalf.

“CSP Infrastructure” means the hardware resources (such as CPU cores, memory and network bandwidth) and operating systems and other associated software (excluding Licensed Application Software) operated by a “cloud service provider” (“CSP”) or other entity (including Customer) on which Jobs execute. CSP Infrastructure includes “bare metal” as well as virtual hardware, “on-premises” hardware (e.g., on the premises of Customer or a third party) and third-party cloud platforms controlled by or on behalf of Customer.

“Customer Data” means any proprietary models, data or files that Customer (including its Authorized Users) uploads to the DiPhyx Platform to run a Job or results generated by a Job.

“Customer Materials” means materials, systems and other resources that Customer provides to DiPhyx in connection with Professional Services.

“Deposit” means an advance non-refundable payment to DiPhyx from Customer (the amount and duration of which is specified in an Order Form) against which usage of the DiPhyx Platform by DiPhyx Customer is applied at specified DiPhyx Pricing rates. Unused portions of an expired Deposit will be forfeited. Fees for Support, Professional Services, Licensed Application Software (i.e., Third Party Software Fees), or “Reserved Instance” CSP Infrastructure will not be applied against Deposits.

“Deposit Period” means the term set forth in an Order Form during which Customer’s Deposit is available for Customer’s use of the DiPhyx Platform.

“Documentation” means DiPhyx’s usage guidelines and standard technical documentation for the DiPhyx Platform made available by DiPhyx in the DiPhyx Platform, the current version of which is found at https://diphyx.com/docs/.

“DPA” means the Data Protection Addendum located at https://diphyx.com/legal/data-processing-agreement/.

“Fees” mean the fees payable by Customer to DiPhyx for the DiPhyx Platform at the DiPhyx Pricing rates, all Third Party Software Fees, fees for Professional Services and any Support and other ancillary services provided by DiPhyx. Fees may also include travel, lodging, meal and other expenses incurred in the course of providing Professional Services, but only if the applicable Order Form or statement of work specifies that expenses are reimbursable.

“Independent Software Vendor” or “ISV” means a (typically third-party) software vendor who has authorized Customer (directly or indirectly) to allow its Authorized Users to run Jobs on the DiPhyx Platform. An ISV may provide such authorization to Customer directly (e.g., via a written software license with Customer) or indirectly (e.g., via an On-Demand license pool administered by DiPhyx but subject to ISV license terms within the DiPhyx Platform).

“Job” means the implementation of a workflow on the DiPhyx Platform which invokes Licensed Application Software to execute on CSP Infrastructure.

“Laws” means all relevant local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and export of technical or personal data.

“Licensed Application Software” means the computer programs which ISVs have licensed to Customer (directly or indirectly) to allow Customer to run Jobs on the DiPhyx Platform. Licensed Application Software includes software uploaded onto the DiPhyx Platform by Customer, as well as commercial off-the-shelf and open-source software provided by ISVs and/or DiPhyx and installed on the DiPhyx Platform.

“Order Form” means an Order Form for access to the DiPhyx Platform, Support, Professional Services or related DiPhyx services that is (a) executed by the parties and references this Agreement, or (b) completed and submitted by Customer via the DiPhyx site.

“Policies” means the AUP, Privacy Policy, Security Policy, SLA and Support Policy.

“Privacy Policy” means the Privacy Policy at www.diphyx.com/legal/privacy-policy.

“Professional Services” means any training, enablement or other Professional Services provided by DiPhyx related to the DiPhyx Platform, as identified in an Order Form or statement of work.

“DiPhyx Offerings” means the DiPhyx Platform, Professional Services, Support and other services offered by DiPhyx to Customer.

“DiPhyx Platform” is defined in Section 1. The DiPhyx Platform includes the Documentation but does not include Professional Services deliverable, ISV Software, or CSP Infrastructure.

“DiPhyx Pricing” means the core-hour or other rates which DiPhyx charges to Customer for its usage of the DiPhyx Platform. For example, DiPhyx Pricing may include “Infrastructure Rates” (rates charged for CSP Infrastructure usage), “Platform Rates” (rates charged by DiPhyx for usage of the DiPhyx Platform), and “Other Infrastructure Fees” (e.g., for data storage and transfer, as well as use, configuration and integration of license servers and other miscellaneous components and services).

“Security Policy” means the DiPhyx Security Policy, the current version of which is www.diphyx.com/legal/data-security-policy.

“SLA” means the DiPhyx Service Level Agreement, the current version of which is www.diphyx.com/legal/sla.

“Support” means support for the DiPhyx Platform as described in the Support Policy.

“Support Policy” means the DiPhyx Support Policy, the current version of which is www.diphyx.com/legal/support-policy.

“Third-Party Software Fees” means the fees charged to Customer (directly or indirectly) for usage of the Licensed Application Software via the DiPhyx Platform. To the extent Customer relies on “On Demand” license from an ISV (e.g., via a written license or an On-Demand license pool administered by DiPhyx), DiPhyx will compute software fees owed to that ISV by Customer based on the usage of Licensed Application Software by Customer and the On-Demand rates identified in the DiPhyx Platform.“Usage Data” means usage, performance, and operations data in connection with Customer’s use of the DiPhyx Platform including without limitation technical logs, metadata and learnings.