Pulse Labs FlightRecorder Software Development Kit (SDK) Terms

AGREEMENT TO TERMS OF USE

Welcome to PulseLabs. Please read these Terms of Use carefully. PulseLabs AI, Inc. (“PulseLabs,” “we,” “us,” and “our”) developed and owns PulseLabs’ FlightRecorder software development kit. These Terms of Use govern your access to and use of the FlightRecordersoftware development kit and each component thereof, including any all information, documentation, sample code, programming tools, data, and other materials, whether tangible or intangible and in whatever form or medium, that we make available to you as part of the software development kit (collectively, the “SDK”). The SDK includes bug fixes, updates, upgrades, enhancements, modifications, and new releases or versions of the SDK developed by us and made available by us to you pursuant to these Terms of Use. By accessing or using the SDK, you accept and agree to be bound by these Terms of Use, on behalf of yourself and, if applicable, on behalf of any entity of which you claim to be an employee or other type of agent or representative (“Employer”), including the provisions below that allow us to cancel or suspend access to and use of the SDK in certain circumstances and that require you to resolve certain disputes with us by binding arbitration involving a class action waiver.

These Terms of Use (this “Agreement”) constitute a legally binding agreement made between PulseLabs and you and, if applicable, your Employer (collectively, “you,” “yourself,” and “your”), concerning access to and use of the SDK. You agree that by accessing or using the SDK, including by clicking “I agree” or otherwise similarly indicating your assent electronically, you have read, understood, and agree to be bound by this Agreement. If you do not agree to all of the terms of this Agreement, do not access or use the SDK or any component thereof. This Agreement does not alter in any way the terms or conditions of any other agreement you may have with us for products, services, software, tools, documentation, or otherwise, including any separate, written agreement. If you are accessing or using the SDK on behalf of your Employer, you represent and warrant that you are authorized to accept this Agreement on your Employer’s behalf.

ELIGIBILITY TO ACCESS AND USE THE SDK

In order to access and use the SDK, now or in the future, you must be at least 18 years of age or the age of legal majority where you live, whichever is greater. The SDK is offered by us from our locations in the United States. The SDK is not intended for distribution to or use by any person or entity in any jurisdiction where such distribution or use would be contrary to law or that would subject us to any registration requirement within such jurisdiction. Accordingly, those persons who choose to access or use the SDK from locations outside the United States do so on their own initiative and are solely responsible for compliance with local laws. You represent and warrant that neither you nor, if applicable, your Employer are (1) located in a country that is subject to a US government embargo, or that has been designated by the US government as a “terrorist supporting” country; or (2) listed on any US government list of prohibited or restricted parties. We reserve the right to cancel or suspend your and/or your Employer’s access to and use of the SDK if you fail to comply with any of these eligibility requirements.

MODIFICATIONS TO THIS AGREEMENT

We reserve the right to modify the terms, conditions, limitations, and restrictions set forth in this Agreement, or any policies or supplemental terms related to your access to and use of the SDK, at any time and in our sole discretion, including with respect to Fees (as defined below) and any payment schedules or other payment terms related thereto; provided, that, in the event that we make such modifications, including introducing any such policies or supplemental terms, we will endeavor to notify you and allow you to review and accept the modifications, policies, or supplemental terms, as the case may be, prior to continuing to access or use the SDK. Supplemental terms, if any, are hereby expressly incorporated into this Agreement by this reference. Your continued access to and use of the SDK, following notice of such modifications, policies, or supplemental terms, will constitute your acceptance of them. If you do not agree to any such modifications, policies, or supplemental terms, as they occur or are introduced, you agree that you will immediately discontinue accessing and using the SDK.

PERMISSION TO ACCESS AND USE THE SDK; LIMITATIONS AND RESTRICTIONS

You may access and use the SDK on machines and devices owned, leased, or otherwise controlled by you and internally use the SDK solely for the purpose of developing or updating one or more software applications developed by you (each, a “Software Application”) and solely in the manner described in this Agreement and the documentation that accompanies the SDK, subject in each case to the terms, conditions, limitations, and restrictions set forth in this Agreement. You may not access or use the SDK for any other purpose, and you will not knowingly allow any person or entity that gains access to the SDK through you to do anything that is not permitted by this Agreement. You may not reproduce the SDK except as otherwise expressly permitted by this Agreement. You may not market, rent, distribute, publicly display, publish, disclose, license, sublicense, transfer, assign, sell, or offer to sell the SDK to others except as otherwise expressly permitted by this Agreement. You may not modify the SDK, including any source code comprised by the SDK, except as otherwise expressly permitted by this Agreement. For the avoidance of doubt, the permission granted to you in this section relates solely to your use of the SDK and, in no event, are you granted an implied license to exercise rights with respect to any other intellectual property owned, licensed, or otherwise controlled by us.

To the extent that the SDK comprises application templates, code stubs, code snippets, example applications, sample code, and code fragments in source code or compiled form (collectively, “Distributable Source Code”), you have permission to use, modify, and compile the Distributable Source Code solely for the purposes of developing or updating Software Applications pursuant to the permission granted by us to you in the preceding paragraph and redistribute the machine-readable object code that is created by compiling the Distributable Source Code with your Software Application, or Software Applications. Notwithstanding the foregoing, you will not modify any files that are included in the SDK.

In connection with the permissions granted to you in this section, you are free to distribute the Software Applications that you develop using the SDK, provided that you do not, directly or indirectly, market, rent, distribute, publicly display, publish, disclose, license, sublicense, transfer, sell, offer to sell, or furnish the SDK or its components to others, including in conjunction with or as part of your Software Applications, except as expressly permitted in the preceding paragraph.

In order to protect our proprietary rights in the SDK, you must require end users of your Software Applications, in the terms and conditions that apply to their access to and use of your Software Applications, to expressly agree not to modify the SDK or reverse engineer your Software Applications, except to the extent that you are expressly precluded by applicable law from imposing such restrictions.

You will ensure that you and your Authorized Users do not share your or their login credentials associated with authorized access to and use of the SDK, if any, with any other party, including other employees, agents, and representatives of your Employer, if applicable. “Authorized Users” are (1) any persons who provide services to you as full- or part-time employees and (2) any persons who provide services to you as contingent workers (e.g., individuals who provide services to you as independent contractors) or another type of agent or representative and use the SDK to develop one or more Software Applications.

You promptly will notify us if you exceed any usage limits associated with authorized use of the SDK, including the total number of Authorized Users, total number of devices, total number of supported Software Applications, or other such limits. You promptly will pay any Fees (as defined below) associated with any excess usage in the past, present, and future.

You are solely responsible for: (1) all of Your Data (as defined below), including its content and use; (2) all information, instructions, or materials provided by or on behalf of you or your Authorized Users; (3) your information technology infrastructure, including devices computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by you or through the use of third-party services (“Your Systems”); (4) the security and authorized or unauthorized use of your and your Authorized Users’ login credentials, if any; and (5) all access to and use of the SDK, directly or indirectly, by or through Your Systems, with or without your knowledge or consent, including all results obtained from and all conclusions, decisions, judgments, and actions based on such access or use.

You will employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to securely administer the distribution and use of your and your Authorized Users’ login credentials, if any, and protect against any unauthorized access to or use of the SDK.

YOUR DUTIES AND OBLIGATIONS; PROHIBITED ACTIVITIES

You are solely responsible for all acts and omissions related, directly or indirectly, to accessing and using the SDK by you and, if applicable, each of your Authorized Users, and you are solely responsible for each of your Authorized User’s compliance with this Agreement. You will ensure that:

(1) You and, if applicable, your Authorized Users only use the SDK in accordance with the terms and conditions set forth in this Agreement; all applicable laws and regulations; and the documentation provided by us to you, if any, as part of and for use in conjunction with the SDK;

(2) Each of your Software Applications and their intended uses, including any and all products, services, and content made available through or as a part of your Software Applications, comply with all applicable laws and regulations;

(3) You and, if applicable, your Authorized Users do not access or use the SDK in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party, including any unauthorized access to or recording, collection, storage, processing, uploading, downloading, transmission, transfer, distribution, publishing, destruction, or other usage or exploitation of data, including personal data, belonging to any person or entity;

(4) Neither your Software Applications nor any of the products, services, and content made available through or as a part of your Software Applications infringes any of our, our affiliates’, our customers’, or any third party’s Intellectual Property Rights (as defined below);

(5) You and, if applicable, your Authorized Users do not record, collect, store, process, upload, download, transmit, transfer, distribute, publish, destroy, or otherwise use or exploit any information, data, or content without having obtained, in advance, all necessary rights, permissions, and consents;

(6) You and, if applicable, your Authorized Users do not access or use the SDK in connection or association with any high-risk, hazardous activities, conditions, or environments requiring fail-safe performance or in connection with any activities, conditions, or environments where the SDK’s use or failure could lead to death, personal injury, or severe environmental damage;

(7) You and, if applicable, your Authorized Users use reasonable efforts to secure and protect from inadvertent disclosure to others the contents of the SDK, including any associated documentation;

(8) You and, if applicable, your Authorized Users do not incorporate the SDK into any other software development kit;

(9) You and, if applicable, your Authorized Users do not reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any source code comprised by the SDK except as otherwise permitted by this Agreement;

(10) You and, if applicable, your Authorized Users do not work around any technical limitations in any of the components comprised by the SDK;

(11) You and, if applicable, your Authorized Users do not combine, distribute, or otherwise use the SDK with any code or other content that is licensed pursuant to a license agreement that, directly or indirectly, requires that all or part of the SDK be governed by or licensed pursuant to any terms or conditions other than those set forth in this Agreement (each, a “Non-Allowable License”);

(12) You and, if applicable, your Authorized Users do not license or sublicense the SDK pursuant to any Non-Allowable License;

(13) You and, if applicable, your Authorized Users do not alter any copyright, trademark, patent notice, warranty, disclaimer, or other proprietary rights notice included in or accompanying the SDK, including in or accompanying the Distributable Source Code, if any;

(14) You and, if applicable, your Authorized Users do not use our trademarks in the names of your Software Applications or in a way that suggests that your Software Applications come from or are endorsed by us;

(15) You and, if applicable, your Authorized Users do not knowingly, after making such inquiries as a reasonable person in your or your Authorized Users’ position would undertake, develop or distribute Software Applications or make any products, services, or content available through or as a part of your Software Applications the use of which, in isolation or with any hardware, software, systems, networks, services, content, or data, contain features or functionality, accessible to end users or otherwise, that could be used for inappropriate or improper purposes (including any and all criminal and tortious activity) or otherwise have a detrimental effect on any person or entity; and

(16) You take appropriate actions to ensure that your Authorized Users, if any, comply with the terms and conditions set forth in this Agreement, which may include entering into a written agreement with each of your Authorized Users that contain terms and conditions designed by you to ensure that your obligations in this Agreement and similar agreements are and will be met.

If you become aware of any actual or threatened unauthorized activity, you shall, and shall cause your Authorized Users to, immediately: (1) notify us of any such actual or threatened activity; and (2) take all reasonable and lawful measures necessary to stop the actual or threatened activity and mitigate its effects, including, where applicable, suspending, temporarily or permanently, any and all unauthorized access to or use of the SDK or any applicable component thereof; Software Applications developed or updated using the SDK; or any information, data, or content associated with or arising from the activity.

Failure to comply with any of the terms, conditions, limitations, restrictions, duties, obligations, or responsibilities set forth in this Agreement will constitute a material breach of this Agreement, and we will have the right to immediately terminate this Agreement, with or without advance notice, including termination of any and all permissions granted herein. Our right to terminate this Agreement pursuant to this paragraph is not our exclusive remedy. As set forth below, we may have additional rights and remedies under the law, which we are free to exercise.

FEES

In consideration for your authorized access to and use of the SDK, you will pay us the fee, or fees, set forth on our published pricing pages (each, a “Fee” and, collectively, the “Fees”), and in accordance with the payment schedules and other payment terms set forth thereon. You acknowledge that our pricing pages, payment schedules, and other payment terms may be updated from time to time, with or without advance notice to you. If any Fees remain unpaid beyond any applicable due dates, interest will accrue on the unpaid amount at the lesser of one percent per month or the maximum amount permitted by applicable law (“Late Fee”). In the event that you dispute, in good faith, the amount of any Fees, you will remit payment on the undisputed amounts. The Late Fee will not accrue as to any amounts that are the subject of a bona fide dispute unless such amounts are not paid within 30 days after the dispute has been resolved. You acknowledge and agree that, as between us and you, you are solely responsible for paying all applicable customs, duties, sales, use, value added, or other taxes, federal, state, or otherwise, however designated, that are levied or imposed by reason of your access to and use of the SDK, payments made in connection therewith, and other transactions contemplated by this Agreement, excluding only taxes based on our net income, profits, or gross receipts.

You agree to provide us with current, complete, and accurate purchase, payment, and account information. You further agree to promptly update your information, including your email address information related to your authorized payment method, or methods, so that we can complete all payment transactions and contact you, as needed. We may bill you through an online billing account for purchases made by you. Sales tax will be added to the price of purchases as deemed required by us. All payments will be stated by us and paid by you in US Dollars. You agree to pay all charges or fees at the prices then in effect for your purchases, and you authorize us to charge your authorized payment method for any such amounts upon making your purchase. If your purchase is subject to recurring charges, then you consent to our charging your authorized payment method on a recurring basis without requiring your prior approval for each recurring charge, until you notify us of your cancellation. We reserve the right to correct any errors or mistakes in pricing, even if we have already requested or received payment. We also reserve the right to refuse any purchase.

TERM AND TERMINATION

This Agreement is effective upon your agreement to be bound by its terms and conditions, as manifested by the assent described in the second paragraph above, and expires upon termination of this Agreement in accordance with the provisions set forth in this section.

You are allowed to terminate this Agreement at any time for any reason or no reason by sending us written notice and ceasing all access to and use of the SDK.

We are allowed to terminate this Agreement (1) in the event you no longer meet the eligibility requirements set forth above; (2) if you or one of your Authorized Users is in material breach of this Agreement and either you or the applicable Authorized User fails to cure the breach within 30 days after we send you written notice of the breach or, due to the nature of your obligation, or obligations, the breach cannot be cured; (3) if you or one of your Authorized Users tortiously or unfairly interferes with our customers, our business relations, or our operations; (4) if you or one of your Authorized Users fails to comply with the terms and conditions set forth in any other agreement between us and you; (5) if you merge with, are acquired by, or sell all or substantially all of your assets and/or capital stock or ownership interests to a third party; (6) if you become insolvent; (7) if you become subject to voluntary or involuntary bankruptcy; (8) if a receiver, trustee, or custodian is appointed for all or a substantial part of your assets; (9) if you make an assignment for the benefit of your creditors, or (10) if you voluntarily or involuntarily dissolve (each, “Cause”). We are also permitted to terminate or suspend this Agreement for Cause if we determine, in our reasonable judgment, that any applicable law, regulation, or ruling prohibits us from providing the SDK or any component thereof to you or one or more of your Authorized Users. If this Agreement is terminated by us for Cause, you will immediately cease any and all use and distribution of the SDK, as integrated with one or more Software Applications or otherwise. Further, regardless of whether or not this Agreement is terminated for Cause or otherwise, you agree to immediately cease any and all use or distributions of the SDK or any Software Applications that do not comply with the terms and conditions set forth in this Agreement or, in the case of Software Applications, were developed by you or one or more of your Authorized Users without complying with the terms and conditions set forth in this Agreement. For the avoidance of doubt, we will not have any liability to you or your Authorized Users as a result of our termination or suspension of this Agreement in accordance with the terms and conditions set forth in this Agreement or any termination or suspension of your permission to access and use the SDK granted by us to you as long as such termination or suspension complies with the terms of this Agreement. If this Agreement is terminated for Cause, you will pay us all reasonable attorney fees, fees related to collections, and related expenses, actually incurred by us in connection with our enforcement of our rights.

The terms, conditions, representations, warranties, limitations, restrictions, duties, obligations, and responsibilities contained in this Agreement that, by their sense and context, are intended to survive the performance and/or termination of this Agreement will survive the completion of such performance and the termination of this Agreement. For the avoidance of doubt, any and all payment obligations that accrue to us pursuant to this Agreement prior to the effective date of its termination are intended to survive, as are all liabilities that accrue to the parties prior to the effective date of termination. However, none of the permissions granted by us to you pursuant to this Agreement are intended to survive.

Upon termination of this Agreement for any reason, the permissions that we grant to you in this Agreement will immediately and automatically terminate, at which point you will immediately stop using the SDK, including all copies and components thereof, and promptly destroy all copies and components of the SDK in your possession or control, unless you have permission to keep and use such copies and components pursuant to a separate, written agreement between us and you. Further, upon termination of this Agreement, each party will promptly return to the other party all Confidential Information of the other party in its possession, custody, or control and pay in full to the other party any payments that are then due that are not the subject of a bona fide dispute. If we ask, you will provide us with proof that all such copies of the SDK and its components and all such Confidential Information have been returned or destroyed, appropriate.

CONFIDENTIALITY

Neither you nor we will use Confidential Information disclosed by the other pursuant to this Agreement other than as necessary to perform our respective duties and obligations or exercise our respective rights pursuant to this Agreement. “Confidential Information” means any information disclosed by either party pursuant to this Agreement that is designated either in writing or orally as proprietary and/or confidential or that a reasonable person would consider to be proprietary and/or confidential under the circumstances. Each party will take all reasonable steps to prevent unauthorized disclosure or use of the other party’s Confidential Information and to prevent it from falling into the public domain or into the possession of unauthorized persons. Neither party will disclose Confidential Information of the other party to any person or entity other than its directors, officers, employees, and other agents and representatives who need access to such Confidential Information in order to affect the intent of this Agreement and who are bound to confidentiality obligations sufficient to enable the receiving party to otherwise comply with its confidentiality obligations under this Agreement. A receiving party will immediately give notice to the disclosing party of any unauthorized use or disclosure of the disclosing party’s Confidential Information.

Notwithstanding the foregoing, the obligations set forth in this section will not apply with respect to any information to the extent that it is: (1) already in the possession of the receiving party without restriction prior to the first disclosure pursuant to this Agreement as shown by records or files; (2) already part of the public knowledge or becomes part of the public knowledge after the time of disclosure other than as a result of any improper action by the receiving party; (3) approved for public release by the disclosing party; (4) required to be disclosed by applicable legal authority (provided that, if practicable, adequate notice and assistance is given by the receiving party to the disclosing party for the purpose of enabling the disclosing party to prevent and or limit the disclosure); or (5) independently developed by either party without use of the Confidential Information from the other party as shown by record or files.

The Parties acknowledge that each has received, and in the future will receive, from third parties confidential or proprietary information subject to a duty on such party’s part to maintain the confidentiality of the information and to use it only for certain limited purposes. The parties owe each other and these third parties, during and after term of this Agreement, a duty to hold this confidential and proprietary information in the strictest confidence and not to disclose it to any person or entity, or to use it except as necessary to meet its obligations pursuant to this Agreement consistent with the disclosing party’s agreements with these third parties.

YOUR DATA

As between you and us, we hereby confirm your ownership of any recordings, content, information, instructions, data, and other materials provided or made available to us by you via the SDK or otherwise pursuant to this Agreement (collectively, “Your Data”).

You represent, warrant, and covenants to us that: (1) Your Data is, and at all times will, be current, accurate, true, lawful, lawfully obtained, and complete; shall not infringe or violate any third party rights; and shall, as applicable, be updated by you as soon as practicable; (2) you have provided all notices and obtained all rights, consents, and authority necessary to (a) provide to us, and for us to use as permitted under this Agreement, Your Data; and (b) obtain or access any data, materials, or other content that you request or order through or in connection with the SDK or otherwise pursuant to this Agreement; (3) Your Data does not contain: (a) protected health information or other information subject to The Health Insurance Portability and Accountability Act of 1996 (or HIPAA) or other relevant law or regulation; (b) information subject to The Sarbanes–Oxley Act (or SOX) or other relevant law or regulation; (c) the Gramm-Leach-Bliley Act (or GLBA) or other relevant law or regulation; or (d) information that falls within the definitions of “special categories of data” or “highly sensitive personal information” under data protection laws.

You understand that, in connection with your access to and use of the SDK, you will be able to share certain elements of Your Data with us. We do not require, nor do we request from you, any non-public personal information (“NPPI”) belonging to, associated with, or controlled by your end users. Any NPPI shared with us is done at your sole discretion, and you are solely responsible for ensuring that you: (1) have obtained all necessary consents to share such NPPI; and (2) do not unnecessarily provide us with your end users’ NPPI. To the extent you share any elements of Your Data with us, including in connection with your access to and use of the SDK, you hereby grants to us permission to use Your Data as reasonably necessary for us to perform this Agreement, offer continued access to and use of the SDK to you and others, and modify and improve the SDK. We will not retain, use, or disclose your end users’ NPPI or any other personally identifiable information or other personal data (as defined by applicable data protection laws) provided by you to us pursuant to this Agreement for any other purpose.

You agree that you will request end user consent if and when you access and use components of the SDK, if any, that require or enable you to share Your Data with us, one or more of our partners, or other third parties or that otherwise enable you to track information and data about how your end users use Software Applications. You will ensure that your privacy policies contain clear statements that explain how such information and data is collected, stored, processed, and shared by you, including in connection with your access to and use of the SDK.

You hereby grants to us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable license to create, process, reproduce, store, display, modify, translate, create derivative works from, distribute, make available and otherwise use Aggregated Data (as defined below) in connection with developing, providing, maintaining, supporting, and improving our current and future products and services; in connection with developing, using, or distributing general analyses or insights; and for any other lawful purpose. “Aggregated Data” means any data that is based on or derived from any data provided or made available by you or an Authorized User via the SDK or otherwise pursuant to this Agreement that has been aggregated and de-identified in a manner that does not designate or identify you or your Authorized Users as the source of such data and modified so that it cannot be associated with any specific person or entity.

INTELLECTUAL PROPERTY

We reserve all rights to the SDK and its components not otherwise expressly licensed to you pursuant to this Agreement. The SDK, including each copy of the SDK and all components thereof, are licensed to you, not sold. You acknowledge that your permission to access and use the SDK is solely as set forth in this Agreement and does not include any implied licenses to or any rights of ownership in the SDK or any of its components. You agree that we own all right, title, and interest, including any and all Intellectual Property Rights, in and to the SDK and any and all authorized and unauthorized changes, corrections, or other modification made to and derivative works of the SDK made by us, you, and others. You hereby irrevocably assign to us any and all rights you are deemed to have in any such modifications and derivatives, including any and all associated Intellectual Property Rights, and agree to execute all documents necessary to implement and effect this assignment. “Intellectual Property Rights” means all rights in, to, or arising out of: (1) any US, international, or foreign patent or any application therefore and any and all reissues, divisions, continuations, renewals, extensions, and continuations-in-part thereof; (2) inventions (whether patentable or not in any country or other jurisdiction), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology, and technical data; (3) copyrights, copyright registrations, mask works, mask works registrations, software, moral rights, trademarks, and rights of personality, privacy, and likeness, whether arising by operation of law, contract, license, or otherwise; and (4) any other similar or equivalent proprietary rights anywhere in the world.

You understand that this Agreement only grants you permission to access and use the SDK, itself, and that you may need to seek and obtain licenses or other forms of permission from us or others in order to use, reproduce, publish, display, license, sell, offer for sale, or distribute your Software Applications in the manner you intend. You agree that we have no obligation to you with respect to providing notice of or acquiring such licenses or permissions, and you understand that this Agreement does not transfer, assign, or license to you any Intellectual Property Rights in or related to any products or services designed and developed by us, now or in the future, that are not covered by this Agreement.

You will not assert, either during the term or after the expiration of this Agreement, any patent claims in any jurisdiction against us, our affiliates, or any of our respective licensees in which you allege that one or more patents, directly or indirectly, are infringed based on: (1) any version of the SDK or any of its components; or (2) the interoperation of any product, service, or technology offered by us, our affiliates, or any of our respective licensees with the SDK or any of its components. Notwithstanding the foregoing, you will be relieved of this obligation where your patent claims are being asserted defensively in response to a third-party claim, and the third party asserting such claim does not withdraw that assertion within 10 days after being notified of your obligations set forth in this paragraph.

We have not agreed to, and do not agree to, treat as confidential any comments, suggestions, ideas, or feedback provided by you regarding the SDK, including feedback on bugs, faults, errors, and non-conformities within or relating to the SDK or suggestions for improvements to the SDK or one or more of its components (collectively, “Feedback”), and nothing in this Agreement or in your dealings arising out of or related to this Agreement will restrict our right to use, profit from, disclose, publish, or otherwise exploit any Feedback, without compensation to you or your Employer, or provide you or your Employer with any rights in or to any of our products or services. You hereby waive all moral rights to any Feedback, and you hereby warrant that any Feedback you provide is original with you or that you have the right to provide such Feedback to us. You agree that there shall be no recourse against us for any alleged or actual misappropriation of any intellectual property or infringement of any Intellectual Property Rights in Feedback that you provide to us.

USE OF THIRD-PARTY SOFTWARE, CODE, AND MATERIALS

The SDK may include software, code, or other materials supplied by third parties (“Third-Party Materials”). We are not responsible for Third-Party Materials and do not make any representations or warranties regarding Third-Party Materials. Further, use of Third-Party Materials may be subject to terms, conditions, limitations, and restrictions imposed by the licensor or supplier of the Third-Party Materials. For example, the SDK may contain elements of free and open-source software licensed pursuant to one or more open-source software licenses, such as the Apache License Version 2.0, the BSD 3-Clause License, or The MIT License. See documentation for more information.

REPRESENTATIONS AND WARRANTIES

Each party to this Agreement hereby represents and warrants to the other party that: (1) it has all necessary right, power, and authority to execute, deliver, and perform this Agreement and to perform its obligations pursuant to this Agreement, either on its own behalf or, in your case, on behalf of your Employer, if applicable; (2) this Agreement has been duly authorized, executed, and delivered by such party, constitutes the legal, valid, and binding obligation of such party, and is enforceable against such party in accordance with its terms; (3) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement; (4) it does and will comply with all applicable laws and regulations applicable to the performance of this Agreement; and (5) its actions undertaken in connection with this Agreement do not and will not breach any other agreement to which such party is bound.

Except as provided in this Agreement, each party disclaims any representations or warranties of any kind, express or implied, including the implied warranties of merchantability, accuracy, quality, fitness for a particular purpose (even if the party is advised of the purpose), title, and noninfringement and those implied warranties, if any, arising from a course of dealing or usage of trade. All such warranties are hereby excluded to the fullest extent permitted by law. No advice or information, whether oral or written, obtained from us or elsewhere will create any warranty not expressly stated in this agreement. Some jurisdictions do not allow the exclusion of certain warranties in certain circumstances. Accordingly, some of the limitations set forth in paragraph may not apply.

LIMITATIONS OF LIABILITY

Except with respect to a party’s confidentiality and indemnification obligations under this Agreement, neither party will be liable for any indirect, incidental, special, or consequential damages, including damages for loss of profits, revenue, data, or data use, even if advised of the possibility of such damages.

Except with respect to a party’s indemnification obligations pursuant to this Agreement or a party’s gross negligence or intentional misconduct, the aggregate liability of either party, or its licensors, to the other party arising in connection with this Agreement and/or its subject matter, however caused, and on any theory of liability, including contract, negligence, tort, strict liability, warranty, or otherwise, will in no event exceed the total aggregate amount of the Fees paid or payable to us by you pursuant to this Agreement during the period immediately prior to the date on which such liability first arises. Further, in no event will we be liable for (1) any damages whatsoever, directly or indirectly, arising out of any products, services, or content made available through or as a part of your Software Applications; or (2) any delay or failure of performance caused in whole or in part by your delay in performing, or failure to perform or comply with, any of your duties, obligations, or responsibilities under this Agreement.

Each provision of this Agreement that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks of this Agreement between us and you. This allocation is reflected in the pricing offered by us to you and is an essential element of the basis of the bargain between us and you. Each of these provisions is severable and independent of all other provisions of this Agreement. The limitations in this section form an essential basis for this Agreement and will apply regardless of the failure of any remedy of its essential purpose.

INDEMNIFICATION

Each party (the “Indemnifying Party”) will defend, hold harmless, and indemnify, at its expense, the other party and its affiliates and each of their respective officers, directors, employees, agents, representatives, independent contractors, consultants, shareholders, licensors, vendors, and suppliers and the successors and assigns of the foregoing (collectively, the “Indemnified Parties”) from and against any liabilities, losses, damages, and expenses, including court costs and reasonable attorney’s fees, arising out of or in connection with any third-party claim (each, a “Claim”) that (1) alleges the infringement or misappropriation of any Intellectual Property Right, in our case, by the SDK or any of its components or, in your case, by: (a) one or more of your Software Applications or the use thereof, including the combination of one or more of your Software Applications with any hardware, software, systems, networks, services, content, applications, or data; (b) any product, service, application, or content made available, or required to be made available, through or as a part of one or more of your Software Applications; or (c) your or your Authorized Users’ combination of the SDK or any of its component with any hardware, software, systems, networks, services, content, applications, or data in a manner not contemplated by the SDK or the documentation that accompanies it (in those cases described in clauses (a) and (c) above, only to the extent that such infringement or misappropriation does not arise but for such combination by you or your Authorized Users); (2) in your case, alleges libel, slander, or defamation in connection with the use of one or more of your Software Applications or any product, service, application, or content made available through or as a part of one or more of your Software Applications; (3) alleges injury, death, or property or other damage arising from or related, in our case, to use of the SDK or any of its components or, in your case, to the use of one or more of your Software Applications or any product, service, application, or content made available through or as a part of one or more of your Software Applications; (4) alleges facts that, if true, constitute a breach of this Agreement by the Indemnifying Party, including, in your case, one of your Authorized Users; or (5) alleges facts that, if true, would constitute a violation of applicable law or regulation by the Indemnifying Party, including, in your case, one of your Authorized Users.

The Indemnifying Party will indemnify the Indemnified Party from each Claim, provided that (1) the Indemnified Party notifies the Indemnifying Party in writing promptly after the Indemnified Party becomes aware of the Claim (provided that the failure to so notify shall not affect the Indemnified Party’s rights to indemnification hereunder unless, and then only to the extent that, the Indemnifying Party has been actually prejudiced thereby); (2) the Indemnifying Party has sole control of the settlement, compromise, negotiation, and defense of the Claim (provided that the Indemnifying Party may not agree to any settlement that involves injunctive or equitable relief affecting the Indemnified Party or admission of liability by the Indemnified Party without obtaining the Indemnified Party’s prior written consent); and (3) the Indemnified Party provides reasonable cooperation, at the Indemnifying Party’s expense, in the defense and settlement of the Claim. The rights and obligations set forth in this section shall be the Indemnified Party’s sole and exclusive remedy vis-à-vis the Indemnifying Party, and the Indemnifying Party’s sole and exclusive liability to the Indemnified Party, with respect to claims asserted by one or more third parties.

The Indemnifying Party shall have no liability for any Claim that is based on infringement of Intellectual Property Rights that, in turn, is based on (1) products or services of the Indemnifying Party that have been modified by parties other than the Indemnifying Party, if such Claim would not have arisen but for such modifications; (2) the Indemnified Party’s use of the Indemnifying Party’s products or services in conjunction with equipment, hardware, devices, software, systems, or data not provided by the Indemnifying Party, if such Claim would not have arisen but for the use of such equipment, hardware, devices, software, systems, or data; (3) failure of the Indemnified Party to install upgrades or patches provided by the Indemnifying Party at no additional cost, if such upgrade or patch would have removed the conditions leading to the Claim; or (4) the Indemnified Party’s use of the Indemnifying Party’s products or services in a manner inconsistent with this Agreement or any applicable documentation accompanying such products or services.

DISPUTE RESOLUTION; MANDATORY BINDING ARBITRATION

Please read this section of this Agreement carefully because it requires you to waive the right to a jury trial, arbitrate certain disputes and claims with us, and limits the manner in which you can seek relief from us. As set forth in this section, no class or representative actions or arbitrations are allowed.

To expedite resolution and control the cost of any dispute, controversy, or claim related to this Agreement (each a “Dispute” and collectively, the “Disputes”) brought by either you or us (for purposes of this section, individually, a “Party” and, collectively, the “Parties”), the Parties agree to first attempt to negotiate any Dispute (except those Disputes expressly provided below) informally for at least 30 days before initiating arbitration. Such informal negotiations commence upon written notice from one Party to the other Party.

If the Parties are unable to resolve a Dispute through informal negotiations, the Dispute (except those Disputes expressly excluded below) will be finally and exclusively resolved by binding arbitration. You understand that without this provision, you would have the right to sue in court and have a jury trial. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures (collectively, the “Rules”), which are available at the JAMS website at www.jmsadr.com. Your arbitration fees and your share of arbitrator compensation shall be governed by the Rules and, where appropriate, limited by the Rules. If such costs are determined by the arbitrator to be excessive, we will pay all arbitration fees and expenses. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by either Party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except where otherwise required by the Rules or applicable law, the arbitration will take place in King County, Washington. Except as otherwise provided herein, the Parties may litigate in court to compel arbitration, stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.

If for any reason, a Dispute proceeds in court rather than arbitration, the Dispute shall be commenced or prosecuted in the state or federal courts of the State of Washington and the United States of America sitting in King County, Washington, USA, and the Parties hereby consent to, and waive all defenses of lack of personal jurisdiction, and forum non conveniens with respect to venue and jurisdiction in such state and federal courts. Application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act are excluded from these Terms of Use.

In no event shall any Dispute be commenced more than one year after the cause of action arose. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable, and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.

The Parties agree that any arbitration shall be limited to the Dispute between the Parties individually. To the full extent permitted by law, (1) no arbitration shall be joined with any other proceeding; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; and (3) 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.

The Parties agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any Disputes seeking to enforce or protect, or concerning the validity of, any of the Intellectual Property Rights of a Party; (2) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (3) any claim for injunctive relief. If this provision is found to be illegal or unenforceable, then neither Party will elect to arbitrate any Dispute falling within that portion of this provision found to be illegal or unenforceable and such Dispute shall be decided by a court of competent jurisdiction within the courts listed for jurisdiction above, and the Parties agree to submit to the personal jurisdiction of that court.

The Parties hereby agree that this Agreement affects interstate commerce and that the enforceability of this section will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, this Agreement, and the Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action or proceeding, which is prohibited by this Agreement. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative action or proceeding, or preside over any action or proceeding involving more than one individual.

The arbitrator and the Parties will maintain the confidentiality of any proceedings, including any and all information gathered, prepared, and presented for purposes of the arbitration or related to the Dispute. The arbitrator will have the authority to make appropriate rulings to safeguard that confidentiality unless the law provides to the contrary.

You may opt-out of the waiver of the right to have certain Disputes resolved in a class action and the waiver of the right to a jury trial described in this section by emailing us at FlightRecorder@pulselabs.ai. within 30 days after entering into this Agreement in the manner described herein. You must include your name, phone number, physical address, and email address in your opt-out notice. This is your only mechanism for opting out of the terms, conditions, limitations, restrictions, and waivers set forth in this section, and failure to do so as described herein constitutes your consent hereto, including such waivers. If you choose to opt out, please note that all other provisions in this Agreement will remain intact and in full force and effect.

EXPORT RESTRICTIONS

You acknowledge that we are subject to regulation by agencies of the United States, such as the Us Treasury Department and the US Commerce Department, which prohibit export or diversion of certain products and/or technology to certain countries, persons, or entities. You understand that the SDK may include software or other materials that are subject to export, import, and/or use controls by the US government or other governments with authority over jurisdictions from which the SDK is being exported or to which the SDK is being imported. You agree that the SDK will not be exported, imported, used, transferred, or re-exported except in compliance with such laws, regulations, and controls. More specifically, you agree that you will not supply the SDK or any of its components to any person or entity if you know, or have reason to know, that such person intends to export or re-export the SDK or such components in violation of such laws, regulations, or controls. Further, you agree not to download, export, or re-export the SDK or any of its component (1) into (or to a national or resident of) any country that is subject to a US government embargo or that has been designated by the US government as a “terrorist supporting” country; or (2) to any person listed on any US government list of prohibited or restricted parties. Notwithstanding any agreement with a third party or any provision of law, regulation, or policy, if you are any agency of the government of the United States, then your rights in respect of the SDK will not exceed the rights provided pursuant to this Agreement, unless you have entered into a separate, written agreement with us, signed by one of our authorized officers, in which we have granted you permission to do so.

NOTICES

Notices from you to us or us to you shall be in writing and may be sent via email. In any event, you can notify us or send questions, complaints, or claims related to the SDK to us by contacting us using the contact information set forth below. Notices from us to you will be sent to the email address or mailing address provided by you in connection with accessing and using the SDK.

MISCELLANEOUS

This Agreement and any supplemental terms related to your access to and use of the SDK that are incorporated into this Agreement constitute the entire agreement and understanding between you and us concerning your access to and use of the SDK. This Agreement and your access to and use of the SDK are governed by the laws of the State of Washington, USA, without regard to its conflict of laws principles. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. This Agreement operates to the fullest extent permissible by law. If any provision of this Agreement is adjudged to be invalid, void, or unenforceable, you and we hereby agree that the remaining provisions of this Agreement shall not be affected thereby, that the provision in question may be replaced by the lawful provision that most nearly embodies the original intention of you and us, and that this Agreement shall in any event otherwise remain valid and enforceable. In no event will either party be deemed in default hereunder based on delay in, or failure of, performance (other than the payment of money) if caused by floods, fires, storms, or other acts of God, by war or acts of public enemy, including terrorism, or civil disturbance, strikes, lockouts, shortage of labor, labor disputes or labor trouble, problems in obtaining raw materials or production facilities, power failure, equipment failure, transportation shortages or failures, actions of any governmental or other authority (including in response to any epidemic or pandemic), or any other cause not within its reasonable control. This Agreement is for the benefit of, and shall be binding upon, us and you. No third party shall be considered a third-party beneficiary hereunder. We may assign any or all of our rights and obligations under this Agreement to others at any time. You may not assign or transfer your rights or obligations under this Agreement without our prior written consent. You and we are independent contractors with respect to this Agreement and your access to and use of the SDK. There is no joint venture, partnership, employment or agency relationship created between you and us as a result of this Agreement. You acknowledge and represent that, in accepting this Agreement, you have had the opportunity to seek advice as to your legal rights from legal counsel and that you have read and understood all of the terms and provisions of this Agreement. As such, no ambiguity will be construed against us based upon a claim that we drafted the ambiguous language. Also, this Agreement is in the English language, which language will be controlling, even if interpretations of this Agreement in other languages are made. The headings appearing at the beginning of sections contained in this Agreement have been inserted for convenience only and will not be used to construe or interpret this Agreement. Whenever required by context, a singular term will include the plural, the plural term will include the singular, and the gender of any pronoun will include all genders. References to us and you will include our respective successors and/or permitted assignees. Any references to sections, paragraphs, and clauses are to the sections, paragraphs, and clauses of this Agreement. A reference to days shall mean calendar days and not business days or working days, unless otherwise stated in this Agreement. References to “include” and “including” will not be given a restrictive meaning and will be interpreted “without limitation.” The rights and recourse to remedies set forth in this Agreement will not, under any circumstances, be deemed to be exclusive. As such, each party reserves to it all rights and recourse to remedies afforded by applicable law. You hereby waive any and all defenses you may have based on the electronic form of this Agreement and the lack of signatures by the parties hereto.

CONTACT US

In order to resolve a complaint regarding access to or use of your User Account or the Portal or to receive further information from us about the Portal, please contact us at:

Pulse Labs AI, Inc.

370 S. 300 E, Suite 107
Salt Lake City, UT 84111
United States

FlightRecorder@pulselabs.ai