ROII RiskOn International Inc (CE)

1.1  Provision of Services. MeetKai agrees to use commercially reasonable efforts to provide the hosted platform (“Platform”) for use of the Website, as well as the End Users (as hereinafter defined) of the Website, and related services set forth in one or more statements of work (each an “SOW”) agreed to by the parties in writing (collectively, “Services”). The Services will be provided in accordance with the specifications set forth in the SOW or otherwise agree to by the parties in writing (“Specifications”). Exhibit A attached hereto is the first SOW. In the event a SOW conflicts with this Agreement, then the terms of such SOW shall control. The “Website” means the marketing website located at www.askroi.com and the typescript full stack application known internally as “AskROI” that enables Customer to sell software as a service. To the extent the Website is hosted and maintained by MeetKai, MeetKai will use diligent efforts to ensure it is available and function in all material respects on a 24/7 basis (subject to reasonable downtime for maintenance as agreed upon in advance with Customer, as well as matters/causes beyond MeetKai’s reasonable control.

1.2  Support. The Services will be provided in accordance the service levels and support terms, to be set forth in the SOW.

1.3  Restrictions. Customer shall not (and shall not allow any third party to): (a) use the Services to help develop any competing technology, (b) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code to any of any part of the Service (provided that, the foregoing restriction on reverse engineering will not apply to the extent prohibited by applicable law - and then only upon advance notice to MeetKai, in which case MeetKai may terminate this Agreement on written notice), or (c) modify or create derivatives of the Services.

Customer will ensure that neither Customer nor any Customer Applications upload to, or transmit through, the Platform any virus, malware, or infringing or illegal content. MeetKai acknowledges that this prohibition applies on to Customer and its conduct and that Customer is not responsible for the actions of End Users (as hereinafter defined).

Customer will use the Services in, compliance with all applicable laws, regulations and rights, including but not limited to those related to privacy, intellectual property, consumer and child protection, SPAM, text messaging, obscenity or defamation (including the Telephone Consumer Protection Act of 1991 and any amendments or supplements and the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 and any amendments or supplements thereto, the Health Insurance Portability and Accountability Act of 1996, as amended by the Health Information Technology for Economic and Clinical Health Act and any rules or regulations promulgated thereunder, the California Consumer Privacy Act and the General Data Protection Regulation and in each case any rules or regulations promulgated thereunder) and other applicable industry standards (including the Payment Card Industry Data Security Standard).

Customer may, through the Services or use of the Services, send a variety of messages, communications, and other information to platform end users (“End Users”) who have elected to receive communications or who have provided their contact information. MeetKai is not involved in, and shall bear no responsibility for, any communications except for providing the Services that facilitate the creation and delivery of such communications. Without limiting the foregoing, Customer is wholly responsible for such communications, including without limitation, for (i) the content thereof, (ii) obtaining End User consents to receive such messages and (iii) honoring any End User privacy choices and terms with respect to such communications.

For clarity, Customer is fully responsible for ensuring that the End Users agree to a customer privacy policy that allows for such information to be used hereunder.

MeetKai may remove any message or other content Customer posts to the Platform as MeetKai is required to comply with any laws, regulations, or court order.

1.4  Customer Content. Customer may provide MeetKai with content (such as text, ideas, and creative assets) for inclusion in the Platform (“Customer Content”). Customer is fully responsible for ensuring that it has all rights, consent, and authority to provide the Customer Content for the purposes for which it is provided hereunder.

1.5  Customer’s Obligations. Customer acknowledges that Customer’s timely provision of (and MeetKai’s access to) Customer Content, assistance, cooperation, and complete and accurate information and data from Customer’s officers, agents and employees (“Cooperation”) may be essential to the performance of the Services, and that MeetKai shall not be liable for any deficiency or delay in performing the Services if such deficiency or delay results from Customer’s failure to provide full Cooperation as requested in writing (for clarity, including email) by MeetKai. Cooperation includes, but is not limited to, designating a project manager to interface with MeetKai during the course of the Services and allocating and engaging additional resources as may be reasonably required by MeetKai to assist it in performing the Services.

1.6  Customer Applications. Customer may integrate its own systems and applications with the Platform to the extent agreed to by MeetKai in writing (email is sufficient) (“Customer Applications”). Customer Applications may include applications provided by Customer’s own third-party vendors. Customer shall only be liable and responsible for any issues caused by Customer Applications provided by Customer’s own third-party vendors (including, without limitation, any damage to the Platform or injury to any End Users).

2.1   “Customer Data” means all data provided by Customer or Customer Applications to MeetKai. As between the parties, Customer shall retain all right, title and interest in the Customer Data. Subject to the terms of this Agreement, Customer hereby grants to MeetKai a non-exclusive, worldwide, non-transferrable (except with an assignment of this Agreement as permitted herein), non-assignable (except with an assignment of this Agreement as permitted herein), royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Customer Data to the extent necessary to provide the Services to Customer and End Users. Customer represents and warrants that (i) it has all rights and authorization to provide the Customer Data, (ii) the provision of Customer Data, and MeetKai’s use of the data as authorized hereunder, is allow by Customer’s privacy policy, and (iii) Customer’s provision, use and maintenance of Customer Data complies with all laws, regulations and third-party rights.

2.2  End User Data. Each party may use End User data for the purposes agreed to between it and the End User in its terms and conditions and privacy policy, provided, however, that MeetKai shall not sell or transfer any End User data that contains Personally Identifiable Information to any competitor(s) of Customer. Notwithstanding anything to the foregoing, MeetKai shall not be entitled to use, and shall permanently delete, any End User data once the End User is no longer a customer of the Customer.

2.3   For purposes of this Agreement, “Personally Identifiable Information” means any information that alone or in combination with other information that constitutes End User data, can be used to specifically identify any natural person, proprietorship, partnership, corporation, limited liability corporation, bank, organization, firm, business, joint venture, association, trust or other entity and any government agency, body or authority. For purposes of clarity, de-identified aggregate data does not constitute Personally Identifiable Information.

2.4  Security. MeetKai shall implement Technical and Organizational Security Measures that are no less rigorous than information security generally accepted practices to protect the integrity, availability, and confidentiality of Customer Data, End User Data and other non-public information and prevent the unauthorized access, acquisition, disclosure, destruction, alteration, accidental loss, misuse or damage of the Customer Data. For purposes of this Agreement, “Technical and Organizational Security Measures” means any activities required under the information security requirements contained in this Agreement to access, manage, transfer, process, store, retain, and destroy information or data; to disclose and notify affected parties required under the Agreement and under applicable information privacy and data protection laws; and to safeguard information or data to ensure availability, integrity, confidentiality, and privacy, or notify individuals of any failure to safeguard such information or data. Measures include but are not limited to those required or interpreted to be required under EU General Data Protection Regulation (GDPR), EU Payment Service Directive, the California Consumer Privacy Act, NYS DFS 23 NYCRR 500, the United States Gramm-Leach Bliley Act (GLBA), the EU /Switzerland data privacy requirements, and any other international and U.S. laws, official legal interpretations, or case precedents pertaining to information or data under the Agreement, but MeetKai makes no warranties it mees the requirements of HIPAA.

2.5  Aggregate Use Rights. MeetKai will have an irrevocable, perpetual right to retain and internally use any Customer Data in an aggregated and deidentified form to internally improve its products and services (such as training algorithms). For purposes of clarity, the Customer Data in this Section 2.5 does not apply to any End User data, which shall be governed by Section 2.2

3.1  Fees. Customer shall pay to MeetKai the fees set forth in an SOW in accordance with the terms and conditions set forth therein.

3.2  Payment Terms. Unless otherwise specified in an SOW, payments are payable in advance. All amounts payable by Customer hereunder shall be due and payable within thirty (30) days of the date of such invoice. Notices for a failure to pay may be provided via email. Late fees will be subject to a finance charge of one and one-half percent (1.5%) per month (or the maximum rate permitted by applicable law, whichever is less). In addition, Customer will reimburse MeetKai for all costs of collection (including reasonable attorneys’ fees). If Customer disputes an invoice in good faith, it may withhold the disputed portion but shall pay the undisputed portion. No interest shall be incurred on any unpaid or adjusted invoice unless it is determined that MeetKai is due all or a portion of the disputed amount.

4.1  Term. Unless earlier terminated as set forth below, this Agreement shall commence on the Effective Date and continue in effect for the term set forth in an applicable SOW.

4.2  Termination. Either party may terminate this Agreement of any SOW if the other party (i) materially breaches this Agreement or the SOW and fails to cure such breach within thirty (30) days from receipt of written notice thereof (provided that the notice provides sufficient details regarding the breach and expressly states the intent to terminate if not cured), (ii) makes a general assignment for the benefit of its creditors, (iii) commences under the laws of any jurisdiction any proceeding for relief under the United States Bankruptcy Code or successor legislation, or corresponding legislation in applicable foreign or state jurisdictions, involving its insolvency, reorganization, adjustment of debt, dissolution, liquidation or other similar proceedings for the release of financially distressed debtors, (iv) has an application for a bankruptcy order entered against such party and such application is not withdrawn within 45 days, or (v) applies for or acquiesces in the appointment of any receiver, trustee or similar officer to liquidate or conserve its business or any substantial part of its assets. If there are no SOWs in effect, either party may terminate this Agreement with thirty (30) days prior written notice. In addition, if Customer fails to pay amounts owed hereunder after two (2) written late notices, provided not less than 10 business days apart, MeetKai may suspend the Services (without limiting its termination rights). MeetKai shall use commercially reasonable efforts to lift the suspension as soon as possible after the late payment being made. MeetKai may require a reasonable deposit (to be determined by MeetKai in its reasonable discretion) to re-institute the Services (payable within 10 days of the Services being reinstated).

4.3  Effect of Termination. If termination is for MeetKai’s uncured breach or for any other reason other than Customer’s uncured breach, Customer shall pay MeetKai for all Services performed pursuant to this Agreement and expenses incurred up through the termination date for any termination pursuant to this Section 4. If termination is for Customer’s uncured breach or Customer attempts to terminate for convenience, all fees that but for termination would otherwise have been due for the remaining term of all SOWs (i.e. as if no termination had occurred) will be non-cancellable and non-refundable (and, if not paid, will become due). The provisions of Sections 1.3, 2.1, 3 (with respect to outstanding payment obligations), 4.3 and 5-10 shall survive any expiration or other termination of this Agreement.

5.1  IP. The parties will jointly own all new software code created by MeetKai that is incorporated into the Website, which will be governed by a separate agreement to be entered into between Customer and MeetKai.

5.2  Except as set out in Section 5.1, MeetKai owns all aspects of the Platform and other aspects of the Services (including, without limitation, all modifications, derivatives, and improvements thereto). For clarity, MeetKai owns all aspects of its AI, VIP1, and VIP2 software. In addition, MeetKai owns all materials and assets it (itself or through use of its third-party contractors) creates for the Platform (including all artwork, designs, and other creative assets) (but MeetKai will not own any Customer trademarks to the extent incorporated into the assets) (“Creative Assets”). Customer retains ownership of all Customer Content; provided that if any Customer Content is incorporated into Creative Assets, which MeetKai shall not incorporate into Creative Assets without the prior written consent of Customer, then Customer shall and hereby does assign its ownership right, title and interest in and to such assets to MeetKai (other than Customer’s trademarks) (the “Collaborative Creative Assets”), provided further, that MeetKai hereby grants to Customer a non-exclusive, worldwide, non-transferrable (except with an assignment of this Agreement as permitted herein), non-assignable (except with an assignment of this Agreement as permitted herein), royalty-free right to use, copy, store, transmit, modify, create derivative works of and display the Collaborative Creative Assets.

5.3  Feedback. Notwithstanding anything else, Customer grants MeetKai a perpetual, irrevocable, royalty free, paid-up, sub-licensable, right and license to use, display, reproduce, distribute and otherwise exploit Feedback for any purposes. MeetKai agrees that (i) Customer does not have to provide Feedback, and (ii) all Feedback is provided “AS IS”. “Feedback” means all suggestions for improvement or enhancement, recommendations, comments, opinions or other feedback provided by Customer (whether in oral, electronic or written form) to MeetKai for the Platform.

6.1  Mutual Warranties. Each party represents and warrants that (i) it is a corporate entity in good standing in its jurisdiction of incorporation or formation, (ii) it has obtained all necessary approvals, consents and authorizations to enter into, and to perform its obligations under, this Agreement and each SOW, (iii) it has all right, power, and authority to execute this Agreement and perform its obligations hereunder, (iv) it is not under any current obligation or restriction, nor will it knowingly assume any such obligation or restriction, that does or could interfere with the performance of its obligations under this Agreement or an SOW, and (v) the execution, delivery, and performance of this Agreement or any SOW does not violate any provision of any bylaw, charter, regulation, or any other governing authority of the party, or any other agreement to which it is a party, and its obligations under this Agreement, including each SOW, are valid and binding obligations of that party.

6.2  MeetKai Warranties. MeetKai represents and warrants that (i) the Services, as provided, will not infringe the intellectual property rights of any third-party (but this does not apply to Customer Content therein), (ii) the Services will be provided in a professional and workmanlike manner in accordance with generally accepted industry standards, (iii) the Services will materially conform to the Specifications, and the relevant SOWs, (iv) it and its personnel possess the necessary skills and experience to perform MeetKai’s obligations under this Agreement and each SOW, (v) it will comply with all applicable requirements, laws, rules and regulations in connection with the delivery of the Services and the exercise of its rights and the performance of its other obligations, and (vi) it is the owner of the Platform and possesses all necessary rights to grant Customer the rights and licenses granted under this Agreement and any SOW. In the event of any notice from Customer of breach of Section 6.2(iii), MeetKai will promptly begin corrective actions and keep Customer appraised of such activities on no less than a seventy-two (72) hour cadence, or in accordance with the applicable SOW.

6.3  Customer Warranties. Customer represents and warrants that the Customer Content, and Customer’s products, services, content, or information published on, transmitted through, or made available through, the Platform (collectively, “Customer Communications/Offerings”), will (i) not infringe, violate, or conflict with the rights of any third-party (including intellectual property rights and privacy rights), and (ii) Customer will ensure the Customer Communications/Offerings are accurate and up-to-date at all times. For clarity, Customer Communications/Offerings includes any messages Customer or its partners or providers sends to any End Users.

6.4  Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.1 ABOVE, MEETKAI MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO ANY OTHER MATTER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, THE CONDITION OF THE PLATFORM OR SERVICES, AND MEETKAI HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR NEED, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

EXCEPT FOR A PARTY’S INDEMNITY OBLIGATIONS, OR A PARTY’S BREACH OF SECTION 8, NEITHER PARTY WILL BE LIABLE IN CONNECTION WITH THIS AGREEMENT FOR ANY (I) INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF FORESEEEABLE, OR (II) AMOUNTS IN THE AGGREGATE IN EXCESS OF THE FEES PAID BY CUSTOMER TO MEETKAI DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD. IN ADDITION, MEETKAI WILL NOT BE LIABLE FOR ANY COST OF PROCUREMENT OF SUBSTITUTE TECHNOLOGY OR SERVICES. THE LIMITATIONS SET FORTH IN THIS SECTION 7 SHALL NOT APPLY IN THE CASE OF LOSS, COSTS OR DAMAGE RESULTING FROM GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT, THE PARTIES’ INDEMNITY OBLIGATIONS RELATING TO INTELLECTUAL PROPERTY INFRINGEMENT OR CONFIDENTIAL INFORMATION, PERSONAL INJURY OR DEATH, OR FRAUD OR OTHER CRIMINAL ACTIVITY.

Each party agrees that all business and technical information it obtains (“Receiving Party”) from the disclosing party (“Disclosing Party”) constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. The terms of this Agreement (including all fees and pricing information) will be MeetKai’s Confidential Information, provided, however, that Customer shall be permitted to disclose all fees and pricing information as required by law, including any disclosures required as a public reporting company. Except as expressly authorized herein, the Receiving Party will, using reasonable measures, hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i)

at the time of disclosure, is, or thereafter becomes, known and available to the public other than as a result of a disclosure by the Receiving Party or any of its Representatives in violation of this Agreement; (ii) is already in the possession of the Receiving Party or any of its Representatives or becomes available to the Receiving Party or any of its Representatives on a non-confidential basis from a source other than the Disclosing Party or its Representatives (provided, however, that the Receiving Party does not know that such source is bound by a contractual, legal or fiduciary obligation of confidentiality to the Disclosing Party with respect to such information); or (iii) has been independently developed by the Receiving Party or its Representatives without violation of this Agreement and without any reference to or use of any of the Confidential Information. For purposes of this Agreement, “Representatives” shall mean the affiliates and their respective directors, managers, partners, officers, employees, legal counsel, accountants, financial advisors and potential financing sources that have a need to know the Confidential Information. Notwithstanding anything to the forgoing, if in the opinion of counsel to the Receiving Party, disclosure of Confidential Information is required by applicable law, a regulatory authority, court, or other tribunal or applicable stock exchange or self-regulatory organization, the Receiving Party will, to the extent legally permitted, promptly notify the Disclosing Party and use its best efforts to limit the disclosure. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief (without the posting of a bond or similar instrument) in addition to whatever other remedies it might have at law. 

9.1  MeetKai Indemnity. MeetKai will indemnify and hold Customer, its affiliates, subsidiaries, successors, and assigns, and their respective officers, directors, employees, stockholders and agents harmless from and against all third party claims (and all resulting, out-of-pocket: liabilities, damages, costs, losses, and expenses, including reasonable legal and other professional fees) (“Claims and Resulting Losses”) incurred resulting from: (i) any breach by MeetKai, including its employees, agents and subcontractors of its obligations under this Agreement or any SOW; (ii) other claims by third parties, including claims for death, personal injury, or damage to physical property, to the extent caused directly or indirectly by the Platform; (iii) MeetKai having made inaccurate or unauthorized warranties, representations or statements, or otherwise acting beyond the scope of its authority as set out in this Agreement or any SOW; (iv) MeetKai’s negligence or willful misconduct; (v) MeetKai’s violation of any laws or regulations; and (vi) a claim that the Services, the Platform, or any MeetKai trademarks or other intellectual property infringe a third party’s intellectual property rights. The foregoing excludes claims arising from Customer Content or Customer Communications/Offerings.

9.2  Customer Indemnity. Customer will indemnify and hold MeetKai its affiliates, subsidiaries, successors, and assigns, and their respective officers, directors, employees, stockholders and agents harmless from and against all Claims and Resulting Losses arising from or in connection with: (i) Customer’s use of the Services; (ii) any Customer Content, Customer Data, Customer Communications/Offerings, or Customer Applications; (iii) Customer’s interactions with, or disputes with, any End Users, relating to Customer Communications/Offerings; (iv) Customer’s negligence or willful misconduct; and (v) Customer’s violation of any laws or regulations, or third party rights (including, without limitation, infringement by the Customer Content of any third party – and including Customer’s violation of any privacy rights).

9.3  Procedures. The indemnitee party will: (a) promptly notify the indemnifying party of all claims and threats thereof; (b) give the indemnifying party sole control of all defense and settlement activities; and (c) provide indemnifying party with all reasonably requested assistance with respect thereto, provided, however, that the indemnifying party will not agree to any settlement or consent judgment that imposes any obligations on the indemnitee without indemnitee’s express prior consent.

10.1   Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assignees. Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement to (i) a successor to all or substantially all of a party’s business or assets, or (ii) its parent company or any direct or indirect subsidiary of such party’s parent company, provided that, the acquirer is bound by all the terms and conditions of this Agreement (including SOWs) and has the financial and engineering resources and capabilities to continue to fully perform this Agreement (including SOWs) for the remainder of the term. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 10.1 will be null and void. MeetKai covenants and agrees that it will not, through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Agreement (including SOWs).

10.2   Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, pandemic, riot, natural disaster, failure or diminishment of telecommunications, or refusal of a license by a government agency. If a force majeure event prevents a party’s performance hereunder for more than sixty (60) days, the other party may terminate the affected SOW on written notice.

10.3   Governing Law; Jurisdiction. This Agreement shall be governed by the laws of the State of Delaware and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement shall be finally settled in accordance with the Rules of the Judicial Arbitration and Mediation Service (“JAMS”) in accordance with such Rules. To the extent the JAMS streamlined rules are available – they shall apply. The arbitration shall take place in Los Angeles, California, in the English language and the arbitral decision may be enforced in any court. To the extent a claim cannot legally be arbitrated (as determined by an arbitrator), the jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in Los Angeles, California and both parties hereby submit to the personal jurisdiction of such courts.

10.4   Notice. Except as otherwise set forth in this Agreement, any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth below, or at such other address as may be given by either party to the other and shall be deemed to have been received by the addressee: (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch; (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the fourth business day after such notice is deposited in the mail; and (iv) if sent by email, when transmitted if transmitted to the email address specified by the recipient. In addition, any legal notices to (i) MeetKai (such as for breach of this Agreement) must be delivered to the following email address: ______________ (“Legal” – must be included in the subject heading) and (ii) Customer (such as for breach of this Agreement) must be delivered to the following email address: ______________, but, notwithstanding earlier receipt via email, legal notices will be deemed received when the physical notice is received as set forth in preceding sentence. Contact addresses may be updated in notice.

10.5   Publicity. Neither party shall use the name of the other party in any news release, public announcement, advertisement, or other form of publicity without securing the prior written consent of the other. Notwithstanding the foregoing, Customer may, in its sole and absolute discretion, make any public disclosure as reasonably determined by Customer’s General Counsel in order for Customer (or its affiliates) to comply with reporting obligations under United States securities laws.

10.6   Relationship. The parties are independent contractors, and nothing in the Agreement will be construed as to be inconsistent with that relationship. Under no circumstances will any of a party’s personnel be considered employees or agents of the other party. Nothing in this Agreement grants either party the right or authority to make commitments of any kind for the other, implied or otherwise, without the other party's prior written agreement. Neither this Agreement nor any SOW constitutes or creates, in any manner, a joint venture, agency, partnership, or formal business organization of any kind.

10.7   Entire Agreement. This Agreement, together with any SOWs entered into pursuant hereto, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. This Agreement (and any SOW) may only be amended or waived in a writing executed by both parties. If any provision of this Agreement shall be adjudged by an any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect. This Agreement may be executed electronically and in counterparts (such as via DocuSign).

1.1  Scope of Services.  MeetKai will perform the services and deliver the required deliverables as agreed to by the parties from time to time (such services, the “Services” and such deliverables, the “Deliverables”) as set forth in one or more SOW(s) (as defined below). Without limiting the foregoing, MeetKai will perform the Services and deliver the Deliverables in accordance with the schedule set forth in any statement of work that (i) references this Agreement, (ii) is signed by authorized representatives of both parties and (iii) sets forth, at a minimum, the services to be performed by MeetKai and the fees for such services (“Statement of Work” or “SOW”). In the event of a conflict between any term or condition of this Agreement and any term or condition of a Statement of Work, the term or condition of the applicable Statement of Work will govern if a Statement of Work expressly states that it is the intention of the parties to amend this Agreement.

1.2  Schedule; Schedule Defaults.  If at any time, it appears that MeetKai will not be able to complete the Services or any task on time. In the event MeetKai fails to achieve any of the specified delivery dates in a Statement of Work, such failure shall constitute a material breach of this Agreement. Notwithstanding the foregoing, MeetKai shall not be liable for delays caused by Customer or its agents.

1.3  Changes.

Customer may at any time request changes to the Services (or to the specifications for time or place of delivery) set forth in a Statement of Work that were not previously contemplated by the parties. If so, Customer will submit a written change order to MeetKai describing such changes in appropriate detail (a “Change Order Request”). MeetKai shall respond within 10 business days of its receipt of Customer’s Change Order Request.

If a Change Order Request does not require MeetKai to incur any additional material costs or expenses or cause an increase or decrease in the time or engineering resources required for performance of the Services, MeetKai will accept such Change Order Request. In the event a Change Order Request does require Meetkai to incur additional material costs or expenses or cause an increase or decrease in the time required for performance of the Services, then MeetKai will provide Customer with a good faith non-binding written assessment of such costs and expenses and the time required to perform the modifications required by the Change Order Request (a, “Change Order Request Response”). A Change Order Request, and Change Order Request Response, will only be effective once agreed to by the parties in a formal, executed Change Order.

2.1  Project Managers. Each party hereto will appoint and maintain at all times during the term of this Agreement, by notice to the other party, a project manager (the “Project Manager”) who will have authority to grant any approvals called for under this Agreement, to consult with such other party and to arrange access to the personnel and resources of the appointing party to the extent necessary or appropriate for purposes of this Agreement, and generally to communicate on behalf of the appointing party with respect to this Agreement and the subject matter hereof. The identity of each party’s initial Project Manager will be set forth on the relevant Statement of Work.

2.2  Personnel. The personnel assigned by MeetKai to perform the Services will be qualified to perform the assigned duties and available to perform the tasks assigned them in a timely and responsive manner. Customer may request any MeetKai personnel be replaced for good cause. Meetkai will consider such requests in good faith.

3.1  Fees.  Customer shall pay to MeetKai the fees set forth in an SOW in accordance with the terms and conditions set forth therein.

3.2  Payment Terms.  MeetKai will invoice Customer upon any amounts becoming due and payable pursuant to the applicable Statement of Work and Customer will pay all undisputed invoices within thirty (30) days of receipt. Notices for a failure to pay undisputed amounts may be provided via email. Late fees will be subject to a finance charge of one and one-half percent (1.5%) per month (or the maximum rate permitted by applicable law, whichever is less). In addition, Customer will reimburse MeetKai for all costs of collection (including reasonable attorneys’ fees). If Customer disputes an invoice in good faith, it may withhold the disputed portion but shall pay the undisputed portion. No interest shall be incurred on any unpaid or adjusted invoice unless it is determined that MeetKai is due all or a portion of the disputed amount.

4.1  Term. This Agreement shall commence on the Effective Date and continue in effect until terminated in accordance with Section 4.2 or Section 10.2.

4.2  Termination. This Agreement cannot be terminated for convenience except as set out below in this Section 4.2. Statements of Work cannot be terminated for convenience. Either party may terminate this Agreement of any SOW if the other party (i) materially breaches this Agreement or the SOW and fails to cure such breach within thirty (30) days from receipt of written notice thereof (provided that the notice provides sufficient details regarding the breach and expressly states the intent to terminate if not cured), (ii) makes a general assignment for the benefit of its creditors, (iii) commences under the laws of any jurisdiction any proceeding for relief under the United States Bankruptcy Code or successor legislation, or corresponding legislation in applicable foreign or state jurisdictions, involving its insolvency, reorganization, adjustment of debt, dissolution, liquidation or other similar proceedings for the release of financially distressed debtors, (iv) has an application for a bankruptcy order entered against such party and such application is not withdrawn within 45 days, or (v) applies for or acquiesces in the appointment of any receiver, trustee or similar officer to liquidate or conserve its business or any substantial part of its assets. If there are no SOWs in effect, either party may terminate this Agreement with fourteen (14) days prior written notice. In addition, if Customer fails to pay amounts owed hereunder after two (2) written late notices, provided not less than 10 business days apart, MeetKai may suspend the Services (without limiting its termination rights). MeetKai shall use commercially reasonable efforts to lift the suspension as soon as possible after the late payment being made.

4.3  Effect of Termination. Upon termination of any Statement of Work, MeetKai will immediately deliver to Customer the Front End Stack (as defined below) (including any works-in-process) developed under such Statement of Work. Within sixty (60) days of termination of any Statement of Work, MeetKai will submit to Customer an itemized invoice for Services for which amounts are properly payable by Customer in accordance with this Agreement and the applicable Statement of Work. If Customer has pre-paid amounts in excess of those owed, MeetKai will refund such excess amount. If Customer owes an amount for properly delivered Services, upon payment of such amount so invoiced, Customer will thereafter have no further liability or obligation to MeetKai whatsoever for any further fees or expenses arising under such Statement of Work.

4.4  Survival. Notwithstanding any expiration or termination of any Statement of Work or this Agreement, the provisions of Sections 5 through 10, inclusive, will survive.

5.1  Acceptance. MeetKai’s Project Manager will provide Customer’s Project Manager with written notice via electronic mail alerting Customer of each Deliverable that is ready for acceptance testing. Customer’s Project Manager will have twenty (20) days from the date of MeetKai’s Project Manager’s delivery of such written notice (“Acceptance Period”) to review the Services and the Deliverables for acceptability as to form and content and compliance with any specifications set forth in the applicable Statement of Work. Customer will conduct acceptance testing to determine whether the Deliverables meet the requirements and/or perform the functions required under the applicable Statement of Work. MeetKai will provide any procedures, materials and technical assistance reasonably necessary and take all actions required to enable Customer to review and test the Deliverables. MeetKai will, without additional compensation, work diligently to correct any defects and/or deficiencies in the Deliverables that may be discovered during acceptance testing and to resubmit the Deliverable within a reasonable time for continued acceptance testing. Failure to notify MeetKai of a proper acceptance or rejection in writing (email is sufficient) within the Acceptance Period constitutes acceptance. The process above will be repeated until acceptance is achieve.

5.2  Definitions:

“Customer Property” means, collectively, any and all Technology provided or made available to MeetKai by Customer and Intellectual Property Rights in or related to such Technology.

“Intellectual Property Rights” means all rights in, to and under patents, trade secret rights, copyrights, trademarks, service marks, trade dress, and similar rights of any type under the laws of any governmental authority in all countries and territories worldwide and under any international conventions, including without limitation, all applications and registrations relating to the foregoing.

“Technology” means any and all technology and/or intellectual property, including without limitation ideas, inventions, discoveries, developments, designs, methods, modifications, improvements, processes, know-how, show-how, techniques, algorithms, specifications, data, databases, computer software and code, documentation, annotations, comments, data, data structures, databases, data collections, instructions, mask works, formulae, supplier and customer lists, trade secrets, plans, drawings, graphics or images, text, audio or visual works, materials that document design or design processes, or that document research or testing, schematics, diagrams, product specifications and other works of authorship.

“Third Party Property” means any and all Technology that is owned by a third party.

5.3  Rights in Customer Property. Customer Property will be owned exclusively by Customer, except for the limited rights to the Customer Property granted to MeetKai in the following sentence. Customer hereby grants to MeetKai a limited, nonexclusive, non-assignable (except with an assignment of this Agreement as authorized herein), non-transferrable (except with an assignment of this Agreement as authorized herein) right and license to copy, create derivative works of, modify and otherwise use any Customer Property provided to MeetKai hereunder, solely for the purpose of performing the Services. Such limited right and license will extend to no other materials or for any other purpose and will terminate automatically upon expiration or termination of the relevant Statement(s) of Work or this Agreement for any reason.

5.4  Rights in Front End Stack. Except as set forth below, Customer will own all Intellectual Property Rights in the Front End Stack (as defined in the SOW attached hereto). The Front End Stack constitutes “works made for hire” for Customer, as that phrase is defined in the Copyright Act of 1976, and Customer will be considered the author and will be the owner of the Front End Stack, including all associated Intellectual Property Rights. MeetKai hereby assigns and transfers to Customer all rights, title and interest in and to the Front End Stack and all such Intellectual Property Rights in all countries and territories worldwide and under any international conventions, free and clear of any and all liens, pledges, encumbrances or claims. MeetKai agrees to execute any documents of assignment or registration and take any and all further actions requested by Customer relating to the Front End Stack, and all such Intellectual Property Rights. MeetKai further agrees to cooperate fully with Customer, both during and after the engagement, with respect to the procurement, maintenance and enforcement of such Intellectual Property Rights. Except for the assignment expressly stated above in this Section 5.4, MeetKai does not assign or transfer any Intellectual Property Rights in connection with this Agreement. Notwithstanding the foregoing, any modifications or improvements to any MeetKai pre-existing or separately developed Technology will be owned by MeetKai and, if applicable, will be licensed to Customer as set out in Section 5.5 below.

5.5  MeetKai Technology and Third Party Property. MeetKai will expressly identify in the SOW any Third Party Property that will be incorporated into the Front End Stack or will otherwise obtain Customer’s prior written approval prior to the incorporation thereof. If MeetKai incorporates its own Technology or any Third Party Property into the Front End Stack, MeetKai hereby grants Customer a perpetual, irrevocable, paid up, royalty-free, non-exclusive, worldwide license to copy, distribute, display, perform, create derivative works of and otherwise use such Technology and Third Party Property solely as incorporated into the Front End Stack (such MeetKai Technology and Third Party Property will remain owned, respectively by MeetKai or the third party). Subject to compliance with the first sentence of this Section 5.5, to the extent any Third Party Property incorporated in the Front End Stack is subject to any third party terms and conditions, then Customer’s use of such Third Party Property will be pursuant to such terms and conditions. But for clarity, this is not a license to Meetkai’s Platform (as defined in the MSA) or any artificial intelligence models developed MeetKai that are not incorporated in the Front End Stack. Customer’s authorization to use the Platform, including in connection with the Front End Stack, will be in accordance with the authorization set forth in the MSA.

6.1  Mutual Warranties. Each party represents and warrants that (i) it is a corporate entity in good standing in its jurisdiction of incorporation or formation, (ii) it has obtained all necessary approvals, consents and authorizations to enter into, and to perform its obligations under, this Agreement and each SOW, (iii) it has all right, power, and authority to execute this Agreement and perform its obligations hereunder, (iv) it is not under any current obligation or restriction, nor will it knowingly assume any such obligation or restriction, that does or could interfere with the performance of its obligations under this Agreement or an SOW, and (v) the execution, delivery, and performance of this Agreement or any SOW does not violate any provision of any bylaw, charter, regulation, or any other governing authority of the party, or any other agreement to which it is a party, and its obligations under this Agreement, including each SOW, are valid and binding obligations of that party.

6.2  MeetKai Warranties. MeetKai understands that Customer respects proprietary rights and does not desire to acquire from MeetKai any Technology, Intellectual Property Rights or confidential information of third parties. MeetKai represents, warrants and covenants to Customer that (i) neither MeetKai nor any of MeetKai’s employees or agents is under any pre-existing obligation inconsistent with the terms of this Agreement; (ii) the Services to be performed under this Agreement and the results thereof (including without limitation the Deliverables) will be the original work of MeetKai, or MeetKai will otherwise have sufficient rights thereto, free and clear of any claims or encumbrances of any kind that would restrict use of the Front End Stack as contemplated hereunder; (iii) any software provided hereunder include no computer instructions the purpose of which is to disrupt or damage or interfere with the use of computer and telecommunications facilities or to perform functions which are not an appropriate part of the functionality of the Front End Stack and the purpose of which is to disrupt processing; (iv) MeetKai’s performance of the Services does not and will not violate or conflict with or result in a breach of any terms, conditions, duties or obligations MeetKai has to any third party or any other rights of any third party; and (v) all personnel performing Services for MeetKai under this Agreement have and will have executed appropriate agreements with MeetKai so that MeetKai may fulfill MeetKai’s obligations under this Agreement

6.3  Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTIONS 6.1 AND 6.2 ABOVE, MEETKAI MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, AS TO ANY OTHER MATTER WHATSOEVER, AND MEETKAI HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR NEED, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.

EXCEPT FOR (I) MEETKAI’S INDEMNITY OBLIGATIONS PURSUANT TO SECTION 9.1(vi) ONLY, (II) A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT (INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO A VIOLATION OF APPLICABLE LAWS), (III) EITHER PARTY’S BREACH OF SECTION 8 (CONFIDENTIALITY) OR (IV) MEETKAI’S WILLFUL INFRINGEMENT UPON, OR MISAPPROPRIATION OF, CUSTOMER’S INTELLECTUAL PROPERTY RIGHTS, NEITHER PARTY WILL BE LIABLE IN CONNECTION WITH THIS AGREEMENT FOR ANY (I) SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF FORESEEEABLE, OR (II) AMOUNTS FOR DIRECT DAMAGES, IN THE AGGREGATE, IN EXCESS OF THE FEES PAID BY CUSTOMER TO MEETKAI DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTH PERIOD. IN ADDITION, MEETKAI WILL NOT BE LIABLE FOR ANY COST OF PROCUREMENT OF SUBSTITUTE TECHNOLOGY OR SERVICES (“STANDARD CAP”).

Section 8 of the MSA will apply to all business and technical information disclosed hereunder; provided, that, all Customer Property and the Front End Stack will be Customer’s Confidential Information; provided, further, that, any individual open source component incorporated therein is not Customer’s Confidential Information.

9.1  MeetKai Indemnity. MeetKai will indemnify and hold Customer, its affiliates, subsidiaries, successors, and assigns, and their respective officers, directors, employees, stockholders and agents harmless from and against all third party claims (and all resulting, out-of-pocket: liabilities, damages, costs, losses, and expenses, including reasonable legal and other professional fees) (“Claims and Resulting Losses”) incurred resulting from: (i) any breach by MeetKai, including its employees, agents and subcontractors of its obligations under this Agreement or any SOW; (ii) other claims by third parties, including claims for death, personal injury, or damage to physical property, to the extent caused directly or indirectly by the Platform; (iii) MeetKai having made inaccurate or unauthorized warranties, representations or statements, or otherwise acting beyond the scope of its authority as set out in this Agreement or any SOW; (iv) MeetKai’s negligence or willful misconduct; (v) MeetKai’s violation of any laws or regulations; and (vi) a claim that the Front End Stack (including any of MeetKai’s Technology or any Third Party Property incorporated therein) infringes upon a third party’s copyrights or misappropriates a third party’s trade secrets. This Section 9.1 sets out MeetKai’s sole liability, and Customer’s exclusive remedy, with respect to any claims that are subject to Section 9.1(vi).

9.2  Procedures. Customer must: (a) promptly notify MeetKai of all claims and threats thereof; (b) give the MeetKai sole control of all defense and settlement activities; and (c) provide MeetKai with all reasonably requested assistance with respect thereto, provided, however, that MeetKai will not agree to any settlement or consent judgment unless it contains a complete release of liability for Customer without admitting any fault on Customer’s behalf.

10.1   Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assignees. Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement to (i) a successor to all or substantially all of a party’s business or assets, or (ii) its parent company or any direct or indirect subsidiary of such party’s parent company, provided that, the acquirer is bound by all the terms and conditions of this Agreement (including SOWs) and has the financial and engineering resources and capabilities to continue to fully perform this Agreement (including SOWs) for the remainder of the term. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 10.1 will be null and void. MeetKai covenants and agrees that it will not, through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Agreement (including SOWs).

10.2   Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, pandemic, riot, natural disaster, failure or diminishment of telecommunications, or refusal of a license by a government agency. If a force majeure event prevents a party’s performance hereunder for more than sixty (60) days, the other party may terminate the affected SOW on written notice.

10.3   Governing Law; Jurisdiction. This Agreement shall be governed by the laws of the State of Delaware and the United States without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement shall be finally settled in accordance with the Rules of the Judicial Arbitration and Mediation Service (“JAMS”) in accordance with such Rules. To the extent the JAMS streamlined rules are available – they shall apply. The arbitration shall take place in Los Angeles, California, in the English language and the arbitral decision may be enforced in any court. To the extent a claim cannot legally be arbitrated (as determined by an arbitrator), the jurisdiction and venue for actions related to the subject matter hereof shall be the state and United States federal courts located in Los Angeles, California and both parties hereby submit to the personal jurisdiction of such courts.

10.4   Notice. Except as otherwise set forth in this Agreement, any notice or communication required or permitted under this Agreement shall be in writing to the parties at the addresses set forth below, or at such other address as may be given by either party to the other and shall be deemed to have been received by the addressee: (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch; (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the fourth business day after such notice is deposited in the mail; and (iv) if sent by email, when transmitted if transmitted to the email address specified by the recipient and acknowledge as received by such recipient. In addition, any legal notices to (i) MeetKai (such as for breach of this Agreement) must be delivered to the following email address: ______________ (“Legal” – must be included in the subject heading) and (ii) Customer (such as for breach of this Agreement) must be delivered to the following email address: ______________, but, notwithstanding earlier receipt via email, legal notices will be deemed received when the physical notice is received as set forth in preceding sentence. Contact addresses may be updated in notice.

10.5   Publicity. Neither party shall use the name of the other party in any news release, public announcement, advertisement, or other form of publicity without securing the prior written consent of the other. Notwithstanding the foregoing, Customer may, in its sole and absolute discretion, make any public disclosure as reasonably determined by Customer’s General Counsel in order for Customer (or its affiliates) to comply with reporting obligations under United States securities laws.

10.6   Relationship. The parties are independent contractors, and nothing in the Agreement will be construed as to be inconsistent with that relationship. Under no circumstances will any of a party’s personnel be considered employees or agents of the other party. Nothing in this Agreement grants either party the right or authority to make commitments of any kind for the other, implied or otherwise, without the other party's prior written agreement. Neither this Agreement nor any SOW constitutes or creates, in any manner, a joint venture, agency, partnership, or formal business organization of any kind.

10.7   Entire Agreement. This Agreement, together with any SOWs entered into pursuant hereto, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. This Agreement (and any SOW) may only be amended or waived in a writing executed by both parties. If any provision of this Agreement shall be adjudged by an any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect. This Agreement may be executed electronically and in counterparts (such as via DocuSign).