2.1              Provision of Thena Product.

                    (a)           Subject to the terms and conditions of this Agreement, Thena will make the ThenaProduct available to Customer pursuant to this Agreement, the Service Level Agreement provided belowin Exhibit A (the “SLA”) and the applicable Order Form, and hereby grants Customer a non-exclusive rightto access and use the Thena Product for its internal business purposes to augment its customercommunication capabilities.

                    (b)           If an applicable Order Form allows Customer to trial or evaluate the Thena Product, orany portion thereof, whether free of charge or for a reduced fee, or Customer is otherwise providedaccess to the Thena Product free of charge (each, a “Trial”), then Customer may exercise the rightsgranted in this Section solely during the trial period indicated in the Order Form or during the periodindicated by Thena. Thena reserves the right to suspend or terminate any Trial at any time.Notwithstanding anything contained herein, for any Trial, the Thena Product is provided “as is” withoutany representations, warranties or indemnities, and not subject to the SLA.

2.2            Data Security.

                    (a)           Thena will maintain a security program materially in accordance with industry standardsthat is designed to (i) ensure the security and integrity of Customer data uploaded by or on behalf ofCustomer to the Thena Product (“Customer Data”); (ii) protect against threats or hazards to the securityor integrity of Customer Data; and (iii) prevent unauthorized access to Customer Data. In furtherance ofthe foregoing, Thena will maintain the administrative, physical and technical safeguards to protect thesecurity of Customer Data that are described in the Thena security page located at https://www.thena.ai/security (the “Security Page”) posted as of the date of the initial Order Formhereunder (and as the Security Page may be updated by Thena in a manner that does not materiallydecrease the applicable protections).

                    (b)           To the extent that Thena processes any Personal Data (as defined in the DPA referencedbelow) contained in Customer Data that is subject to Data Protection Legislation (as defined in the DPA),on Customer’s behalf, in the provision of the Thena Product, the Data Processing Addendum (“DPA”)currently available at: https://www.thena.ai/data is hereby deemed incorporated herein by reference.

2.3           Customer Responsibilities.

                    (a)           Customer will (i) be responsible for all use of the Thena Product under its account,(ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Thena Productand notify Thena promptly of any such unauthorized access or use or any other known or suspectedbreach of security or misuse of the Thena Product and (iii) be responsible for obtaining and maintainingany equipment, software and ancillary services needed to connect to, access or otherwise use the ThenaProduct, including as set forth in the Documentation. Customer will be solely responsible for its failureto maintain such equipment, software and services, and Thena will have no liability for such failure(including under any service level agreement).

                    (b)           Customer will not use the Thena Product to transmit or provide to Thena any financialor medical information of any nature, or any sensitive personal data (e.g., social security numbers,driver’s license numbers, birth dates, personal bank account numbers, passport or visa numbers andcredit card numbers).

                    (c)          Customer shall be responsible for the content of all communications sent by its users viathe Thena Product. Customer agrees that it will not use the Thena Product to communicate anymessage or material that (i) is libellous, harmful to minors, obscene or constitutes pornography;(ii) infringes the intellectual property rights of any third party or is otherwise unlawful; or (iii) constitutesor encourages conduct that could constitute a criminal offense.

2.4           Affiliates. Any Affiliate of Customer will have the right to enter into an Order Form executed bysuch Affiliate and Thena and this Agreement will apply to each such Order Form as if such Affiliate werea signatory to this Agreement. With respect to such Order Forms, such Affiliate becomes a party to thisAgreement and references to Customer in this Agreement are deemed to be references to such Affiliate.Each Order Form is a separate obligation of the Customer entity that executes such Order Form, and noother Customer entity has any liability or obligation under such Order Form.

3.1              Fees. Customer will pay Thena the fees set forth in the applicable Order Form. Customer shallpay those amounts due and not disputed in good faith within thirty (30) days of the date of receipt of theapplicable invoice, unless a specific date for payment is set forth in such Order Form, in which casepayment will be due on the date specified. Except as otherwise specified herein or in any applicableOrder Form, (a) fees are quoted and payable in United States dollars and (b) payment obligations arenon-cancelable and non-pro-ratable for partial months, and fees paid are non-refundable. If Customer’spayment plan includes an ongoing subscription that is automatically renewed periodically, Customerhereby authorizes Thena to bill Customer’s payment instrument in advance on such periodic basis inaccordance with the terms of the applicable Order Form until the expiration or termination of theapplicable Order Form, and Customer further agrees to pay any and all charges so incurred.

3.2             Late Payment. Thena may suspend access to the Thena Product immediately upon notice ifCustomer fails to pay any amounts hereunder at least five (5) days past the applicable due date.

3.3             Taxes. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties,however designated (collectively “Taxes”). Customer will be solely responsible for payment of all Taxes,except for those taxes based on the income of Thena. Customer will not withhold any Taxes from anyamounts due to Thena.

4.1              Proprietary Rights. As between the parties, Thena exclusively owns all right, title and interest inand to the Thena Product, System Data and Thena’s Confidential Information, and Customer exclusivelyowns all right, title and interest in and to the Customer Data, and Customer’s Confidential Information.“System Data” means data collected by Thena regarding the Thena Product that may be used togenerate logs, statistics or reports regarding the performance, availability, usage, integrity or security ofthe Thena Product.

4.2             Feedback. Customer may from time to time provide Thena suggestions or comments forenhancements or improvements, new features or functionality or other feedback (“Feedback”) withrespect to the Thena Product. Thena will have full discretion to determine whether or not to proceedwith the development of any requested enhancements, new features or functionality. Thena will havethe full, unencumbered right, without any obligation to compensate or reimburse Customer, to use,incorporate and otherwise fully exercise and exploit any such Feedback in connection with its productsand services.

5.1             Confidentiality. Each party agrees that it will use the Confidential Information of the other partysolely in accordance with the provisions of this Agreement and it will not disclose the same directly orindirectly, to any third party without the other party’s prior written consent, except as otherwisepermitted hereunder. However, either party may disclose Confidential Information (a) to its employees,officers, directors, attorneys, auditors, financial advisors and other representatives who have a need toknow and are legally bound to keep such information confidential by confidentiality obligationsconsistent with those of this Agreement; and (b) as required by law (in which case the receiving partywill provide the disclosing party with prior written notification thereof, will provide the disclosing partywith the opportunity to contest such disclosure, and will use its reasonable efforts to minimize suchdisclosure to the extent permitted by applicable law. Neither party will disclose the terms of thisAgreement to any third party, except that either party may confidentially disclose such terms to actual orpotential lenders, investors or acquirers. Each party agrees to exercise due care in protecting theConfidential Information from unauthorized use and disclosure. In the event of actual or threatenedbreach of the provisions of this Section 5, the non-breaching party will be entitled to seek immediateinjunctive and other equitable relief, without waiving any other rights or remedies available to it. Eachparty will promptly notify the other in writing if it becomes aware of any violations of the confidentialityobligations set forth in this Agreement.

5.2             Technology Restrictions. Customer will not directly or indirectly: (a) reverse engineer, decompile,disassemble, modify, create derivative works of or otherwise create, attempt to create or derive, orpermit or assist any third party to create or derive, the source code underlying the Thena Product;(b) attempt to probe, scan or test the vulnerability of the Thena Product, breach the security orauthentication measures of the Thena Product without proper authorization or wilfully render any partof the Thena Product unusable; (c) use or access the Thena Product to develop a product or service thatis competitive with Thena’s products or Product or engage in competitive analysis or benchmarking;(d) transfer, distribute, resell, lease, license, or assign the Thena Product or otherwise offer the ThenaProduct on a standalone basis; or (e) otherwise use the Thena Product in violation of applicable law(including any export law) or outside the scope expressly permitted hereunder and in the applicableOrder Form.

6.1             Thena. Thena warrants that it will, consistent with prevailing industry standards, provide theThena Product in a professional and workmanlike manner and the Thena Product will conform in allmaterial respects with the Documentation. For material breach of the foregoing express warranty,Customer’s exclusive remedy shall be the re-performance of the deficient Thena Product or, if Thenacannot re-perform such deficient Thena Product as warranted within thirty (30) days after receipt ofwritten notice of the warranty breach, Customer shall be entitled to terminate the applicable OrderForm and recover a pro-rata portion of the prepaid subscription fees corresponding to the terminatedportion of the applicable subscription term.

6.2             Customer. Customer warrants that it has all rights necessary to provide any information, data orother materials that it provides hereunder, and to permit Thena to use the same as contemplatedhereunder.

6.3             DISCLAIMERS. EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY DISCLAIMS ANY AND ALLWARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, TITLE,NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THATTHE THENA PRODUCT IS INTENDED TO AUGMENT THE EFFICIENCY OF, BUT NOT REPLACE, CUSTOMER’SCUSTOMER COMMUNICATION SYSTEMS AND PROCESSES. THENA DOES NOT REPRESENT OR WARRANTTHAT THE THENA PRODUCT WILL BE ERROR-FREE. THENA IS NOT RESPONSIBLE OR LIABLE FOR ANYNON-THENA PRODUCTS, DOES NOT GUARANTEE THE CONTINUED AVAILABILITY THEREOF OR ANYINTEGRATION THEREWITH, AND MAY CEASE MAKING ANY SUCH INTEGRATION AVAILABLE IN ITSDISCRETION.

6.4             BETA PRODUCTS. FROM TIME TO TIME, CUSTOMER MAY HAVE THE OPTION TO PARTICIPATE IN APROGRAM WITH THENA WHERE CUSTOMER GETS TO USE ALPHA OR BETA PRODUCTS, FEATURES ORDOCUMENTATION (COLLECTIVELY, “BETA PRODUCTS”) OFFERED BY THENA. THE BETA PRODUCTS ARENOT GENERALLY AVAILABLE AND ARE PROVIDED “AS IS”. THENA DOES NOT PROVIDE ANY INDEMNITIES,SERVICE LEVEL COMMITMENTS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OFMERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE, IN RELATIONTHERETO. CUSTOMER OR THENA MAY TERMINATE CUSTOMER’S ACCESS TO THE BETA PRODUCTS ATANY TIME.

7.1             Indemnity by Thena. Thena will defend Customer against any claim, demand, suit, or proceeding(“Claim”) made or brought against Customer by a third party alleging that the use of the Thena Productas permitted hereunder infringes or misappropriates a United States patent, copyright or trade secretand will indemnify Customer for any damages finally awarded against Customer (or any settlementapproved by Thena) in connection with any such Claim; provided that (a) Customer will promptly notifyThena of such Claim, (b) Thena will have the sole and exclusive authority to defend and/or settle anysuch Claim (provided that Thena may not settle any Claim without Customer’s prior written consent,which will not be unreasonably withheld, unless it unconditionally releases Customer of all relatedliability) and (c) Customer reasonably cooperates with Thena in connection therewith. If the use of theThena Product by Customer has become, or in Thena’s opinion is likely to become, the subject of anyclaim of infringement, Thena may at its option and expense (i) procure for Customer the right tocontinue using and receiving the Thena Product as set forth hereunder; (ii) replace or modify the ThenaProduct to make it non-infringing (with comparable functionality); or (iii) if the options in clauses (i) or (ii)are not reasonably practicable, terminate the applicable Order Form and provide a pro rata refund of anyprepaid subscription fees corresponding to the terminated portion of the applicable subscription term.Thena will have no liability or obligation with respect to any Claim if such Claim is caused in whole or inpart by (A) compliance with designs, guidelines, plans or specifications provided by Customer; (B) use ofthe Thena Product by Customer not in accordance with this Agreement; (C) modification of the ThenaProduct by or on behalf of Customer; (D) Customer Confidential Information or (E) the combination,operation or use of the Thena Product with other products or services where the Thena Product wouldnot by itself be infringing (clauses (A) through (E), “Excluded Claims”). This Section states Thena’s soleand exclusive liability and obligation, and Customer’s exclusive remedy, for any claim of any naturerelated to infringement or misappropriation of intellectual property.

7.2             Indemnification by Customer. Customer will defend Thena against any Claim made or broughtagainst Thena by a third party arising out of the Excluded Claims, and Customer will indemnify Thena forany damages finally awarded against Thena (or any settlement approved by Customer) in connectionwith any such Claim; provided that (a) Thena will promptly notify Customer of such Claim, (b) Customerwill have the sole and exclusive authority to defend and/or settle any such Claim (provided thatCustomer may not settle any Claim without Thena’s prior written consent, which will not beunreasonably withheld, unless it unconditionally releases Thena of all liability) and (c) Thena reasonablycooperates with Customer in connection therewith.

EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, A BREACH OF SECTION 5 OR A PARTY’SINFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS,UNDER NO LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WILL EITHER PARTY BELIABLE TO THE OTHER UNDER THIS AGREEMENT FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL,CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING DAMAGES FOR LOSS OFGOODWILL, LOST PROFITS, LOST SALES OR BUSINESS, WORK STOPPAGE, COMPUTER FAILURE ORMALFUNCTION, LOST CONTENT OR DATA, EVEN IF A REPRESENTATIVE OF SUCH PARTY HAS BEENADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, OR (B) EXCLUDINGCUSTOMER’S PAYMENT OBLIGATIONS, ANY AGGREGATE DAMAGES, COSTS, OR LIABILITIES IN EXCESS OFTHE AMOUNTS PAID BY CUSTOMER UNDER THE APPLICABLE ORDER FORM DURING THE TWELVE (12)MONTHS PRECEDING THE CLAIM.

9.1             Term. The term of this Agreement will commence on the date of the initial Order Form andcontinue until terminated as set forth below. The initial term of each Order Form will begin on the startdate indicated in such Order Form and will continue for the subscription term set forth therein. Exceptas set forth in such Order Form, the term of such Order Form will automatically renew for successiverenewal terms equal to the length of the initial term of such Order Form, unless either party provides theother party with written notice of non-renewal at least thirty (30) days prior to the end of thethen-current term.

9.2             Termination. Each party may terminate this Agreement upon written notice to the other party ifthere are no Order Forms then in effect. Each party may also terminate this Agreement or the applicableOrder Form upon written notice in the event (a) the other party commits any material breach of thisAgreement or the applicable Order Form and fails to remedy such breach within thirty (30) days afterwritten notice of such breach or (b) subject to applicable law, upon the other party’s liquidation,commencement of dissolution proceedings or assignment of substantially all its assets for the benefit ofcreditors, or if the other party become the subject of bankruptcy or similar proceeding that is notdismissed within sixty (60) days.

9.3             Survival. Upon expiration or termination of this Agreement all rights and obligations willimmediately terminate except that any terms or conditions that by their nature should survive suchexpiration or termination will survive, including the License Restrictions and terms and conditionsrelating to proprietary rights and confidentiality, technology restrictions, disclaimers, indemnification,limitations of liability and termination and the general provisions below. Upon expiration or terminationof this Agreement, each party will return or destroy, at the other party’s option, any ConfidentialInformation of such party in the other party’s possession or control.

10.1             Insurance. Thena shall, during the term of this Agreement, maintain in force the following insurance coverage at its own cost and expense: (a) Statutory Worker’s Compensation and Employer’sLiability as required by state law with a minimum limit of $1,000,000 each accident / $1,000,000 each disease / $1,000,000 policy limit per occurrence, Disability and Unemployment Insurance, and all other insurance as required by law, including Employer’s Liability Insurance with limits of no less than $1,000,000 per occurrence, or any amount required by applicable law, whichever is greater; (b) Commercial General Liability, on an occurrence basis, including premises-operations, product completed-operations, broad form property damage, contractual liability, independent contractors and personal liability, with a minimum combined single limit of $1,000,000 per occurrence; and (c) Professional Errors and Omissions and Cyber Liability coverage covering the Thena Product, with coverage limits of not less than $2,000,000 per claim or per occurrence/$2,000,000 aggregate, placed either on an “occurrence” basis or on a “claims made” basis.

10.2             Publicity. Customer agrees that Thena may refer to Customer’s name and trademarks in Thena’smarketing materials and website; however, Thena will not use Customer’s name or trademarks in anyother publicity (e.g., press releases, customer references and case studies) without Customer’s priorwritten consent (which may be by email).

10.3             Assignment; Delegation. Neither party hereto may assign or otherwise transfer this Agreement,in whole or in part, without the other party’s prior written consent, except that either party may assignthis Agreement without consent to a successor to all or substantially all of its assets or business relatedto this Agreement. Any attempted assignment, delegation, or transfer by either party in violation hereofwill be null and void. Subject to the foregoing, this Agreement will be binding on the parties and theirsuccessors and assigns.

10.4             Amendment; Waiver.  Thena reserves the right in its sole discretion and at any time and for anyreason to modify these Terms and Conditions. With respect to each Order Form, any modifications tothese Terms and Conditions shall become effective upon the date of Customer’s next renewal of suchOrder Form. It is Customer’s responsibility to review these Terms and Conditions from time to time forany changes or modifications. If Customer does not agree to the modified Terms and Conditions,Customer may provide notice of Customer’s non-renewal at any point prior to the Customer’s nextrenewal. No waiver by either party of any breach or default hereunder shall be deemed to be a waiverof any preceding or subsequent breach or default. Any such waiver will be only to the specific provisionand under the specific circumstances for which it was given, and will not apply with respect to anyrepeated or continued violation of the same provision or any other provision. Failure or delay by eitherparty to enforce any provision of this Agreement will not be deemed a waiver of future enforcement ofthat or any other provision. The section headings used herein are for convenience only and shall not begiven any legal import.

10.5             Relationship. Nothing contained herein will in any way constitute any association, partnership,agency, employment or joint venture between the parties hereto, or be construed to evidence theintention of the parties to establish any such relationship. Neither party will have the authority toobligate or bind the other in any manner, and nothing herein contained will give rise or is intended togive rise to any rights of any kind to any third parties.

10.6             Unenforceability. If a court of competent jurisdiction determines that any provision of thisAgreement is invalid, illegal, or otherwise unenforceable, such provision will be enforced as nearly aspossible in accordance with the stated intention of the parties, while the remainder of this Agreementwill remain in full force and effect and bind the parties according to its terms.

10.7             Governing Law. This Agreement will be governed by the laws of the State of California, exclusiveof its rules governing choice of law and conflict of laws. This Agreement will not be governed by theUnited Nations Convention on Contracts for the International Sale of Goods.

10.8             Notices. Any notice required or permitted to be given hereunder will be given in writing bypersonal delivery, certified mail, return receipt requested, or by overnight delivery. Notices to Customermay be sent to the address listed on the Customer’s applicable Order Form or email address provided byCustomer when Customer creates its Thena Product account. Notices to Thena must be sent to thefollowing:

Pivoting Owl, Inc.
Pivoting Owl Inc
548 Market St, San Francisco, CA 94104

10.9             Entire Agreement. This Agreement comprises the entire agreement between Customer andThena with respect to its subject matter, and supersedes all prior and contemporaneous proposals,statements, sales materials or presentations and agreements (oral and written). No oral or writteninformation or advice given by Thena, its agents or employees will create a warranty or in any wayincrease the scope of the warranties in this Agreement

10.10            Force Majeure. Neither Party will be deemed in breach hereunder for any cessation,interruption or delay in the performance of its obligations due to causes beyond its reasonable control(“Force Majeure Event”), including earthquake, flood, or other natural disaster, act of God, laborcontroversy, civil disturbance, terrorism, war (whether or not officially declared), cyber attacks (e.g.,denial of service attacks), or the inability to obtain sufficient supplies, transportation, or other essentialcommodity or service required in the conduct of its business, or any change in or the adoption of anylaw, regulation, judgment or decree.

10.11             Government Terms. Thena provides the Thena Product, including related software andtechnology, for ultimate federal government end use solely in accordance with the terms of thisAgreement. If Customer is an agency, department, or other entity of any government, the use,duplication, reproduction, release, modification, disclosure, or transfer of the Thena Product, or anyrelated documentation of any kind, including technical data, software, and manuals, is restricted by theterms of this Agreement. All other use is prohibited and no rights than those provided in this Agreementare conferred. The Thena Product was developed fully at private expense.

10.12            Interpretation. For purposes hereof, “including” means “including without limitation”.

SLA

Availability Commitment.

The Thena Product will be Available 99.5% of the time, measuredly on a calendar monthly basis(the “Availability Commitment”). “Availability” means that the Thena Product is available to be used tosupport, service and communicate with Customer’s customers. Availability measures will not includedowntime resulting from:
         ●        Upgrades: Customer will receive prior notice by email of Thena’s upgrade windows, which will bescheduled to the extent feasible. Downtime due to upgrades will not exceed 2 hours per month.
         ●         Pre-scheduled maintenance periods: Customer will receive at least 24 hoursprior notification byemail of pre-scheduled maintenance periods. Downtime due to pre-scheduled maintenance willnot exceed 2 hours per month.
         ●         Emergency maintenance periods: Customer will receive prior notification by email on acommercially reasonable efforts basis. These maintenance periods will involve applying criticalsecurity patches and other emergency repairs to the Thena infrastructure.

The Availability Commitment does not apply to any downtime of the Thena Product that results from:
          ●        Account suspension or termination due to Customer’s breach of the Agreement;
          ●        Disengagement of functionality of the Thena Product due to Customer’s request;
          ●        Force Majeure Events; or
          ●        Customer’s or its service provider’s equipment, software or other technology.

Thena will provide Customer with reports on Availability upon request.

Credit.

If Thena fails to achieve the above Availability for the Thena Product, Customer may claim a credit basedon a monthly pro-rated amount of the annual subscription fee, as provided below.

Customer will not be entitled to a credit if it is in breach of this Agreement, including its paymentobligations. To receive a credit, a Customer must file a claim for such credit within five (5) days followingthe end of the month in which the Availability Commitment was not met by contacting Thena atsupport@thena.ai with a complete description of the downtime, how Customer was adversely affected,and for how long.The credit remedy set forth in this Service Level Agreement is Customer’s sole and exclusive remedy forthe unavailability of the Thena Product.

Customer Support.

Thena live technical support business hours will be available 24 hours for 5 working days betweenMonday to Friday. Technical support can be contacted via email at support@thena.ai or via sharedchannels in the customer communication platform.

Communication Channels:

Live technical support will not be available on Christmas Day (December 25) and New Year’s Day (January1). Limited technical support will be available during the hours listed above during Thena holidays. Thecurrent Thena holidays are set forth below:
           ●        Presidents Day (third Monday of February)
           ●        Memorial Day (last Monday of May)
           ●        Independence Day (July 4)
           ●        Labor Day (first Monday of September)
           ●        Thanksgiving Day (fourth Thursday in November)
           ●        Christmas Eve (December 24) 
           ●        New Year’s Eve (December 31)