Terms of Service

These Terms of Service (these "Terms of Service") govern your and your Authorized Users’ (defined below) access to and use of our Platform (as defined below), which is made available to you ("Customer," "you," or "your") by Mirascope, Inc. ("Mirascope," "we," "us," or "our") (each a "Party," and collectively, the "Parties").

PLEASE READ THESE TERMS OF SERVICE CAREFULLY. BY CLICKING "I AGREE" WHEN YOU SIGN UP TO ACCESS AND USE OUR PLATFORM OR OTHERWISE MANIFESTING ASSENT TO THESE TERMS OF SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE LEGALLY BOUND BY THESE TERMS OF SERVICE, AND THE TERMS AND CONDITIONS OF OUR PRIVACY POLICY (THE "PRIVACY POLICY"), WHICH IS HEREBY INCORPORATED INTO THESE TERMS OF SERVICE AND MADE A PART HEREOF BY REFERENCE (COLLECTIVELY, THE "AGREEMENT"). IF YOU DO NOT AGREE TO ANY OF THE TERMS IN THIS AGREEMENT, THEN PLEASE DO NOT USE THE PLATFORM.

If you accept or agree to the Agreement on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to the Agreement and, in such event, "you" and "your" will refer and apply to that company or other legal entity.

We reserve the right, at our sole discretion, to modify, discontinue, or terminate the Platform, or to modify the Agreement, at any time and without prior notice. If we modify the Agreement, we will post the modification on our website and/or on the Platform. By continuing to access or use the Platform after we have posted such modifications, you are indicating that you agree to be bound by the modified Agreement. If the modified Agreement is not acceptable to you, your only recourse is to cease using the Services.

THE SECTIONS BELOW TITLED "BINDING ARBITRATION" AND "CLASS ACTION WAIVER" CONTAIN A BINDING ARBITRATION AGREEMENT AND CLASS ACTION WAIVER. THEY AFFECT YOUR LEGAL RIGHTS. PLEASE READ THEM.

Capitalized terms not defined in these Terms of Service shall have the meaning set forth in our Privacy Policy.

1. DEFINITIONS. The definitions for some of the defined terms used in this Agreement are set forth below. The definitions for other defined terms are set forth elsewhere in this Agreement.

   1.1. "Affiliate" means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.

   1.2. "Applicable Law" means, with respect to any Party, any federal, state, or local statute, law, ordinance, rule, administrative interpretation, regulation, order, writ, injunction, directive, judgment, decree, or other requirement of any international, federal, state, or local court, administrative agency, or commission or other governmental or regulatory authority or instrumentality, domestic or foreign, applicable to such Party or any of its properties, assets, or business operations.

   1.3. "Authorized User" means Customer’s employees, contractors, or agents authorized by Customer to access and use the Platform pursuant to the terms and conditions of this Agreement; provided, however, that any contractors’ or agents’ access to and use of the Platform will be limited to their provision of services to Customer. You are responsible for all acts and omissions of Authorized Users and any other person who accesses and uses the Platform using any of your or any Authorized Users’ login credentials.

   1.4. "Customer Data" means (i) any data and information that you or your Authorized Users submit to the Platform; and (ii) Input.

   1.5. "Customer Site" means any location owned or leased solely by Customer or an Affiliate or that portion of any shared space, such as a shared data center, attributable solely to Customer or such Affiliate on which the Software may be installed.

   1.6. "Documentation" means the manuals, specifications, and other materials describing the functionality, features, and operating characteristics, and use of the Platform as provided or made available by Mirascope to Customer whether in a written or electronic form.

   1.7. "Harmful Code" means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Platform, or any other associated software, firmware, hardware, computer system, or network (including, without limitation, "Trojan horses," "viruses," "worms," "time bombs," "time locks," "devices," "traps," "access codes," or "drop dead" or "trap door" devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Platform to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with the operations of the Platform.

   1.8. "Input" means any and all information, content or data that you or your Authorized Users input to the Platform for processing.

   1.9. "Maximum Number of Authorized Users" means the maximum number of Authorized Users that are allowed to access and use the Platform under the subscription plan you select.

   1.10. "Output" means data generated by the Platform as a result of processing the Input.

   1.11. "Platform" means our proprietary open source AI engineering platform: Lilypad and all Updates thereto, together with all Documentation.

   1.12. "Mirascope Hosted SaaS Solution" means the Platform that is delivered and managed by Mirascope as software-as-a-service over the internet.

   1.13. "Self-Hosted SaaS Solution" means Software that is installed, hosted and maintained by Customer instead of Mirascope.

   1.14. "Software" means the object code form of the Platform licensed to Customer for installation at Customer Sites. Software does not include any source code of the Platform.

   1.15. "Sensitive Information" means credit or debit card numbers; financial account numbers or wire instructions, government issued identification numbers (such as Social Security numbers, passport numbers), biometric information, protected health information, personal information of children protected under any child data protection laws, and any other information or combinations of information that falls within the definition of "special categories of data" under Applicable Law relating to privacy and data protection.

   1.16. "Subscription Term" means the duration of the subscription for the Platform that you purchase.

   1.17. "Updates" means any generally available corrections, fixes, patches, workarounds, and minor modifications denominated by version changes to the right of the decimal point (e.g., v3.0 to v3.1) to the Platform that Mirascope provides to Customer under this Agreement. All version numbers shall be reasonably determined by Mirascope in accordance with normal industry practice. Updates do not include additions or modifications that Mirascope considers to be a separate product or for which Mirascope charges its customers extra or separately.

   1.18. "Usage Data" means the data that we collect in connection with our monitoring of the performance and use of the Platform by you and your Authorized Users, including, without limitation, date and time that you access the Platform, the portions of the Platform visited, the frequency and number of times such pages are accessed, the number of times the Platform is used in a given time period and other usage and performance data.

2. ACCESS TO THE PLATFORM

   2.1. Right to Access the Mirascope Hosted SaaS Solution. If you have purchased a subscription to the Mirascope Hosted SaaS Solution, then subject to the terms and conditions of this Agreement, we hereby grant you during the Subscription Term a limited, non-exclusive, non-transferable, non-sublicensable, revocable right and license to permit your Authorized Users (but no more than Maximum Number of Authorized Users) to access and use the Mirascope Hosted SaaS Solution solely for your internal business purposes.

   2.2. Right to Access the Self-Hosted SaaS Solution. If you have purchased a subscription to the Self-Hosted Hosted SaaS Solution, then subject to the terms and conditions of this Agreement, we hereby grant you during the Subscription Term a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (i) install and execute the Software at Customer Sites only; and (ii) permit your Authorized Users (but no more than Maximum Number of Authorized Users) to access and use the Self-Hosted SaaS Solution solely for your internal business purposes.

   2.3. Delivery. Customer will receive access to the Mirascope Hosted SaaS Solution via a website hosted by Mirascope and Software via electronic delivery.

   2.4. Modifications. We reserve the right to modify the Platform, from time to time by adding, deleting, or modifying features to improve the user experience or for other business purposes. We further reserve the right to discontinue any feature of the Platform at any time during the Term at our sole and reasonable discretion. Any such modification or discontinuance will not materially decrease the overall functionality of the Platform.

   2.5. Beta Features. From time to time, we may invite Customer to try "beta" features or functionalities of the Platform which are not generally available to our customers for use at no charge. Customer may accept or decline any such trial in its sole discretion. Such beta features are for evaluation purposes only and not for use, are not considered part of the Platform under this Agreement, are not supported, and may be subject to additional terms. Unless otherwise expressly agreed to by us, any beta feature trial period will expire upon the date that a version of the beta feature becomes generally available to all of our customers for use or upon the date that we elect to discontinue such beta feature. We may discontinue beta features at any time in our sole discretion and may never make them generally available as part of the Platform. We will have no liability to Customer or any third party for any harm or damage arising out of or in connection with any use of a beta feature, and Customer’s use of any beta feature is at Customer’s own risk.

   2.6. Restrictions on Use. You shall not (and shall not authorize, permit, or encourage any third party to): (i) allow anyone other than Authorized Users to use the Platform; (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Platform; (iii) modify, adapt, or translate the Platform, or any portion or component thereof; (iv) make any copies of the Platform, or any portion or component thereof, except as permitted under this Agreement; (v) resell, distribute, or sublicense the Platform, or any portion or component thereof, or use any of the foregoing for the benefit of anyone other than Customer; (vi) remove or modify any proprietary markings or restrictive legends placed on the Platform; (vii) use the Platform, or any portion or component thereof in violation of any Applicable Law, in order to build a competitive product or service, or for any purpose not specifically permitted in this Agreement; (viii) introduce, post, or upload to the Platform any Harmful Code; (ix) use the Platform in connection with service bureau, timeshare, service provider or like activity whereby you operate the Platform for the benefit of a third party; or (ix) circumvent any processes, procedures, or technologies that we have put in place to safeguard the Platform.

   2.7. Documentation. Customer may copy and use (and permit the Authorized Users to copy and use) the Documentation solely in connection with the use of the Platform under this Agreement.

   2.8. Third-Party Items. The Platform may include, or be dependent on, certain third-party data, open source software components, application programming interfaces, and other items (the "Third-Party Items"). Third-Party Items shall not include any Third-Party AI Models. Mirascope agrees that throughout the Subscription Term, Mirascope will ensure that it at all times maintains all rights and licenses in and to the Third-Party Items that are necessary to ensure that Customer and its Authorized Users can use the Platform in the manner contemplated in this Agreement. Mirascope will provide support for the Third-Party Items in the same manner and scope for which it provides support for the Platform hereunder. MIRASCOPE, NOT BEING THE OWNER, OPERATOR, SUPPLIER, OR PRODUCER OF THE THIRD-PARTY ITEMS NOR THEIR AGENT, DOES NOT ENDORSE ANY THIRD-PARTY ITEMS, AND MAKES NO EXPRESS OR IMPLIED WARRANTY OF ANY KIND WHATSOEVER WITH RESPECT TO THE THIRD-PARTY ITEMS AND DISCLAIMS ANY SUCH WARRANTIES THAT MIGHT OTHERWISE EXIST.

   2.9. Third-Party AI Models. The Platform may use Third-Party AI Models to provide the AI features and functionality. You acknowledge and understand that your use of such AI features and functionality will be governed by the terms and conditions of third parties that provide such Third-Party AI Models ("Third-Party AI Models Terms and Conditions") and your Input may be used by such third parties in accordance with such Third-Party AI Models Terms and Conditions. Mirascope has no control over the use of the Input, thus, any use of such is at your own risk and Mirascope does not represent, undertake or warrant to any security or control of or to the Input.

   2.10. Onboarding of Authorized Users. Each Authorized User will be required to create an account, which includes a username, a password, and certain additional information, including a valid email address, that will assist in authenticating the Authorized User’s identity when he or she logs into the Platform in the future (collectively, "Log-in Credentials"). When creating an account, an Authorized User must provide true, accurate, current, and complete information. You are solely responsible for the confidentiality and use of Authorized Users’ Log-in Credentials, as well as for any use, misuse, or communications entered through the Software. You shall promptly inform us of any need to deactivate a username, password, or other Log-in Credential. We reserve the right to delete or change Authorized Users’ Log-in Credentials at any time and for any reason. We will not be liable for any unauthorized use of an Authorized User’s account.

   2.11. Support Services. Mirascope shall use commercially reasonable efforts to provide you and your Authorized Users problem resolution and technical support in connection with the Platform during the Subscription Term (the "Support Services"). In order to provide Support Services for Self-Hosted SaaS Solution, Mirascope may require access to your instance of Self-Hosted SaaS Solution in order to debug and resolve any issues you may encounter. Such access is enabled by default, but you may opt-out by disabling it from the "Settings" of the Self-Hosted SaaS Solution. By disabling the access, you understand and agree that you may not be able to receive all the benefits of the Support Services provided by Mirascope under this Agreement.

   2.12. Hosting the Mirascope Hosted SaaS Solution. During the Subscription Term, we, or our contractors, shall host the Mirascope Hosted SaaS Solution, such that the Mirascope Hosted SaaS Solution is available for use by your Authorized Users. We and/or our contractors shall periodically monitor the Mirascope Hosted SaaS Solution to optimize performance, and shall use commercially reasonable efforts to minimize any downtime, other than for scheduled maintenance or downtime caused by reasons beyond our reasonable control, including, but not limited to, acts of God, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, fire, flood, strike or other labor disturbance, unavailability of or interruption or delay in telecommunications or third-party services, or virus attacks or hackers. We will use commercially reasonable efforts to notify you of any unavailability or other issue with the Mirascope Hosted SaaS Solution. You and your Authorized Users will be responsible for obtaining Internet connections and other third-party software and services necessary for them to access the Mirascope Hosted SaaS Solution.

   2.13. Overage. At any time during the Subscription Term, if Customer usage exceeds its subscription plan ("Overage"), Customer will correct the Overage by purchasing additional licenses within fifteen (15) days of the Overage. If Customer does not purchase licenses for the Overage within such fifteen (15) day period, Mirascope may suspend Customer’s use of the Platform by providing five (5) days prior notice. Customer agrees (i) that Mirascope may access to view Self-Hosted SaaS Solution and (ii) to provide Mirascope with all information reasonably required for the purpose of verifying Customer’s compliance with subscription plan usage, which may be in the form of a formal certification.

   2.14. Privacy Policy. Your use of the Platform may involve the transmission to us of certain personal information. Our policies with respect to the collection and use of such personal information are governed according to our Privacy Policy, located at https://mirascope.com/privacy, which is hereby incorporated by reference in its entirety.

3. CUSTOMER DATA; OUTPUT.

   3.1. Customer Data. Subject to the terms and conditions of this Agreement, Customer hereby grants us a non-exclusive, worldwide, fully paid-up, royalty-free right and license, with the right to grant sublicenses, to reproduce, execute, use, store, archive, modify, perform, display, and distribute the Customer Data during the Subscription Term for the purpose of performing its obligations under this Agreement. You will have sole responsibility for the accuracy, quality, and legality of your Customer Data.

   3.2. Input and Output. Customer is solely responsible for ensuring that the Input and Output complies with Applicable Laws and this Agreement. You may use the Input and Output for any legal and lawful purposes, at your own risk. Due to the nature of artificial intelligence, Output may not be unique across all users and the AI features and functionality of the Platform may generate the same or similar Output for different users or third parties.

   3.3. Aggregated Data. Notwithstanding anything to the contrary herein, we may use, and may permit our third-party service providers to access and use, the Customer Data, as well as any Usage Data that we may collect, in an anonymous and aggregated form ("Aggregate Data") for the purposes of operating, maintaining, managing, and improving our products and services including the Platform. Aggregate Data does not identify Customer or any individual (including any Authorized User). You hereby agree that we may collect, use, publish, disseminate, sell, transfer, and otherwise exploit such Aggregate Data.

   3.4. Data Security. We (and any third-party hosting provider that we may engage) will employ commercially reasonable physical, administrative, and technical safeguards to secure the Customer Data in the Mirascope Hosted SaaS Solution, from unauthorized use or disclosure. You acknowledge and agree that you are responsible for implementing and maintaining commercially reasonable physical, administrative and technical safeguard to security the Customer Data in the Self-Hosted SaaS Solution from unauthorized use or disclosure.

4. INTELLECTUAL PROPERTY

As between the Parties, all right, title, and interest in and to the Platform, the Aggregate Data, and the Usage Data, including all modifications, improvements, adaptations, enhancements, derivatives, or translations made thereto or therefrom, and all intellectual property rights therein, are and will remain the sole and exclusive property of Mirascope. Subject to Section 3, all right, title, and interest in and to the Customer Data and all intellectual property rights therein, will be and remain Customer’s sole and exclusive property. As between the Parties and to the extent permitted by the Third-Party AI Model Terms and Conditions, we hereby grant you the right to use the Output in accordance with this Agreement.

5. RESTRICTIONS

The Platform is available only for individuals aged 18 years or older. If you are under 18 years of age, then please do not access and/or use the Platform. By entering into this Agreement, you represent and warrant that you are 18 years or older.

6. FEEDBACK

We welcome and encourage you to provide feedback, comments, and suggestions for improvements to the Platform and our services ("Feedback"). Although we encourage you to e-mail us, we do not want you to, and you should not, e-mail us any content that contains confidential information. With respect to any Feedback you provide, we shall be free to use and disclose any ideas, concepts, know-how, techniques, or other materials contained in your Feedback for any purpose whatsoever, including, but not limited to, the development, production and marketing of products and services that incorporate such information, without compensation or attribution to you.

7. REPRESENTATIONS AND WARRANTIES

You represent and warrant that (i) you have all rights and permissions, and have provided all notices and obtained all consents that are necessary for us to process the Customer Data; (ii) use of Customer Data in accordance with this Agreement shall not violate or misappropriate any intellectual property, privacy, publicity, contractual or other rights of any third party; and (iii) you will not input, submit, or otherwise process any Sensitive Information through the Platform.

8. NO WARRANTIES; LIMITATION OF LIABILITY

ALTHOUGH CERTAIN DATA AND MATERIALS THAT MAY BE GENERATED BY THE PLATFORM CAN BE USED AS AN AID TO CUSTOMER AND ITS AUTHORIZED USERS TO MAKE INFORMED BUSINESS DECISIONS, SUCH DATA AND MATERIALS ARE NOT MEANT TO SUBSTITUTE LEGAL OR BUSINESS ADVICE OR CUSTOMER’S OR ANY AUTHORIZED USER’S EXERCISE OF THEIR OWN BUSINESS JUDGMENT. ANY SUCH DECISIONS OR JUDGMENTS ARE MADE AT SUCH PARTY’S SOLE DISCRETION AND ELECTION. YOU ACKNOWLEDGE AND AGREE THAT THE PLATFORM HAS NOT BEEN DESIGNED TO PROCESS OR MANAGE SENSITIVE INFORMATION, AND YOU AND YOUR AUTHORIZED USERS’ AGREE NOT TO USE THE PLATFORM TO COLLECT, MANAGE, OR OTHERWISE PROCESS ANY SENSITIVE INFORMATION. WE WILL NOT HAVE, AND WE SPECIFICALLY DISCLAIM ANY LIABILITY THAT MAY RESULT FROM YOUR OR YOUR AUTHORIZED USER’S USE OF THE PLATFORM TO COLLECT, MANAGE OR OTHERWISE PROCESS SENSITIVE INFORMATION. THE PLATFORM, ANY BETA FEATURES, THEIR COMPONENTS, ANY DOCUMENTATION, ANY THIRD-PARTY ITEMS AND ANY THIRD-PARTY AI MODELS, AND ANY OTHER MATERIALS AND INFORMATION ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND NEITHER MIRASCOPE NOR MIRASCOPE’S SUPPLIERS MAKE ANY WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, AND MIRASCOPE HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.

MIRASCOPE MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE ACCURACY OF ANY OUTPUTS. YOU ARE SOLELY RESPONSIBLE FOR EVALUATING THE ACCURACY OF ANY OUTPUT AND YOU SHALL NOT RELY ON MIRASCOPE TO DO SO. THE OUTPUT MAY NOT REFLECT CURRENT, CORRECT OR COMPLETE INFORMATION AND YOU, YOUR AUTHORIZED USERS MAY RELY ON THE OUTPUT AT YOUR AND THEIR SOLE RISK. TO THE EXTENT THAT MIRASCOPE AND MIRASCOPE’S SUPPLIERS MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.

WITHOUT LIMITING THE FOREGOING, WE DO NOT WARRANT, GUARANTEE OR MAKE ANY REPRESENTATION, NOR SHALL WE BE RESPONSIBLE FOR (A) THE CORRECTNESS, ACCURACY, RELIABILITY, COMPLETENESS OR CURRENCY OF THE PLATFORM, ANY BETA FEATURES, THEIR COMPONENTS, ANY DOCUMENTATION, ANY THIRD-PARTY ITEMS AND ANY THIRD-PARTY AI MODELS, AND ANY OTHER MATERIALS AND INFORMATION PROVIDED HEREUNDER; OR (B) ANY RESULTS ACHIEVED OR ACTION TAKEN BY YOU IN RELIANCE ON THE PLATFORM, ANY BETA FEATURES, THEIR COMPONENTS, ANY DOCUMENTATION, ANY THIRD-PARTY ITEMS AND ANY THIRD-PARTY AI MODELS, AND ANY OTHER MATERIALS AND INFORMATION PROVIDED HEREUNDER. ANY DECISION, ACT OR OMISSION OF YOURS THAT IS BASED ON THE PLATFORM, ANY BETA FEATURES, THEIR COMPONENTS, ANY DOCUMENTATION, ANY THIRD-PARTY ITEMS AND ANY THIRD-PARTY AI MODELS, AND ANY OTHER MATERIALS AND INFORMATION PROVIDED HEREUNDER IS AT YOUR OWN AND SOLE RISK. THE PLATFORM, ANY BETA FEATURES, THEIR COMPONENTS, ANY DOCUMENTATION, ANY THIRD-PARTY ITEMS AND ANY THIRD-PARTY AI MODELS, AND ANY OTHER MATERIALS AND INFORMATION PROVIDED HEREUNDER IS PROVIDED AS A CONVENIENCE ONLY AND DOES NOT REPLACE THE NEED TO REVIEW ITS ACCURACY, COMPLETENESS AND CORRECTNESS.

IN CONNECTION WITH ANY WARRANTY, CONTRACT, OR COMMON LAW TORT CLAIMS: (I) WE SHALL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, LOST PROFITS, LOST REVENUES, OR DAMAGES RESULTING FROM LOST DATA OR BUSINESS INTERRUPTION RESULTING FROM THE USE OR INABILITY TO ACCESS AND USE THE PLATFORM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (II) ANY DIRECT DAMAGES THAT YOU MAY SUFFER AS A RESULT OF YOUR USE OF THE PLATFORM, SHALL BE LIMITED TO THE TOTAL FEES PAID AND PAYABLE TO US BY YOU IN THE IMMEDIATELY PRECEDING THREE (3) MONTH PERIOD FROM THE DATE ON WHICH THE CLAIM ARISES. ANY CLAIMS MADE BY YOU IN CONNECTION WITH YOUR USE OF THE PLATFORM MUST BE BROUGHT BY YOU WITHIN ONE (1) YEAR OF THE DATE ON WHICH THE EVENT GIVING RISE TO SUCH ACTION OCCURRED.

9. INDEMNIFICATION.

You will indemnify, defend, and hold Mirascope, its affiliates, and our and their respective shareholders, members, officers, directors, employees, agents, and representatives (collectively, "Mirascope Indemnitees") harmless from and against any and all damages, liabilities, losses, costs, and expenses, including reasonable attorney’s fees (collectively, "Losses") incurred by any Mirascope Indemnitee in connection with a third-party claim, action, or proceeding (each, a "Claim") arising from your (i) breach of this Agreement, including but not limited to, any breach of your representations and warranties; (ii) Customer Data; (iii) negligence, gross negligence, willful misconduct, fraud, misrepresentation or violation of Applicable Laws; or (iv) violation of any third-party right, including without limitation any copyright, trademark, property, or privacy right; provided, however, that the foregoing obligations shall be subject to our: (i) promptly notifying you of the Claim; (ii) providing you, at your expense, with reasonable cooperation in the defense of the Claim; and (iii) providing you with sole control over the defense and negotiations for a settlement or compromise.

10. EXTERNAL SITES

The Platform may contain links to third-party websites ("External Sites"). These links are provided solely as a convenience to you and not as an endorsement by us of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the website administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. We are not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.

11. FEES AND PAYMENT

In exchange for your access to and use of the Platform, you agree to pay the fees for the applicable subscription plan that you selected at registration ("Fees"). We may use a third-party payment vendor ("Third-Party Payment Processor") to process your payment. You warrant and represent that you are the valid owner or an authorized user, of the credit card or payment account that you provide to such Third-Party Payment Processor, and that all information you provide is accurate. If payment is not received from your credit card issuer or any other payment facility, you hereby agree to pay all amounts due upon demand. You agree to pay all costs of collection, including attorney’s fees and costs, on any outstanding balance.

IT IS IMPORTANT TO NOTE THAT WHEN YOU SIGN UP FOR A SUBSCRIPTION (MONTHLY, ANNUALLY, OR OTHERWISE), YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW UNTIL YOU CANCEL IT. YOU MAY CANCEL AT ANY TIME BY FOLLOWING THE INSTRUCTIONS IN YOUR ACCOUNT OR BY CONTACTING US AT [email protected] AND THE CANCELLATION WILL TAKE EFFECT AT THE EXPIRATION OF THE THEN-CURRENT TERM. AGAIN, IF YOU DO NOT CANCEL, THEN YOUR SUBSCRIPTION WILL AUTOMATICALLY RENEW UNDER THE SAME SUBSCRIPTION. THERE ARE NO REFUNDS FOR CANCELLATION, AND YOU UNDERSTAND AND AGREE THAT YOU SHALL RECEIVE NO REFUND OR EXCHANGE FOR ANY UNUSED TIME OF THE SUBSCRIPTION ACCORDING TO THE CHOSEN PREFERENCES (EITHER A MONTHLY OR A YEARLY SUBSCRIPTION).

We reserve the right to institute new or additional fees, at any time upon notice to you.

12. COMPLIANCE WITH APPLICABLE LAWS

The Platform is based in the United States. We make no claims concerning whether the Platform may be viewed or be appropriate for use outside of the United States. If you access the Platform from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.

13. TERM AND TERMINATION

Your right to access and use the Platform will commence upon your acceptance of these Terms of Service and will continue for the duration of the subscription plan that you selected at registration (the "Initial Term"). Thereafter, this Agreement will automatically renew for consecutive terms equivalent to the duration of your subscription plan (each, a "Renewal Term" and collectively, with the Initial Term, the "Term"), unless you notify us at least thirty (30) days prior to the expiration of the then-current renewal term of your intention to not renew.

If you fail to pay the applicable Fees when due, we reserve the right to downgrade your subscription to the Platform to the free plan. You shall retain access to Platform offered under the free plan, but premium features and benefits associated with the paid subscription will no longer be available. We may reinstate your paid subscription upon receipt of the outstanding payment in full.

Upon termination or expiration of this Agreement: (i) you will stop all access to and use of the Platform; provided, however, if you have purchased a subscription to the Self-Hosted Hosted SaaS Solution, then you will retain the right to access and use the free version of the Self-Hosted Hosted SaaS Solution; (ii) you will promptly pay all unpaid Fees and applicable taxes due through the date of such termination or expiration; and (iii) with respect to Mirascope Hosted SaaS Solution and provided all Fees due under the Agreement in connection with Mirascope Hosted SaaS Solution have been paid, Customer will have up to thirty (30) days from the effective date of the termination or expiration of this Agreement to retrieve all Customer Data from the Platform and thereafter, Mirascope will have no obligation to retain Customer Data or make Customer Data available to Customer. Your continued access to the free version of the Self-Hosted Hosted SaaS Solution as per (ii) is subject to your and your Authorized Users’ compliance with the terms and conditions of this Agreement. Mirascope shall not be obligated to provide any Support Services for the free version and Mirascope reserves the right to modify or discontinue the free version at its sole discretion without prior notice.

We reserve the right to change, suspend, discontinue or terminate your access and use of all or any part of the Platform at any time without prior notice or liability. Sections 1, 3, 4, 6, 7, 8, 9, 11, and 13 -20 shall survive the termination of this Agreement.

14. BINDING ARBITRATION

In the event of a dispute arising under or relating to this Agreement, the Platform, or any products or services (each, a "Dispute"), such dispute will be finally and exclusively resolved by binding arbitration governed by the Federal Arbitration Act ("FAA"). NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL, EXCEPT EITHER PARTY MAY BRING ITS CLAIM IN ITS LOCAL SMALL CLAIMS COURT, IF PERMITTED BY THAT SMALL CLAIMS COURT RULES AND IF WITHIN SUCH COURT’S JURISDICTION. ARBITRATION IS DIFFERENT FROM COURT, AND DISCOVERY AND APPEAL RIGHTS MAY ALSO BE LIMITED IN ARBITRATION. All disputes will be resolved before a neutral arbitrator selected jointly by the parties, whose decision will be final, except for a limited right of appeal under the FAA. The arbitration shall be commenced and conducted by JAMS pursuant to its then current Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those rules, or, where appropriate, pursuant to JAMS’ Streamlined Arbitration Rules and Procedures. All applicable JAMS’ rules and procedures are available at the JAMS website www.jamsadr.com. Each party will be responsible for paying any JAMS filing, administrative, and arbitrator fees in accordance with JAMS rules. Judgment on the arbitrator’s award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitration may be conducted in person, through the submission of documents, by phone, or online. If conducted in person, the arbitration shall take place in the United States county where you reside. The parties may litigate in court to compel arbitration, to stay a proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. The parties shall cooperate in good faith in the voluntary and informal exchange of all non-privileged documents and other information (including electronically stored information) relevant to the Dispute immediately after commencement of the arbitration. Nothing in this Agreement will prevent us from seeking injunctive relief in any court of competent jurisdiction as necessary to protect our proprietary interests.

15. CLASS ACTION WAIVER

You agree that any arbitration or proceeding shall be limited to the Dispute between us and you individually. To the full extent permitted by law, (i) no arbitration or proceeding shall be joined with any other; (ii) there is no right or authority for any Dispute to be arbitrated or resolved on a class action-basis or to utilize class action procedures; and (iii) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons. YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST US ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING.

16. EQUITABLE RELIEF

You acknowledge and agree that in the event of a breach or threatened violation of our intellectual property rights and confidential and proprietary information by you, we will suffer irreparable harm and will therefore be entitled to injunctive relief to enforce this Agreement. We may, without waiving any other remedies under this Agreement, seek from any court having jurisdiction any interim, equitable, provisional, or injunctive relief that is necessary to protect our rights and property pending the outcome of the arbitration referenced above. You hereby irrevocably and unconditionally consent to the personal and subject matter jurisdiction of the federal and state courts in the State of California for purposes of any such action by us.

17. CONTROLLING LAW; EXCLUSIVE FORUM

The Agreement and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. The Parties hereby consent and agree to the exclusive jurisdiction of the state and federal courts located in the State of California for all suits, actions, or proceedings directly or indirectly arising out of or relating to this Agreement, and waive any and all objections to such courts, including but not limited to, objections based on improper venue or inconvenient forum, and each party hereby irrevocably submits to the exclusive jurisdiction of such courts in any suits, actions, or proceedings arising out of or relating to this Agreement

18. FORCE MAJEURE.

Mirascope will not be deemed to be in breach of this Agreement for any failure or delay in performance to the extent caused by reasons beyond its reasonable control, including, but not limited to, acts of God, acts of any governmental body, war, insurrection, sabotage, armed conflict, terrorism, embargo, fire, flood, strike or other labor disturbance, COVID-19, quarantine restrictions, freight embargoes, unavailability of or interruption or delay in telecommunications or third-party services, or virus attacks or hackers (collectively, "Force Majeure Event"). When such Force Majeure Event arises, Mirascope shall promptly notify you of its failure to perform, describing the cause of failure and how it affects performance, and the anticipated duration of the inability to perform. For the avoidance of doubt, nothing in this Section 18 shall be construed to excuse any payment obligations hereunder.

19. EXPORT CONTROL LAWS.

Our Platform may be subject to export control laws and regulations of the United States. You hereby certify that you and your Authorized Users will comply with all U.S. export control laws and regulations including but not limited to the International Traffic in Arms Regulations ("ITAR") (22CFR 120-130), Export Administration Regulations ("EAR") (15CFR 730-774) and regulations administered by the U.S. Treasury Department’s Office of Foreign Assets Control ("OFAC") (31CFR 500598) (collectively, the "Export Control Laws"). You and your Authorized Users agree not to, directly or indirectly, use, sell, supply, export, reexport, transfer, divert, release, or otherwise dispose of the Software and any products, software, or technology (including products derived from or based on such technology) received from Mirascope under this Agreement to any destination, entity, or person or for any end use prohibited by applicable Export Controls Laws.

20. MISCELLANEOUS.

You may not assign any of your rights, duties, or obligations under these Terms of Service to any person or entity, in whole or in part, without written consent from Mirascope. Our failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against us unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance. Except as expressly agreed by us and you in writing, the Agreement constitutes the entire agreement between you and us with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. You acknowledge and agree that there are no third-party beneficiaries under this Agreement. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of our successors, assigns, licensees, and sublicensees.

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