ARTEMIS AGREEMENT

‍SOFTWARE AS A SERVICE AGREEMENT

This Software as a Service Agreement (“Agreement”) governs access to and use of the Artemis™ software platform and related services.

By  (a)  clicking “I agree,” (b) creating an account, (c) executing an order form or subscription, or (d) accessing or using the Services, you agree to be bound by this Agreement on behalf of yourself or the entity you represent.

Access to the Services may be provided pursuant to an online subscription, usage-based plan, credit package, or written order form (“Order Form”).

Any Order Form accepted online or in writing is incorporated into this Agreement by reference.

WHEREAS, Monalee (DBA Artemis) provides access to its software-as-a-service offerings to its customers; 

1. Definitions.

WHEREAS, Customer desires to access and use software-as-a-service made commercially available to customers by Monalee as ArtemisTM (“Services”) and Monalee desires to provide Customer access to the Services, subject to the terms and conditions set forth in this Agreement.

  1. "Access Credentials" means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, used alone or in combination, to verify an individual's identity and authorization to access and use the Services.
  2. "Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
  3. "Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term "control" (including the terms "controlled by" and "under common control with") means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
  4. "Authorized Users" means Customer's employees, consultants, contractors, and agents (a) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (b) for whom access to the Services has been purchased hereunder.
  5. "Confidential Information" has the meaning set forth in 7.1 (Confidential Information).
  6. "Customer" means the individual or legal entity that accepts this Agreement or accesses or uses the Services. If you accept this Agreement on behalf of an entity, you represent that you have authority to bind that entity.
  7. "Customer Data" means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Customer or an Authorized User by or through the Services.  For the avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User.
  8. "Customer Failure" has the meaning set forth in 4.2 (Effect of Customer Failure or Delay).
  9. "Customer Systems" means the Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services.
  10. "Disclosing Party" has the meaning set forth in 7.1 (Confidential Information).
  11. "Documentation" means any manuals, instructions, or other documents or materials that Monalee provides or makes available to Customer in any form or medium and which describe the functionality, components, features, or requirements of the Services or Monalee Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
  12. "Effective Date" has the meaning set forth in the preamble.
  13. "Feedback" has the meaning set forth in 8.4 (Feedback).
  14. "Fees" has the meaning set forth in 6.1 (Fees).
  15. "Force Majeure Event" has the meaning set forth in 13.9 (Force Majeure).
  16. "Harmful Code" means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Customer or any Authorized User from accessing or using the Services or Monalee Systems as intended by this Agreement. Harmful Code does not include any Monalee Disabling Device. 
  17. "Initial Term" has the meaning set forth in 12.1 (Initial Term).
  18. "Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
  19. "Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction. 
  20. "Losses" means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
  21. "Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
  22. "Process" means to take any action or perform any operation or set of operations that the SaaS Services are capable of taking or performing on any data, information, or other content. "Processing" and "Processed" have correlative meanings.
  23. "Monalee Disabling Device" means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by Monalee or its designee to disable Customer's or any Authorized User's access to or use of the Services automatically with the passage of time or under the positive control of Monalee or its designee.
  24. "Monalee Indemnitee" has the meaning set forth in 10.1 (Customer Indemnification).
  25. "Monalee Materials" means the Services, Specifications, Documentation, and Monalee Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Monalee or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Monalee Systems. For the avoidance of doubt, Monalee Materials include Resultant Data and any information, data, or other content derived from Monalee's monitoring of Customer's access to or use of the Services, but do not include Customer Data.
  26. "Monalee Personnel" means all individuals involved in the performance of Services as employees, agents, or independent contractors of Monalee or any Subcontractor.
  27. "Monalee Systems" means the information technology infrastructure used by or on behalf of Monalee in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Monalee or through the use of third-party services.
  28. "Receiving Party" has the meaning set forth in 9.1 (Confidential Information).
  29. "Renewal Term" has the meaning set forth in 12.2 (Renewal Term).
  30. "Representatives" means, with respect to a party, that party's and its Affiliates' employees, officers, directors, employees, agents, service providers, sublicensees, subcontractors, and legal advisors. 
  31. "Resultant Data" means data and information related to Customer's use of the Services that is used by Monalee in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
  32. "Services" has the meaning set forth in the preamble. 
  33. "Specifications" means the specifications for the Services.  
  34. "Subcontractor" has the meaning set forth in 2.6 (Subcontractors)
  35. "Term" has the meaning set forth in 14.2 (Renewal Term). 
  36. "Third-Party Materials" means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Monalee. 

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

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2. Services.

  1. "Access and Use". Subject to and conditioned on Customer's and its Authorized Users' compliance with the terms and conditions of this Agreement, Monalee hereby grants Customer a non-exclusive, non-transferable (except in compliance with 13.8 (Assignment)) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer's internal use. 
  2. "Documentation License". Monalee hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with 13.8 (Assignment)) license to use the Documentation during the Term solely for Customer's internal business purposes in connection with its use of the Services.
  3. "Service and System Control". Except as otherwise expressly provided in this Agreement, as between the parties:
    1. Monalee has and will retain sole control over the operation, provision, maintenance, and management of the Monalee 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 Monalee 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 Monalee; (ii) results obtained from any use of the Services or Monalee Materials; and (iii) conclusions, decisions, or actions based on such use.
  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, Monalee Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the Monalee Materials, and the Third-Party Materials are and will remain with Monalee and the respective rights holders in the Third-Party Materials.
  5. "Changes". Monalee reserves the right, in its sole discretion, to make any changes to the Services and Monalee Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Monalee's services to its customers; (ii) the competitive strength of or market for Monalee's services; or (iii) the Services' cost efficiency or performance; or (b) to comply with applicable Law. 
  6. "Subcontractors". Monalee may from time to time in its discretion engage third parties to perform Services (each, a "Subcontractor"). 
  7. "Suspension or Termination of Services". Monalee may, directly or indirectly, and by use of a Monalee 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 Monalee Materials, without incurring any resulting obligation or liability, if: (a) Monalee receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Monalee to do so; or (b) Monalee believes, in its sole discretion, that: (i) Customer or any Authorized User has failed to comply with any 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 Specifications; (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 2.7 (Suspension or Termination of Service) does not limit any of Monalee's other rights or remedies, whether at law, in equity, or under this Agreement.

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3. Use Restrictions; Service Usage and Data Storage. 

Use Restrictions. Customer shall not, and shall not permit any other person to, access or use the Services or Monalee 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 Monalee Materials;
  2. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or Monalee 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 Monalee Materials, in whole or in part;
  4. bypass or breach any security device or protection used by the Services or Monalee Materials or access or use the Services or Monalee Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
  5. input, upload, transmit, or otherwise provide to or through the Services or Monalee 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, Monalee Systems, or Monalee's provision of services to any third party, in whole or in part;
  7. remove, delete, alter, or obscure any trademarks, Specifications, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or Monalee Materials, including any copy thereof;
  8. access or use the Services or Monalee 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 Monalee Materials for purposes of competitive analysis of the Services or Monalee Materials, the development, provision, or use of a competing software service or product or any other purpose that is to Monalee's detriment or commercial disadvantage; or
  10. otherwise access or use the Services or Monalee Materials beyond the scope of the authorization granted under this Section 3.1 (Use Restrictions).

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4. Customer Obligations.

    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 Specifications all Customer Systems on or through which the Services are accessed or used; and (b) provide all cooperation and assistance as Monalee may reasonably request to enable Monalee to exercise its rights and perform its obligations under and in connection with this Agreement.
    2. "Effect of Customer Failure or Delay". Monalee 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"). 
    3. "Corrective Action and Notice". If Customer becomes aware of any actual or threatened activity prohibited by 3.1 (Use Restrictions), 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 Monalee Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Monalee of any such actual or threatened activity. 
    4. "Non-Solicitation". During the Term and for two (2) years after, Customer shall not, and shall not assist any other Person to, directly or indirectly, recruit or solicit other than by general advertisement not directed specifically to any Person or Persons for employment or engagement as an independent contractor any Person then or within the prior twelve (12) months employed or engaged by Monalee or any Subcontractor and involved in any respect with the Services or the performance of this Agreement. In the event of a violation of this Section 4.4 (Non-Solicitation), Monalee will be entitled to liquidated damages equal to at least the compensation paid by Monalee to the applicable employee or contractor during the prior twelve (12) months.  

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    5. SECURITY. 

    1. Information Security. Monalee shall employ security measures in accordance with industry standards to protect data privacy and security.
    2. Customer Control and Responsibility. Customer 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's information technology infrastructure, including computers, software, databases, electronic systems (including database management systems), and networks, whether operated directly by Customer or through the use of third-party services ("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 Monalee 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.
    3. 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.

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    6. FEES AND PAYMENT.

    1. "Fees". Customer shall pay Monalee the fees set forth in Exhibit B ("Fees") in accordance with this 6 (Fees and Payment). 
    2. "Taxes". 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 Monalee's income. 
    3. "Payment". Customer shall pay all Fees within thirty (30) days after the date of the invoice therefor. Customer shall make all payments hereunder in US dollars.  
    4. "Late Payment". If Customer fails to make any payment when due then, in addition to all other remedies that may be available:
      1. Monalee may charge interest on the past due amount at the rate of one and half percent (1.5%) per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
      2. Customer shall reimburse Monalee for all costs incurred by Monalee in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and
      3. If such failure continues for thirty (30) days following written notice thereof, Monalee 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.

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    ‍7. Confidentiality.

    1. "Confidential Information". In connection with this Agreement each party (as the "Disclosing Party") may disclose or make available Confidential Information to the other party (as the "Receiving Party"). Subject to 7.2 (Exclusions), "Confidential Information" means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party's technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as "confidential". Without limiting the foregoing: all Monalee Materials are the Confidential Information of Monalee and the terms and existence of this Agreement are the Confidential Information of each of the parties.  
    2. "Exclusions". Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information's being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
    3. "Protection of Confidential Information". As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
      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 7.4 (Compelled Disclosures) 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 7.3 (Protection of Confidential Information); and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this 7 (Confidentiality);
      3. safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its most 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 use its best efforts 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 7 (Confidentiality).
      6. Notwithstanding any other provisions of this Agreement, the Receiving Party's obligations under this 7 (Confidentiality) 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.
    4. "Compelled Disclosures". If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under 7.3 (Protection of Confidential Information); and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this 7.4 (Compelled Disclosures), the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the written advice of the Receiving Party's legal counsel, the Receiving Party is legally required to disclose.

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    8. Intellectual Property Rights.

    1. "Monalee Materials". All right, title, and interest in and to the Monalee Materials, including all Intellectual Property Rights therein, are and will remain with Monalee and, with respect to Third-Party Materials, the applicable third-party providers 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 Monalee Materials except as expressly set forth in 2.1 (Access and Use) or the applicable third-party license, in each case subject to 3.1 (Use Restrictions). All other rights in and to the Monalee Materials are expressly reserved by Monalee. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to Monalee an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
    2. "Customer Data". As between Customer and Monalee, 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 8.3 (Consent to Use Customer Data).
    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 Monalee, its Subcontractors, and the Monalee Personnel to enforce this Agreement and exercise Monalee's, its Subcontractors', and the Monalee Personnel's rights and perform Monalee's, its Subcontractors', and the Monalee Personnel's obligations hereunder.
    4. "Feedback".  Customer will provide Monalee with suggestions, comments, or other feedback regarding the Services ("Feedback"). Customer agrees that all Feedback is and shall be given entirely voluntarily. To the extent permitted by law, Feedback shall be owned by Monalee, and Customer hereby assigns to Monalee all rights, title, and interest in and to such Feedback, including any intellectual property rights therein. Monalee shall have the unrestricted right to use, modify, and otherwise exploit the Feedback without any obligation or compensation to Customer.

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    9. Representations and Warranties.

    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.
    2. "Additional Customer Representations", Warranties, and Covenants. Customer represents, warrants, and covenants to Monalee 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 Monalee 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.
    3. "DISCLAIMER OF WARRANTIES". EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS SECTION 9 (REPRESENTATIONS AND WARRANTIES), ALL SERVICES AND MONALEE MATERIALS ARE PROVIDED "AS IS." MONALEE 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, MONALEE MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR MONALEE 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.

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    10. Indemnification.

    1. "Customer Indemnification". Customer shall indemnify, defend, and hold harmless Monalee and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a "Monalee Indemnitee") from and against any and all Losses incurred by such Monalee Indemnitee resulting from any Action by a third party (other than an Affiliate of a Monalee Indemnitee) that arise out of or result from, or are alleged to arise out of or result from:
      1. Customer Data, including any Processing of Customer Data by or on behalf of Monalee 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 Monalee'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 Monalee;
      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.
    2. "Indemnification Procedure". Monalee shall promptly notify Customer in writing of any Action for which Monalee believes it is entitled to be indemnified pursuant to Section 10.1 (Customer Indemnification). Monalee shall reasonably cooperate with Customer at Monalee’s sole cost and expense. Customer shall promptly assume control of the defense and shall employ counsel reasonably acceptable to Monalee to handle and defend the same, at Customer’s sole cost and expense. Monalee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. Customer shall not settle any Action without Monalee’s prior written consent, which shall not be unreasonably withheld or delayed. Monalee’s failure to perform any obligations under this Section 10.2 (Indemnification Procedure) will not relieve Customer of its obligations under this 10 (Indemnification), except to the extent that Customer can demonstrate that it has been prejudiced as a result of such failure.

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    11. Limitations of Liability.

    1. "Exclusion of Damages". IN NO EVENT WILL MONALEE OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS 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.
    2. "Cap on Monetary Liability". IN NO EVENT WILL THE AGGREGATE LIABILITY OF MONALEE AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS 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 MONALEE UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

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    12. Term and Termination.

    1. "Initial Term". The initial term of this Agreement commences as of the Effective Date and, unless terminated earlier pursuant to any of the Agreement's express provisions, will continue in effect until one (1) year from expiration of the Effective Date ("Initial Term").
    2. "Renewal Term". Upon expiration of the Initial Term (or any then-current Renewal Term), this Agreement will automatically renew for an additional one (1) year period unless earlier terminated pursuant to this Agreement's express provisions or either party gives the other party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a "Renewal Term" and, collectively with the Initial Term, the "Term").
    3. "Termination". In addition to any other express termination right set forth elsewhere in this Agreement:
      1. Monalee 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 Monalee's delivery of written notice thereof; or (ii) breaches any of its obligations under 3.1 (Use Restrictions), 5.3 (Access and Security), or 9 (Confidentiality).
      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 written notice of such breach.
      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 its debts as they become due; (ii) files or has filed against it a petition for bankruptcy or becomes subject to any proceeding under 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 to take charge of or sell any material portion of its property or business.
    4. "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. Monalee shall immediately cease all use of any Customer Data or Customer's Confidential Information and (i) return or, at Customer's request, destroy all materials containing such information; and (ii) permanently erase all such data from systems Monalee controls, except for Resultant Data;
      3. Customer shall immediately cease all use of any Services or Monalee Materials and (i) return or, at Monalee's request, destroy all materials containing such information; (ii) permanently erase all such data from systems Customer controls; and (iii) certify compliance in writing;
      4. Notwithstanding anything to the contrary, the Receiving Party may retain Confidential Information as required by Law; Monalee may retain Customer Data in backups until deleted in the ordinary course; all retained materials remain subject to confidentiality obligations;
      5. Monalee may disable all Customer and Authorized User access to the Monalee Materials;
      6. If Monalee terminates under 12.3(a) or 12.3(b), all Fees that would have become payable through the end of the Term become immediately due and payable.
    5. "Surviving Terms". The following sections, and any other provisions that by their nature should survive termination or expiration, will survive: 6 (Fees and Payments), 7 (Confidentiality), 8 (Intellectual Property Rights), 9 (Representations and Warranties), 10 (Indemnification), 11 (Limitations of Liability), 12.4 (Effect of Termination or Expiration), 12.5 (Surviving Terms), 13 (Miscellaneous).

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    13. Miscellaneous.

    1. "Further Assurances". On a party's reasonable request, the other party shall, at the requesting party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
    2. "Relationship of the Parties". The relationship between the parties is that of independent contractors. Nothing in this Agreement shall be construed as creating any agency, partnership, joint venture, employment, or fiduciary relationship, and neither party has authority to bind the other.
    3. "Public Announcements". Neither party shall issue or release any announcement, press release, or marketing materials relating to this Agreement, or use the other party's marks, without prior written consent, except that Monalee may list Customer as a current or former customer in promotional materials.
    4. "Notices". All notices (“Notices”) must be in writing and delivered to the addresses specified in this Agreement (or updated addresses provided in accordance with this section). Notices must be delivered by personal delivery, overnight courier, facsimile with confirmation, or certified/registered mail. A Notice is effective only upon receipt and compliance with this section.
    5. "Interpretation". For purposes of this Agreement: (a) “including” means “including without limitation”; (b) “or” is not exclusive; (c) “herein,” “hereof,” etc. refer to this Agreement as a whole; (d) singular includes plural and vice‑versa; (e) gender terms include all genders. References to sections, exhibits, and schedules refer to those attached to this Agreement; references to documents include amendments; references to statutes include successors and regulations. The Agreement is construed without presumption against the drafter. Exhibits and schedules are integral parts of this Agreement.
    6. "Headings". Headings are for reference only and do not affect interpretation.
    7. "Entire Agreement". This Agreement constitutes the entire agreement between the parties regarding its subject matter and supersedes all prior and contemporaneous agreements, representations, and warranties, written or oral.
    8. "Assignment". Neither party may assign or delegate its rights or obligations without prior written consent, except that either party may assign to an acquirer of substantially all its business or assets with 30 days’ notice. Unauthorized assignments are void. This Agreement binds and benefits permitted successors and assigns.
    9. "Force Majeure".
      1. No Breach or Default. Neither party is liable for failure or delay (except payment obligations) caused by circumstances beyond reasonable control (“Force Majeure Event”), including acts of God, natural disasters, war, terrorism, civil unrest, government actions, embargoes, emergencies, labor disturbances, or shortages of power or transportation. Either party may terminate this Agreement if the Force Majeure Event continues for 30 days or more.
      2. Affected Party Obligations. The affected party must promptly notify the other party of the expected duration and use commercially reasonable efforts to end the delay and minimize its effects.
    10. "No Third‑Party Beneficiaries". This Agreement benefits only the parties and their permitted successors and assigns. No third party has any rights or remedies under this Agreement.
    11. "Amendment and Modification; Waiver". Amendments or modifications must be in writing and signed by both parties. Waivers must be explicit and in writing. Failure to exercise rights does not constitute a waiver.
    12. "Severability". If any provision is invalid or unenforceable, the remainder remains effective. The parties shall negotiate in good faith to replace invalid provisions with enforceable ones that reflect original intent.
    13. "Governing Law; Submission to Jurisdiction". This Agreement is governed by Delaware law. Any legal action must be brought exclusively in federal or state courts in Delaware, and each party submits to their jurisdiction. Service by mail is effective.
    14. "Waiver of Jury Trial". Each party irrevocably waives the right to a jury trial in any action arising out of this Agreement.
    15. "Attorneys’ Fees". The prevailing party in any action arising out of this Agreement is entitled to recover reasonable attorneys’ fees and court costs.
    16. "Counterparts". This Agreement may be executed in counterparts, each an original. Electronic or emailed signatures have the same legal effect as originals.

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    ‍EXHIBIT B - PRICING

    ‍1. Term 

    1. Access Period. Customer’s use of the Services will continue for a period of twelve (12) or twenty‑four (24) months through expiration of the Initial Term. Upon expiration of the Initial Term, Customer’s use of the Services will automatically renew subject to Section 12.2 (Renewal Term) of the Agreement.
    2. Subscription Fee Adjustments. To account for inflation, increased infrastructure costs, and ongoing improvements to the Platform, subscription fees increase on average by ten percent (10%) annually. Customers may avoid annual adjustments by entering into a multi‑year agreement with fixed pricing for the selected term.

    ‍

    2. Fees

    1. Pricing.  Customers of the Services will be subject to payment of the Fees set forth below:  All pricing includes a 3% discount with auto-pay. If you elect manual pay, pricing is 3% higher than our standard pricing.

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    3. Cancellation

    1. The Agreement may not be terminated for convenience during the Initial Term. Customer may elect not to renew the Agreement by providing at least thirty (30) days' written notice prior to the expiration of the then-current term.
    2. If Customer terminates the Agreement prior to the expiration of the Initial Term for any reason other than Provider's uncured material breach, all remaining subscription fees for the balance of the Initial Term shall become immediately due and payable. Provider shall have thirty (30) days following written notice of any alleged material breach to cure such breach before Customer may exercise any termination right under this section.
    3. If Customer terminates the Agreement early, Provider reserves the right to invoice Customer for the value of any promotional credits, waived onboarding fees, free service periods, or other incentives provided in connection with the Agreement, as such incentives are contingent upon Customer completing the Initial Term.
    4. Cancellation notices must be submitted in writing to support@artemispower.com. Cancellations received after the renewal date take effect at the end of the following term.

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    Notwithstanding anything to the contrary in this Agreement, Provider may suspend, deactivate, or otherwise restrict Customer's access to the Artemis platform, in whole or in part, at any time in the event of (i) non-payment of any amounts due, (ii) Customer's breach of the Agreement, or (iii) at any time following delivery of a cancellation or non-renewal notice. Except as provided in the preceding sentence, access to the platform will remain active through the end of the paid billing period. Any suspension or deactivation under this section does not relieve Customer of its obligation to pay all fees due for the remainder of the then-current term.

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