2.1 Access and Use. Subject to and conditioned on Customer and its Authorized Users' compliance with the terms and conditions of this Agreement and the related Ordering Document, PHTN.ai hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 15.8) right to access and use the Services described in the applicable Ordering Document during the period Customer has an active Ordering Document, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer's internal use. PHTN.ai shall provide to Customer the Access Credentials at the time specified in the applicable Ordering Document.

2.2 Documentation License. PHTN.ai hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 15.8) license to use the Documentation during the Term solely for Customer's internal business purposes in connection with its use of the Services.

2.3 Service and System Control. Except as otherwise expressly provided in this Agreement, as between the parties:

1. PHTN.ai has and will retain sole control over the operation, provision, maintenance, and management of the PHTN.ai Materials; and
2. Customer has and will retain sole control over the operation, maintenance, and management of, and all access to and use of, the Customer Systems, and sole responsibility for all access to and use of the PHTN.ai Materials by any Person by or through the Customer Systems or any other means controlled by Customer or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the Services or PHTN.ai; (ii) results obtained from any use of the Services or PHTN.ai Materials; and (iii) conclusions, decisions, or actions based on such use.

2.4 Reservation of Rights. Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, PHTN.ai Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the PHTN.ai Materials, and the Third-Party Materials are and will remain with PHTN.ai and the respective rights holders in the Third-Party Materials.

2.5 Changes. PHTN.ai reserves the right, in its sole discretion, to make any changes to the Services and PHTN.ai Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of PHTN.ai's services to its customers; (ii) the competitive strength of or market for PHTN.ai's services; or (iii) the Services' cost efficiency or performance; or (b) to comply with applicable Law.

2.6 Subcontractors. PHTN.ai may from time to time in its discretion engage third parties to perform Services (each, a Subcontractor).

2.7 Suspension or Termination of Services. PHTN.ai may, directly or indirectly, and by use of a PHTN.ai Disabling Device or any other lawful means, suspend, terminate, or otherwise deny Customer's, any Authorized User's, or any other Person's access to or use of all or any part of the Services or PHTN.ai Materials, without incurring any resulting obligation or liability, if: (a) PHTN.ai receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires PHTN.ai to do so; or (b) PHTN.ai believes, in its good faith and reasonable discretion, that: (i) Customer or any Authorized User has failed to comply with any material term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Ordering Document or Documentation; (ii) Customer or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities; or (iii) this Agreement expires or is terminated. This Section does not limit any of PHTN.ai's other rights or remedies, whether at law, in equity, or under this Agreement.

3.1 Use Restrictions. Customer shall not, and shall not permit any other Person to, access or use the Services or PHTN.ai Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Customer shall not, except as this Agreement expressly permits:

1. copy, modify, or create derivative works or improvements of the Services or PHTN.ai Materials;
2. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or PHTN.ai Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
3. reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or PHTN.ai Materials, in whole or in part;
4. bypass or breach any security device or protection used by the Services or PHTN.ai Materials or access or use the Services or PHTN.ai Materials other than by an Authorized User through the use of their own then valid Access Credentials;
5. input, upload, transmit, or otherwise provide to or through the Services or PHTN.ai Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
6. damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, PHTN.ai Systems, or PHTN.ai’s provision of services to any third party, in whole or in part;
7. remove, delete, alter, or obscure any trademarks, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Third-Party Materials, Services or PHTN.ai Materials, including any copy thereof;
8. access or use the Third-Party Materials, Services or PHTN.ai Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable Law;
9. access or use the Services or PHTN.ai Materials for purposes of competitive analysis of the Services or PHTN.ai Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the PHTN.ai's detriment or commercial disadvantage; or
10. access or use the Services or PHTN.ai Materials in, or in association with, the design, construction, maintenance, or operation of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services could lead to personal injury or severe physical or property damage; or
11. otherwise access or use the Services or PHTN.ai Materials beyond the scope of the authorization granted under this Section 3.1.

3.2 Service Usage.The Ordering Document shall set forth Fees for designated number of sub-agent(s) and/or super-agent(s) based on Customer’s Ordering Document (each a Service Allocation). If Customer desires to increase its usage, or its usages are higher than initially forecasted, Customer may increase its Service Allocation with an additional Ordering Document. If Customer exceeds its Service Allocation for any relevant period, Customer shall also pay to PHTN.ai the Fees for the excess sub-agent(s) and/or super-agent(s) in the amounts established by PHTN.ai. Customer acknowledges that exceeding its then-current Service Allocation may result in service degradation for Customer and other PHTN.ai customers and agrees that:

1. PHTN.ai has no obligation to permit Customer to exceed its then-current Service Allocation; and
2. Customer is not entitled to any Service Level Credits for periods during which Customer exceeds its then-current Service Allocation, regardless of whether the Services fail to meet the Availability Requirement during such period.

4.1 Customer Systems and Cooperation. Customer shall at all times during the Term: (a) set up, maintain, and operate in good repair and in accordance with the Ordering Document and Documentation all Customer Systems on or through which the Services are accessed or used; (b) Customer Systems must include at least one large language model ('LLM') or similar tool of Customer's choice in order for the Agentic AI Solutions to function; (c) Customer Systems must include sufficient cloud computing resources to support and interface with the Agentic AI Solutions, such as a large-scale cloud service provider (also known as a 'Hyperscaler') or a sufficient private cloud; (d) provide PHTN.ai Personnel with such access to Customer's premises and Customer Systems as is necessary for PHTN.ai to provide the Services in accordance with the Availability Requirement and Documentation; and (e) provide all cooperation and assistance as PHTN.ai may reasonably request to enable PHTN.ai to exercise its rights and perform its obligations under and in connection with this Agreement.

4.2 Effect of Customer Failure or Delay. PHTN.ai is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer's delay in performing, or failure to perform, any of its obligations under this Agreement (each, a Customer Failure).

4.2 Corrective Action and Notice. If Customer becomes aware of any actual or threatened activity prohibited by Section 3.1, Customer shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and PHTN.ai Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify PHTN.ai of any such actual or threatened activity.

5.1 Service Levels. Subject to the terms and conditions of this Agreement, PHTN.ai will use commercially reasonable efforts to make the Services Available at least ninety-nine and one half percent (99.5%) of the time as measured over the course of each calendar month during the Term (each such calendar month, a 'Service Period'), excluding unavailability as a result of any of the Exceptions described below in this Section 5.1 (the 'Availability Requirement'). 'Service Level Failure' means a material failure of the Services to meet the Availability Requirement. 'Available' means the Services are available for access and use by Customer and its Authorized Users over the Internet and operating in material accordance with the Ordering Document and/or Documentation. For purposes of calculating the Availability Requirement, the following are 'Exceptions' to the Availability Requirement, and neither the Services will be considered un-Available nor any Service Level Failure be deemed to occur in connection with any failure to meet the Availability Requirement or impaired ability of Customer or its Authorized Users to access or use the Services that is due, in whole or in part, to any: (a) act or omission by Customer or any Authorized User; (b) Customer Failure; (c) Customer’s or its Authorized User’s Internet connectivity; (d) Force Majeure Event; (e) failure, interruption, outage, or other problem with any software, hardware, system, network, facility, or other matter not supplied by PHTN.ai pursuant to this Agreement; (f) Scheduled Downtime; or (g) disabling, suspension, or termination of the Services pursuant to Section 2.8.

5.2 Scheduled Downtime. PHTN.ai will use commercially reasonable efforts to give Customer at least forty-eight (48) hours prior notice of all scheduled outages of the Services ('Scheduled Downtime').

7.1 Information Security. PHTN.ai will employ security measures in accordance with PHTN.ai’s data privacy and security policies, as amended from time to time, a current summary of which is set forth in Exhibit A.

7.2 Data Breach Procedures. PHTN.ai maintains a data breach plan in accordance with the criteria summarized in Exhibit A and shall implement the procedures required under such data breach plan on the occurrence of a data breach (as defined in such plan).

7.3 Customer Control and ResponsibilityCustomer has and will retain sole responsibility for: (a) all Customer Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Customer or any Authorized User in connection with the Services; (c) Customer Systems; (d) the security and use of Customer’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and PHTN.ai Materials directly or indirectly by or through the Customer Systems or its or its Authorized Users’ Access Credentials, with or without Customer's knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.

7.4 Access and Security. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to:

(a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; and

(b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for Processing by the Services.

8.1 Fees. Customer shall pay PHTN.ai the fees set forth in the applicable ordering document, and in accordance with this Section 8. Except as expressly set forth in this Agreement and to the extent permitted by law, all payment obligations are non-cancelable, and Fees are non-refundable.

8.2Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on PHTN.ai's income.

8.3 Payment. Customer shall pay all Fees when and as agreed in the applicable Ordering Document. Customer shall make all payments hereunder in US dollars by wire or electronic funds transfer. Customer shall make payments to the address or account specified in the Ordering Document or such other address or account as PHTN.ai may specify in writing from time to time.

8.4 Late Payment. If Customer fails to make any payment when due then, in addition to all other remedies that may be available:

1. 1. PHTN.ai may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
   2. Customer shall reimburse PHTN.ai for all costs incurred by PHTN.ai in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and
   3. if such failure continues for fifteen (15) days following written notice thereof, PHTN.ai may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Customer or any other Person by reason of such suspension.

8.5 No Deductions or Setoffs. All amounts payable to PHTN.ai under this Agreement shall be paid by Customer to PHTN.ai in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).

8.6 Fee Increases.PHTN.ai may increase Fees after the Initial Term, including any contract year of any Renewal Term, and the ordering document will be deemed amended accordingly.

8.7 Reimbursable Expenses. Customer shall reimburse PHTN.ai for out-of-pocket expenses incurred by PHTN.ai in connection with performing the Services ('Reimbursable Expenses').

8.8 Audits.

1. Audit Procedure. PHTN.ai or its nominee (including its accountants and auditors) may, on reasonable request, inspect and audit Customer’s use of the Services under this Agreement at any time during the Term and for three (3) years following the termination or earlier expiration of this Agreement. All audits will be conducted during regular business hours, and no more frequently than once per year, and in a manner that does not unreasonably interfere with Customer’s business operations. Customer shall make available all such books, records, equipment, information, and personnel, and provide all such cooperation and assistance, as may reasonably be requested by or on behalf of PHTN.ai with respect to such audit.
2. Cost and Results of Audit. If the audit determines that Customer's use of the Services exceeded the usage permitted by this Agreement, Customer shall pay to PHTN.ai all amounts due for such excess use of the Services, plus interest on such amounts, as calculated pursuant to Section 8.4. If the audit determines that such excess use equals or exceeds 10% of Customer’s permitted level of use, Customer shall also pay to PHTN.ai all costs incurred by PHTN.ai in conducting the audit. Customer shall make all payments required under this Section 8.8 within thirty (30) days of the date of written notification of the audit results.

1. not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
2. except as may be permitted by and subject to its compliance with Section 9.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 9.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9;
3. safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
4. promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and
5. ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 9.
6. The confidentiality obligations under this Section 9 shall survive the expiration or termination of this Agreement for a period of five (5) years.
7. Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 9 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.

10.1 PHTN.ai Materials. All right, title, and interest in and to the PHTN.ai Materials, including all Intellectual Property Rights therein, are and will remain with PHTN.ai and, with respect to Third-Party Materials, the applicable third-party provider’s own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. Customer has no right, license, or authorization with respect to any of the PHTN.ai Materials except as expressly set forth in Section 2.1 or the applicable third-party license, in each case subject to Section 3.1. All other rights in and to the PHTN.ai Materials are expressly reserved by PHTN.ai. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to PHTN.ai an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.

10.2 Customer Data. As between Customer and PHTN.ai, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 10.3. To the extent necessary, and to the extent permitted by applicable law, PHTN.ai assigns to Customer all right, title and interest, if any, to any and all Customer Data generated or created by the Services.

10.3 Consent to Use Customer Data. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to PHTN.ai, its Subcontractors, and the PHTN.ai Personnel to enforce this Agreement and exercise PHTN.ai’s, its Subcontractors’, and the PHTN.ai Personnel’s rights and perform PHTN.ai’s, its Subcontractors’, and the PHTN.ai Personnel’s obligations hereunder.

11.1 Mutual Representations and Warranties. Each party represents and warrants to the other party that:

1. it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
2. it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement;
3. the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and
4. when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.

11.2 Additional PHTN.ai Representations, Warranties, and Covenants.PHTN.ai represents, warrants, and covenants to Customer that PHTN.ai will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.

11.3 Additional Customer Representations, Warranties, and Covenants. Customer represents, warrants, and covenants to PHTN.ai that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data so that, as received by PHTN.ai and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.

11.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 11.1 AND SECTION 11.2, ALL SERVICES AND PHTN.AI MATERIALS ARE PROVIDED “AS IS.” PHTN.AI SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PHTN.AI MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR PHTN.AI MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

12.1 PHTN.ai Indemnification. PHTN.ai shall indemnify, defend, and hold harmless Customer and Customer’s officers, directors, employees, agents, permitted successors, and permitted assigns (each, a 'Customer Indemnitee') from and against any and all Losses incurred by a Customer Indemnitee resulting from any Action by a third party (other than an Affiliate of a Customer Indemnitee) that Customer’s use of the Services (excluding Customer Data and Third-Party Materials) in accordance with this Agreement infringes or misappropriates such third party's Intellectual Property Rights. The foregoing obligation does not apply if the alleged infringement arises, in whole or part, from:

1. Third-Party Materials or Customer Data;
2. access to or use of the PHTN.ai Materials in combination with any hardware, system, software, network, or other materials or services not provided by PHTN.ai or specified for Customer’s use in the Documentation;
3. modification of the PHTN.ai Materials other than by or on behalf of PHTN.ai;
4. failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of PHTN.ai; 
5. PHTN.ai following, implementing, or complying with the Customer’s functional specifications, design directions or coding instructions; or
6. act, omission, or other matter described in Section 12.2(a), Section 12.2(b), Section 12.2(c), or Section 12.2(d), whether or not the same results in any Action against or Losses by any PHTN.ai Indemnitee.

12.2 Customer Indemnification. Customer shall indemnify, defend, and hold harmless PHTN.ai and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a 'PHTN.ai Indemnitee') from and against any and all Losses incurred by such PHTN.ai Indemnitee resulting from any Action by a third party (other than an Affiliate of a PHTN.ai Indemnitee) that arise out of or result from:

1. Customer Data, including any Processing of Customer Data by or on behalf of PHTN.ai in accordance with this Agreement;
2. any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including PHTN.ai’s compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by PHTN.ai;
3. allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants, or obligations under this Agreement; or
4. negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with this Agreement.

12.3 Indemnification Procedure.Each party shall promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to Section 12.1 or Section 12.2, as the case may be. The party seeking indemnification (the 'Indemnitee') shall cooperate with the other party (the 'Indemnitor') at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee's prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee's failure to perform any obligations under this Section 12.3 will not relieve the Indemnitor of its obligations under this Section 12, except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure.

12.4 Mitigation. If any of the Services or PHTN.ai Materials are, or in PHTN.ai’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s or any Authorized User’s use of the Services or PHTN.ai Materials is enjoined or threatened to be enjoined, PHTN.ai may, at its option and sole cost and expense:

1. obtain the right for Customer to continue to use the Services and PHTN.ai Materials materially as contemplated by this Agreement;
2. modify or replace the Services and PHTN.ai Materials, in whole or in part, to seek to make the Services and PHTN.ai Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and PHTN.ai Materials, as applicable, under this Agreement; or
3. by written notice to Customer, terminate this Agreement with respect to all or part of the Services and PHTN.ai Materials, and require Customer to immediately cease any use of the Services and PHTN.ai Materials or any specified part or feature thereof, provided that if such termination occurs Customer will be entitled to a pro rata of any pre-paid Fees, subject to Customer’s compliance with its post-termination obligations set forth in Section 14.4.

12.5 Sole Remedy. THIS SECTION 12 SETS FORTH CUSTOMER’S SOLE REMEDIES AND PHTN.AI’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND PHTN.AI MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

13.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL PHTN.AI BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

13.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF PHTN.AI ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO PHTN.AI AS FEES UNDER THE APPLICABLE ORDERING DOCUMENT. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

14.1 Initial Term The Agreement commences when Customer’s first Ordering Document comes into effect, unless terminated earlier pursuant any of the Agreement’s express provisions, will continue for so long as Customer has a valid Ordering Document. Termination In addition to any other express termination right set forth elsewhere in this Agreement:

1. PHTN.ai may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after PHTN.ai's delivery of written notice thereof; or (ii) breaches any of its obligations under Section 3.1, Section 7.3, or Section 9;
2. either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; and
3. either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

14.2 Effect of Termination or Expiration Upon any expiration or termination of this Agreement, except as expressly otherwise provided in this Agreement:

1. all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate;
2. PHTN.ai shall immediately cease all use of any Customer Data or Customer’s Confidential Information and (i) promptly return to Customer, or at Customer’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Customer Data or Customer’s Confidential Information; and (ii) permanently erase all Customer Data and Customer's Confidential Information from all systems PHTN.ai directly or indirectly controls, provided that, for clarity, PHTN.ai’s obligations under this Section 14.4(b) do not apply to any Resultant Data;
3. Customer shall immediately cease all use of any Services or PHTN.ai Materials and (i) promptly return to PHTN.ai, or at PHTN.ai’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any PHTN.ai Materials or PHTN.ai’s Confidential Information; and (ii) permanently erase all PHTN.ai Materials and PHTN.ai’s Confidential Information from all systems Customer directly or indirectly controls;
4. notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party’s Confidential Information; and (ii) PHTN.ai may retain Customer Data, in the case of each of subclause (i) and (ii) in its then current state and solely to the extent and for so long as required by applicable Law; (iv) PHTN.ai may also retain Customer Data in its backups, archives, and disaster recovery systems until such Customer Data is deleted in the ordinary course; and (v) all information and materials described in this Section 14.4(d) will remain subject to all confidentiality, security, and other applicable requirements of this Agreement;
5. PHTN.ai may disable all Customer and Authorized User access to the PHTN.ai Materials;
6. if Customer terminates this Agreement pursuant to Section 14.3(b), Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and PHTN.ai will refund to Customer Fees paid in advance for Services that PHTN.ai has not performed as of the effective date of termination;
7. if PHTN.ai terminates this Agreement pursuant to Section 14.3(a) or Section 14.3(b), all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Customer shall pay such Fees, together with all previously accrued but not yet paid Fees and Reimbursable Expenses, on receipt of PHTN.ai's invoice therefor; and
8. if Customer requests in writing at least ninety (90) days prior to the effective date of expiration or termination, subject to Section 14.4(d), PHTN.ai shall, within ninety (90) days following such expiration or termination, deliver to Customer the then most recent version of Customer Data maintained by PHTN.ai, provided that Customer has at that time paid all Fees and Reimbursable Expenses then outstanding and any amounts payable after or as a result of such expiration or termination, including any expenses and fees, on a time and materials basis, for PHTN.ai’s services in transferring such Customer Data.

14.3 Surviving Terms.The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3.1, Section 9, Section 11.4, Section 12, Section 13, Section 14.4, this Section 14.5, and Section 15.

Notices sent in accordance with this Section 15.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by email, with confirmation of transmission, if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the 10th day after the date mailed by certified or registered mail, return receipt requested, postage prepaid. 

15.5 Interpretation. For purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
15.6 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

15.7 Entire Agreement. This Agreement, together any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related exhibits, schedules, attachments, and appendices (other than an exception expressly set forth as such therein) and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, this Agreement, excluding its exhibits, schedules, attachments, and appendices; (b) second, the exhibits, schedules, attachments, and appendices to this Agreement; (c) third, the Ordering Document, and (d) fourth, any other documents incorporated herein by reference.

15.8 Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without PHTN.ai’s prior written consent, which consent shall not be unreasonably withheld, conditioned, or delayed. No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 15.8 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.

15.9 Force Majeure.No Breach or Default. In no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control (a “Force Majeure Event”), including (i) acts of God; (ii) flood, fire, earthquake, epidemics, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; and (vi) national or regional emergency. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of thirty (30) days or more.Affected Party Obligations.In the event of any failure or delay caused by a Force Majeure Event, the affected party shall give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

15.10 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

15.11 Amendment and Modification; Waiver. PHTN.ai may update this Agreement by providing Customer with reasonable notice, including by posting the update on PHTN.ai’s website. If PHTN.ai determines in its sole judgment that an update materially impacts Customer’s rights or obligations, PHTN.ai will provide Customer at least thirty days’ notice before the update is effective, unless the update is necessary for PHTN.ai to comply with applicable law, in which case PHTN.ai will provide Customer with as much notice as reasonably possible. Any other updates will be effective on the date PHTN.ai posts the updated Agreement. Customer’s continued use of, or access to, the Services after an update is effective constitutes acceptance of the update. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

15.12 Severability If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

15.13 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in New York, New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.

15.14 Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 9 or, in the case of Customer, Section 3.1, Section 4.3, or Section 7.3, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

15.15 Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to this Agreement, the prevailing party is entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.

15.16 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement. Each party agrees that electronic signatures of the parties may be used to authenticate this writing and shall have the same force and effect as manual signatures.