Terms of Service

These Terms of Service are between Artemis Software Works, Inc. ("Company," "we," "our," or "us") and the customer accessing and using Surfboard ("Customer," "you," or "your"). This Terms of Service takes effect on the earlier of: (a) your first access to or use of Surfboard, including our website at www.surfboard.ai; or (b) the date of your first purchase of Surfboard services (the "Effective Date"). If you are a business or other organizational entity (an "Entity"), the individual accepting these Terms of Service represents and warrants that they have the full legal power and authority to bind that Entity to these Terms of Service. If you are not eligible, or do not agree to these Terms of Service, you do not have our permission to use Surfboard. If these Terms of Service are being entered into by an Entity, then "Customer," "you," and "your" refer to that Entity.

By clicking "I AGREE", downloading, installing, accessing, using Surfboard, or otherwise indicating your acceptance, you agree to be bound by these Terms of Service, including our Privacy Policy and any terms incorporated by reference (collectively, these "Terms"). Both you and the Company explicitly agree that these Terms are legally binding.

1. THE SURFBOARD SERVICE

1.1. Overview

Company provides a hosted artificial intelligence assistant service ("Surfboard"). Surfboard captures, organizes, and synchronizes information and updates across integrated tools and communications in individual and team workspaces (each, a "Workspace").

1.2. Permitted Use

Subject to Customer's compliance with these Terms, Customer may access and use Surfboard solely for its internal business purposes in accordance with any provided documentation, our Trust Center, available at https://trust.surfboard.ai, our Acceptable Use Policy, available at https://www.surfboard.ai/aup, these Terms, our website, and any other limitations we provide. By agreeing to these Terms, Customer represents and warrants to us that: (a) Customer has not previously been suspended or removed from Surfboard; and (b) Customer's use of Surfboard is in compliance with all applicable Laws.

1.3. Accounts and Registration

To access Surfboard, Customer must register for an account. Customer may register using log-in credentials selected by Customer or login with a supported third-party identity provider account (e.g., Google or Microsoft) ("Log-in Credentials"). When you register for an account, you may be required to provide us with some information about yourself, such as your name, email address, or other contact information. You agree that the information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you believe that your account is no longer secure, then you must immediately notify us at support@surfboard.ai. Use of your Log-in Credentials may also subject you to the terms of service and privacy policies of the applicable third-party identity provider. Company makes no representations or warranties about the security or privacy practices of any third-party identity providers.

1.4. Entity Access

If Customer's Log-in Credentials include an email address using a domain owned by Customer's employer or another third party entity (other than a third party email provider, e.g., Google's Gmail), Customer's account may be linked to that organization's Surfboard enterprise account, and the organization's Administrator may be able to monitor and control the account, including having access to Customer's Outputs and Customer Data, as outlined in Section 2 (Entity Workspaces). Company will provide notice to Customer before linking Customer's account to an organization's enterprise account. However, if the organization is responsible for notifying Customer, or has already informed Customer, that it may monitor and control your account, Company may not provide additional notice.

1.5. Entity Users

If Customer is an Entity, only Customer's employees or contractors that Customer authorizes to use Surfboard on its behalf (each, an "Entity User") may access and use Surfboard. Entity Users may be required to use Log-in Credentials designated by the Entity. Customer is accountable for its Entity Users' adherence to these Terms and for all activity conducted under its Entity Users' Log-in Credentials. Customer will immediately notify Company at support@surfboard.ai upon becoming aware of any compromised Log-in Credentials. Company may collect certain Entity User information, such as an Entity User's name, email address, or other contact information, when creating Log-in Credentials or otherwise providing Surfboard in accordance with these Terms of Service.

1.6. Guest Users

Customer may have the ability to invite third parties to access one or more of Customer's Workspaces (each a, "Guest User"). Guest Users' access and permissions are defined by the configuration of Customer's Workspace and Guest Users may be restricted to specific parts or features of the Workspace and may have limited capabilities compared to full users. Guest Users may be required to register for an account and accept these Terms prior to accessing the Workspace. Customer is accountable for its Guest Users' adherence to these Terms and for all activity conducted under its Guest Users' Log-in Credentials. Customer acknowledges that it may limit, modify, or revoke Guest User access at any time and, where applicable, set expiration or access controls on Guest User accounts. Customer may revoke a Guest User's access at any time. Guest Users' access may be limited or restricted at Customer's discretion. Customer shall ensure that Guest Users are only granted access to those portions of the Workspace that are necessary for their purposes and shall promptly terminate Guest Users' access upon expiration of the need for access or upon any violation of these Terms by a Guest User.

1.7. Restrictions

Customer will not (and will not permit anyone else to), directly or indirectly, do any of the following:

• provide access to, distribute, sell, or sublicense Surfboard to a third party (other than Entity Users and Guest Users);
• use Surfboard or Output to develop a similar or competing product or service;
• reverse engineer, decompile, disassemble, or seek to access the source code or non-public APIs associated with Surfboard, except to the extent such a restriction is not permitted under Laws (and then only with prior notice to Company);
• modify or create derivative works of Surfboard or copy any element of Surfboard;
• remove or obscure any proprietary notices in Surfboard;
• publish benchmarks or performance information about Surfboard;
• engage in unlawful robocalling, spam, or harassment;
• interfere with the operation of Surfboard, circumvent any access restrictions, or conduct any security or vulnerability test of Surfboard;
• transmit any viruses or other harmful materials to Surfboard;
• take any action that risks harm to others or to the security, availability, or integrity of Surfboard;
• use Surfboard in connection with making any lending or leasing financial decision; or
• access or use Surfboard or Output in a manner that violates any applicable relevant local, state, federal or international laws, regulations and conventions, including those related to data privacy or data transfer, telemarketing, consumer protection, algorithmic discrimination or automated decision-making, international communications, or export of data ("Laws") or these Terms.

1.8. API Access

Company may make available one or more application programming interfaces ("APIs") for Surfboard. If Company chooses to make APIs available to Customer, subject to Customer's compliance with these Terms, the documentation, and any additional limitations expressed by the Company, Company grants Customer a limited, non-transferable, revocable, non-exclusive, non-sublicensable right and license for Customer to access and use (including making calls to) the APIs for the purpose of interconnecting and communicating with Surfboard. Company reserves the right to monitor Customer's use of the APIs and may restrict Customer's access to the APIs or limit the volume of API calls that Customer may make, including if Customer's use exceeds Company's API call limits or has a negative impact on performance of Surfboard. Company may, but has no obligation to, update, upgrade, or otherwise modify its APIs and features or functionality thereof. For avoidance of doubt, Customer's right to use the APIs is subject to Section 1.7 (Restrictions).

1.9. Support

During the Term, Company will use commercially reasonable efforts to: (a) provide Surfboard in a manner that minimizes errors and interruptions in accessing Surfboard; and (b) provide, with respect to issues and questions arising from the operation of Surfboard, technical support to Customer (and Entity Users, if applicable) in accordance with Company's then-current support policy ("Support"), available at surfboard.ai/support.

1.10. Suspension of Service

Company may immediately suspend Customer's access to Surfboard if: (a) Customer breaches Section 1.7 (Restrictions) or Section 4.6 (Customer Data Representations and Warranties); (b) Customer's account is 30 days or more overdue; (c) changes to Laws or new Laws require that Company suspend Surfboard or otherwise may impose additional liability on Company; or (d) Customer's actions risk harm to Company, its other customers or the security, availability, or integrity of Surfboard. Where practicable, Company will use reasonable efforts to provide Customer with prior notice of the suspension (email sufficient). If the issue that led to the suspension is resolved, Company will restore Customer's access to Surfboard.

2. ENTITY WORKSPACES

2.1. Entity Workspaces

If Customer is creating a Workspace on behalf of an Entity, the Workspace will be considered an "Entity Workspace", which may be subject to additional policies of the Entity. Customer is solely liable and responsible for understanding the settings, privileges and controls for Surfboard and for controlling which Entity Users and Guest Users you permit to access your Workspace (each a, "Workspace Authorized User") and what the settings and privileges are for such a Workspace Authorized User, including, the right for a Workspace Authorized User to invite others (either paid or unpaid), the right to incur charges on your account, the right to access or modify Customer Data, etc. Customer is responsible for the activities of all your Workspace Authorized Users, even if those Workspace Authorized Users are not Entity Users. Further, Customer acknowledges that any action taken by a Workspace Authorized User of your account, is deemed by us as an authorized action by Customer.

2.2. Workspace Administration

The creator of a Workspace will be the default administrator of that Workspace (the "Administrator"), unless the creator designates an alternative person(s) to act as the Administrator. The Administrator may grant other Workspace Authorized Users access to the Workspace, or revoke access to the Workspace. Administrators may also:

• manage the access permissions of Workspace Authorized Users of the Workspace;
• modify, edit, alter, export, distribute, promote, remove, restrict, delete, or otherwise exploit the Customer Data in the Workspace;
• monitor the actions of Workspace Authorized Users of the Workspace; and
• disable or enable features in the Workspace.

If the Administrator of a Workspace leaves the Workspace or deactivates or deletes their account on Surfboard, the Workspace will continue to be accessible by the other Workspace Authorized Users. A Workspace may only be deleted if the Administrator archives the Workspace before deleting it or uses another deletion process made available by Company. Subject to the settings selected by the Administrator, Workspace Authorized Users may be able to export Customer Data from the Workspace or may transfer Customer Data from one Workspace to another or otherwise outside of the Workspace.

2.3. Workspace Authorized Users

If you are a Workspace Authorized User of an Entity Workspace you agree to comply with the policies of the applicable Entity and any agreement between you and that Entity. By joining or creating an Entity Workspace, you acknowledge and agree that:

• the Entity is the owner of all Customer Data in the Entity Workspace;
• all Customer Data in an Entity Workspace may be shared with the Entity and may be modified, deleted, or accessed by the Entity;
• the Entity may terminate Workspace Authorized User's access to the Entity Workspace at any time and Workspace Authorized User may not be able to access any of the Customer Data in that Workspace; and
• any Customer Data that Workspace Authorized User transfers to the Entity Workspace may grant the Entity broad rights to Workspace Authorized User's Customer Data.

As between Workspace Authorized User and Company, Workspace Authorized User is responsible for resolving any dispute they may have with the Entity related to Customer Data posted in an Entity Workspace.

3. FEES

3.1. General Pricing and Payment Terms

Certain features of Surfboard may require you to pay fees. Before you pay any fees, you will have an opportunity to review and accept the fees that you will be charged. All fees are in the currencies provided on the Company website and, except as expressly provided by applicable law, are non-refundable, except required by law.

3.2. Price

Company reserves the right to determine pricing for Surfboard. Company will make reasonable efforts to keep pricing information published on the website up to date which is available on our surfboard.ai/pricing (the "Pricing Page"). All prices are shown on the Pricing Page. Any applicable sales taxes, levies, value-added taxes, or duties imposed by taxing authorities are calculated during the check-out process based on your location. We encourage you to check our website periodically for current pricing information. Company may change the price of any feature of Surfboard; if this occurs, Company will provide you advance notice of the changes before they apply. Company, at its sole discretion, may make promotional offers with different features and different pricing to any of Company's customers. These promotional offers, unless made to you, will not apply to your offer or these Terms.

3.3. Subscription Service

Surfboard may include automatically recurring payments for periodic charges ("Subscription Service"). If Customer activates a Subscription Service, Customer authorizes Company or its third-party payment processor(s) (e.g., Stripe) ("Payment Processor") to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or Customer's account, all accrued sums on or before the payment due date for the accrued sums. The "Subscription Billing Date" is the date when Customer purchases their first subscription to Surfboard. For information on the "Subscription Fee", please see our Pricing Page. Customer's account will be charged automatically on the Subscription Billing Date all applicable fees and taxes for the next subscription period (e.g., monthly billing periods will be billed on the same day each month). The subscription will continue unless and until Customer cancels their subscription or Company terminates it. Company or its third-party payment processor will bill the periodic Subscription Fee to the payment method Customer provides to Company during registration (or to a different payment method if Customer changes their payment information). Customer may cancel the Subscription Service by contacting Company at support@surfboard.ai.

TO PREVENT CHARGES FOR THE NEXT SUBSCRIPTION PERIOD, CUSTOMER'S CANCELLATION MUST BE RECEIVED AT LEAST TEN DAYS BEFORE THE NEXT SUBSCRIPTION BILLING DATE. UPON CANCELLATION, CUSTOMER IS STILL REQUIRED TO PAY ANY OUTSTANDING FEES AND CHARGES ACCUMULATED UP TO THE DATE OF CUSTOMER'S CANCELLATION.

3.4. Payment Processing

Company may utilize Payment Processor to facilitate transactions for Surfboard. By purchasing a Subscription Service and making payments, Customer agrees to be bound by the terms and conditions and privacy policies of the applicable Payment Processor. Customer acknowledges and understands that the Payment Processor may collect and process certain information from Customer, including but not limited to Customer's payment information, billing address, and transaction history, in accordance with their privacy policy. This information is collected and processed by the Payment Processor for the purpose of facilitating payment transactions and preventing fraud. Company is not responsible for any security breaches or unauthorized access to Customer's information that may occur on the Payment Processor's systems. If Company utilizes a Payment Processor to facilitate transactions, Customer agrees to comply with the platform agreement provided by that Payment Processor. To the fullest extent permitted by applicable Law, Company shall not be liable for any errors, omissions, or security breaches related to the Payment Processor's services. Any disputes related to payment processing should be addressed directly with the Payment Processor in accordance with their terms of service. Company may use Stripe, Inc. ("Stripe") as our Payment Processor (https://stripe.com). For specific details regarding Stripe's services, please refer to the following links: Stripe services agreement: https://stripe.com/legal/consumer and Stripe privacy policy: https://stripe.com/privacy. Customer understands that the Payment Processor may modify its services and terms and conditions at any time. Company is not responsible for any changes made by the Payment Processor that may affect Customer's use of Surfboard. Company reserves the right to change our Payment Processor at any time.

3.5. Delinquent Accounts

Company may suspend or terminate access to Surfboard, including fee-based portions of Surfboard, for any account for which any amount is due but unpaid. In addition to the amount due for Surfboard, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of any the unpaid amount, including collection fees. Customer acknowledges and agrees that Company shall not be liable to it or any third party for any consequences, losses, damages (including, but not limited to, loss of data, loss of profits, business interruption, or any indirect, consequential, special, or punitive damages), or other liabilities arising out of or related to Company's suspension or termination of Customer's access to Surfboard due to Customer's failure to pay amounts due.

3.6. Enterprise Agreements

Notwithstanding anything to the contrary in these Terms, Entities subject to separately negotiated enterprise agreements may have different pricing and terms. In the event of a conflict or inconsistency between these Terms and the enterprise agreement, the enterprise agreement shall govern.

4. DATA

4.1. Use of Customer Data

Customer grants Company the non-exclusive, worldwide, sublicensable right to collect, access, use, copy, store, host, transform, disclose, transmit, transfer, publicly display, modify, create derivative works from, and otherwise process ("Process") the any information, content, software, or materials of any type or format (whether created by human creation, procedurally generated algorithms, or generative artificial intelligence) that Customer (including its Entity Users and Guest Users) uploads, submits, posts, generates, transmits, inputs, connects, or otherwise makes available to or through Surfboard, including Outputs (defined below) (collectively, "Customer Data") only as necessary to: (i) provide Surfboard services; (ii) create and compile Customer Data that has been deidentified or aggregated with other data such that the resulting data no longer reasonably identifies Customer or a specific individual ("Aggregated Data"); and (iii) as otherwise required by all applicable Laws or as agreed to in writing between the parties.

4.2. Customer Data Grant to Other Users

You authorize Company to share your Customer Data with others at your request according to the following license grants:

• Customer hereby grants Company the right to share Customer Data with users designated by Customer (including Entity Users and Guest Users) in accordance with Customer's permissions. Users' access to Customer Data may vary depending on the permissions set by Customer.
• Customer hereby grants each of its users (including Entity Users and Guest Users) a non-exclusive license to access Customer Data through Surfboard, and to use, reproduce, distribute, display, edit, perform, and otherwise interact with such Customer Data in accordance with Customer's permissions, Surfboard's functionality, and these Terms.

4.3. Usage Data; Aggregated Data

Company may Process information generated in connection with the use or operation of Surfboard, which data does not identify Entity Users, Guest Users, any other natural human persons, or Customer, such as technical logs, data, and learnings about Customer's use of Surfboard, but excluding any Customer Data ("Usage Data") and Aggregated Data for its internal business purposes, such as:

• tracking use of Surfboard for billing purposes;
• monitoring the performance and stability of Surfboard;
• preventing or addressing technical issues with Surfboard;
• improving Surfboard and its other products and services, to develop new products and services; and
• for all other lawful business purposes, such as generating analytics, benchmarking, and reports.

4.4. AI Features

Certain features of Surfboard may enable you to submit Customer Data, such as prompts, text, or other inputs, and Surfboard will generate responsive outputs ("Output") using artificial intelligence ("AI Features"). Company uses large language models provided by third parties ("LLMs") to provide certain features of Surfboard, including the AI Features. Before using Surfboard, you should review and ensure that you comply with the acceptable use policies of the LLMs, including the LLMs and applicable policies listed in Company's Trust Center, available at surfboard.ai/trust, which may be updated or modified by Company from time to time. By using Surfboard, you hereby grant a license to Company to transfer, transmit, distribute, or otherwise make available your Customer Data to such LLMs and, as applicable, the providers of such LLMs. You are responsible for your compliance with the policies of the LLMs and Company may suspend or terminate your use of all or part of Surfboard if Company becomes aware that you are violating any such policy. You acknowledge and agree that Company is not responsible for any output, content, or other materials generated or produced by the LLMs. Outputs are generated through machine learning processes and are not tested, verified, endorsed, or guaranteed to be accurate, complete, or current by Company. You should independently review and verify all Outputs as to appropriateness for any or all use cases or applications. Customer agrees to use all Output in compliance with Laws.

4.5. AI Training Opt-In

At Customer's option and upon Customer's explicit consent, Customer acknowledges and agrees that the Company may use Customer Data for the purpose of training and improving Surfboard. Customer may grant such explicit consent by actively selecting the designated opt-in option within Customer's account settings or through a written affirmative statement via email to support@surfboard.ai. By providing such explicit consent, Customer grants Company a non-exclusive, royalty-free, perpetual, irrevocable, worldwide, sublicensable, and transferable license to use, reproduce, modify, adapt, publish, translate, create derivative works from Customer Data for the sole purpose of training and improving Company's and its affiliates' artificial intelligence models and algorithms (including LLMs). Customer understands and agrees that opting into this feature means that Company may process and incorporate Customer Data into its AI training datasets. Company will use commercially reasonable efforts to anonymize or de-identify Customer Data used for AI training where feasible and appropriate but does not guarantee complete anonymization. Customer may revoke this consent at any time through a written affirmative statement via email to support@surfboard.ai. Revoking consent will apply prospectively and will not affect Customer Data already used for training prior to the revocation.

4.6. Customer Data Representations and Warranties

Company disclaims all liability in connection with Customer Data. Customer is responsible for its Customer Data and the consequences of providing Customer Data via Surfboard. Customer represents and warrants that it will comply with Laws when using Surfboard and:

• has made all disclosures, provided all notices, and has obtained all rights, consents, and permissions necessary for Company to Process Customer Data without violating or infringing Laws, third-party rights, or terms or policies that apply to the Customer Data; and
• Customer Data, and the use of Customer Data as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) breach any contractual obligation that you owe to a third party, including any Entity; or (iii) cause Company to violate any Laws.

4.7. Data Protection

To the extent applicable, the Parties will comply with their respective obligations as set forth in the Data Processing Agreement available at https://surfboard.ai/dpa which is incorporated herein by reference.

5. THIRD PARTY SERVICES AND COMPONENTS

In addition to Surfboard's use of LLMs, Surfboard may include, provide, or enable access to other services, software, or components provided by third parties as follows:

a) Third-Party Services

"Third-Party Services" means tools or services that enable Customer to export information, including Customer Data, to third-party services other than LLMs, or link Customer's account on Surfboard with an account on the Third-Party Service. By using one of these tools, you agree that Company may transfer that information to the applicable Third-Party Service under the applicable terms of that Third-Party Service provider. Third-Party Services are not under Company's control, and, to the fullest extent permitted by law, Company is not responsible for any Third-Party Service's use of your exported information.

b) Third-Party Components

"Third-Party Components" means third-party software components included or incorporated into Surfboard that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components. Although Surfboard is provided to Customer subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict Customer from obtaining Third-Party Components under the applicable third-party licenses or to limit Customer's use of Third-Party Components under those third-party licenses.

6. OWNERSHIP; FEEDBACK

Neither party grants the other party any rights or licenses not expressly set out these Terms. Except as expressly provided in these Terms, as between the parties, Customer retains all intellectual property rights and other rights in and to the Customer Data. Except for the rights and licenses granted in these Terms, Company and its licensors retain all intellectual property rights in and to Surfboard. To the extent Customer provides Company with feedback (including suggestions and comments for enhancements or new functionality) regarding Surfboard, Output (including underlying datasets), or Company's products, services, or other technology (including defects, errors, issues, and any associated recommendations, proposals, or solutions) ("Feedback"), Company has the full and unrestricted right (but no obligation) to use or incorporate Feedback in any manner, including to improve and develop any of its products, services, technology, or other materials.

7. WARRANTY DISCLAIMERS

7.1. DISCLAIMER OF WARRANTIES

SURFBOARD, SUPPORT, OUTPUT, AND ALL OTHER COMPANY SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." COMPANY, ON ITS OWN BEHALF AND ON BEHALF OF ITS SUPPLIERS AND LICENSORS, MAKES NO OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. COMPANY DOES NOT WARRANT THAT CUSTOMER'S OR USERS' USE OF SURFBOARD WILL BE UNINTERRUPTED OR ERROR-FREE, THAT COMPANY WILL REVIEW CUSTOMER DATA FOR ACCURACY, OR THAT IT WILL MAINTAIN CUSTOMER DATA WITHOUT LOSS. COMPANY IS NOT LIABLE FOR PROHIBITED DATA, DELAYS, FAILURES, OR PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OF COMPANY'S CONTROL. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS, BUT ANY STATUTORILY REQUIRED WARRANTIES WILL BE LIMITED TO THE SHORTEST LEGALLY PERMITTED PERIOD.

Without limiting the foregoing, Customer acknowledges and agrees that, and Customer will ensure that all permitted users, (including Entity Users) acknowledge and agree that:

• Surfboard and Output are not professional advice, including legal, tax, investment, or other advice, and Customer and users will not rely on Surfboard or Output as a substitute for professional advice;
• Surfboard may produce inaccurate or erroneous Output;
• Customer and users are responsible for independently evaluating Output and any other information received from Surfboard;
• Customer and users are responsible for their own research and decision-making, and for any acts or omissions undertaken based on information received from Surfboard, including Output; and
• due to the nature of Surfboard and artificial intelligence technologies generally, Output may not be unique and other users of Surfboard may receive output from Surfboard that is similar or identical to the Output (and, notwithstanding anything to the contrary, such similar or identical output will not be understood to be Output hereunder).

8. CONFIDENTIALITY

8.1. Definition

"Confidential Information" means information disclosed to the receiving party ("Recipient") these Terms that is designated by the disclosing party ("Discloser") 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. Company's Confidential Information includes the terms and conditions of these Terms and any technical or performance information about Surfboard. Customer's Confidential Information includes Customer Data.

8.2. Obligations

As Recipient, each party will: (a) hold Confidential Information in confidence and not disclose it to third parties except as permitted in these Terms, including Section 4.1 (Use of Customer Data); and (b) only use Confidential Information to fulfill its obligations and exercise its rights in these Terms. At Discloser's request, Recipient will delete all Confidential Information, except, in the case where Company is the Recipient, Company may retain the Customer's Confidential Information to the extent required to continue to provide Surfboard. Recipient may disclose Confidential Information to its employees, agents, contractors, and other representatives having a legitimate need to know, provided it remains responsible for their compliance with this Section 8 and they are bound to confidentiality obligations no less protective than this Section 8.

8.3. Exclusions

These confidentiality obligations do not apply to information that Recipient can document:

• is or becomes public knowledge through no fault of the receiving party;
• it rightfully knew or possessed prior to receipt under these Terms;
• it rightfully received from a third party without breach of confidentiality obligations; or
• it independently developed without using Discloser's Confidential Information.

8.4. 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 8.

8.5. Required Disclosures

Nothing in these Terms 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.

9. TRIALS AND BETAS

If Customer receives access Surfboard or features thereof on a free or trial basis or as an alpha, beta, or early access offering ("Trials and Betas"), use is permitted only for Customer's internal evaluation during the period designated by Company (or if not designated, 30 days). 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 Company may never release, and their features and performance information are Company's Confidential Information. Notwithstanding anything else in these Terms, Company provides no warranty, indemnity, or support for Trials and Betas, and its liability for Trials and Betas will not exceed US$50.

10. PUBLICITY

Neither party may publicly announce that the parties have entered into these Terms, except with the other party's prior consent or as required by Laws. However, Company may use the name, brand, or logo of Customer (or Customer's parent company) for the purpose of identifying Customer as a licensee or customer on Company's website or in other promotional materials. Company will cease further use at Customer's written request.

11. TERM AND TERMINATION

11.1. Term

These Terms are in effect as of the Effective Date and continues until terminated as described in Section 11.2 (Termination).

11.2. Termination

Either party may terminate these Terms if the other party: (a) fails to cure a material breach of these Terms 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. If Customer violates any provision of these Terms, then Company, may, in its sole discretion, terminate these Terms and Customer's access to Surfboard, with or without notice, and without any liability to Customer arising from such termination. Customer may terminate its account and these Terms at any time by contacting us at support@surfboard.ai.

11.3. Effect of Termination

Upon termination of these Terms: (a) Customer's license and API rights will terminate, and Customer must immediately cease all use of Surfboard; (b) Customer will no longer have access to its account, Surfboard, or Support; and (c) Customer must pay Company any unpaid amount that was due prior to termination.

Following the date of expiration or earlier termination of these Terms, Company will make commercially reasonable efforts to retain Customer Data for 30 days to allow Customer to export it, after which Company will be under no obligation to store or retain Customer Data and may delete Customer Data at any time in its sole discretion. Confidential Customer Data and other Confidential Information, as defined in Section 8 (Confidentiality), may be retained in Recipient's standard backups notwithstanding any obligation to delete the applicable Confidential Information but will remain subject to these Terms' confidentiality restrictions.

11.4. Survival

All definitions and the following Sections survive expiration or termination of these Terms: 1.7 (Restrictions), 4 (Data), 6 (Ownership and Feedback), 7 (Warranty Disclaimers), 8 (Confidentiality), 11.3 (Effect of Termination), 11.4 (Survival), 12 (Indemnification), 13 (Limitations of Liability), and 14 (General Terms). Except where an exclusive remedy is provided in these Terms, exercising a remedy under these Terms, including termination, does not limit other remedies a party may have.

12. INDEMNIFICATION

12.1. Indemnification by Company

Company will defend Customer from and against any third-party claim to the extent alleging that Surfboard (excluding Output, Third-Party Services, and Third-Party Components), when used by Customer in accordance with these Terms, infringes or misappropriates a third-party's patent, copyright, trademark, or trade secret (other than as a result of a breach by Customer of these Terms), and will indemnify and hold harmless Customer against any damages and costs awarded against Customer (including reasonable attorneys' fees) or agreed in a settlement by Company resulting from the claim.

12.2. Indemnification by Customer

Customer will indemnify and hold Company harmless, and upon request defend Company, from and against any expenses, liabilities, damages, and costs of any kind (including attorneys' fees) resulting from a third-party claim related to:

• the Customer Data;
• Customer's breach or alleged breach of Section 1.7 (Restrictions) or Section 4.6 (Customer Data Representation and Warranties);
• Customer's (including Entity Users' and Guest Users') use of Output;
• Customer's breach of Laws; and
• Customer's breach of its representations and warranties in these Terms.

12.3. Procedures

The indemnifying party's obligations in this Section 12 are subject to it receiving: (a) reasonably prompt written notice of the indemnified claim; and (b) the reasonable cooperation of the indemnified party, at the indemnifying party's expense. The indemnifying party may not settle any indemnified 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 Surfboard, when Company is the indemnifying party). When the indemnifying party undertakes the defense of an indemnified claim, the indemnified party may participate in a claim with its own counsel at its own expense.

12.4. Mitigation

In response to an actual or potential infringement or misappropriation claim or otherwise relating to violation of intellectual property rights, if required by settlement or injunction or as Company determines necessary to avoid material liability, Company may at its option: (a) procure rights for Customer's continued use of Surfboard; (b) replace or modify the allegedly infringing portion of Surfboard to avoid infringement or misappropriation without reducing Surfboard's overall functionality; or (c) terminate these Terms and refund to Customer any pre-paid, unused fees for the incomplete portion of the Term.

12.5. Exceptions

Company's obligations in this Section 12 do not apply:

• to infringement or misappropriation resulting from Customer's modification of Surfboard or use of Surfboard in combination with items not provided by Company (including Third-Party Components);
• to unauthorized use of Surfboard;
• if Customer settles or makes any admissions about a claim without Company's prior consent; or
• to Trials and Betas or other free or evaluation use.

12.6. Exclusive Remedy

THIS SECTION 12 SETS OUT CUSTOMER'S EXCLUSIVE REMEDY AND COMPANY'S ENTIRE LIABILITY REGARDING INFRINGEMENT OR MISAPPROPRIATION OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.

13. LIMITATIONS OF LIABILITY

13.1. Consequential Damages Waiver

EXCEPT FOR EXCLUDED CLAIMS, NEITHER PARTY (NOR ITS SUPPLIERS OR LICENSORS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOSS OF USE, LOST DATA, LOST PROFITS, 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.

13.2. Liability Cap

EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY'S (AND ITS SUPPLIERS' AND LICENSOR'S) ENTIRE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS WILL NOT EXCEED IN AGGREGATE THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO COMPANY PURSUANT TO THESE TERMS DURING THE 12 MONTHS PRIOR TO THE DATE ON WHICH THE APPLICABLE CLAIM GIVING RISE TO THE LIABILITY AROSE UNDER THESE TERMS.

13.3. Excluded Claims

"Excluded Claims" means:

• Customer's breach of Section 1.7 (Restrictions) or Section 4.6 (Customer Data Representation and Warranties);
• a party's payment obligations under the indemnity set forth in Section 12 (Indemnification); or
• claims for unpaid fees owed to Company under these Terms.

13.4. Nature of Claims

The waivers and limitations in this Section 13 (Limitation of Liability) 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 these Terms fails of its essential purpose. Each provision of these terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is intended to and does allocate the risks between the parties under these Terms. This allocation is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of these Terms. The limitations in this Section 13 (Limitation of Liability) will apply even if any limited remedy fails of its essential purpose.

14. GENERAL TERMS

14.1. Assignment

Neither party may assign these Terms without the prior consent of the other party, except that either party may assign these Terms in connection with a merger, reorganization, acquisition, or other transfer of all or substantially all its voting securities or assets to which these Terms relates to the other party involved in such transaction. Any non-permitted assignment is void. These Terms will bind and inure to the benefit of each party's permitted successors and assigns.

14.2. Governing Law, Jurisdiction and Venue

These Terms are governed by the laws of the State of Washington and the United States without regard to conflicts of laws provisions that would result in the application of the laws of another jurisdiction and without regard to the United Nations Convention on the International Sale of Goods. The jurisdiction and venue for actions related to these Terms will be the state and United States federal courts having jurisdiction King County, Washington, and both parties submit to the personal jurisdiction of those courts.

14.3. Notices

Except as set out in these Terms, any notice or consent under these Terms will be (a) for Customer, the email address used to sign up for Surfboard and (b) for Company, support@surfboard.ai and will be deemed given at the time of transmission. Either party may update its email address with notice to the other party. Company may also send operational notices to Customer by email or through Surfboard.

14.4. Entire Agreement

These Terms are the parties' entire agreement regarding its subject matter and supersedes any prior or contemporaneous agreements regarding its subject matter. In these Terms, headings are for convenience only and "including" and similar terms are to be construed without limitation. These Terms 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.

14.5. Modifications to Terms

Company may modify these Terms from time to time with notice to Customer. If Company requires modifications with an earlier effective date and Customer objects, Customer's exclusive remedy is to terminate these Terms with notice to Company. To exercise this termination right, Customer must notify Company of its objections within 30 days after Company's notice of the intended modifications to these Terms. Once the modified Terms takes effect Customer's continued use of Surfboard constitutes its acceptance of the modifications. Company may require Customer to click to accept the modifications to these Terms. Except as expressly permitted in this Section 14.5 (Modification of Terms), these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms.

14.6. Consent to Electronic Communications

By using Surfboard, Customer consents to receiving certain electronic communications from us. Customer agrees that any notices, agreements, disclosures, or other communications that Company sends to Customer electronically will satisfy any legal communication requirements, including that those communications be in writing.

14.7. Waivers and Severability

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

14.8. Force Majeure

Neither party is liable for any delay or failure to perform any obligation under these Terms (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.

14.9. Independent Contractors

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

14.10. Export

Customer will comply with all relevant U.S. and foreign export and import Laws in using Surfboard. Customer:

• represents and warrants that it is not listed on any U.S. government list of prohibited or restricted parties or located in (or a national of) a country that is subject to a U.S. government embargo or that has been designated by the U.S. government as a "terrorist supporting" country;
• agrees not to access or use Surfboard in violation of any U.S. export embargo, prohibition, or restriction; and
• will not submit to Surfboard any information controlled under the U.S. International Traffic in Arms Regulations.

14.11. Government End Users

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

14.12. International Use

Company makes no representation that Surfboard is appropriate or available for use outside of the United States. Access to Surfboard from countries or territories or by individuals where such access is illegal is prohibited.

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