Raydiant Master Services Agreement

This Master Services Agreement governs Customer’s acquisition and use of Raydiant’s Services. Capitalized terms have the definitions set forth herein. 

CUSTOMER ACCEPTS AND AGREES TO THE TERMS OF THIS AGREEMENT BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES. THE AGREEMENT IS EFFECTIVE BETWEEN CUSTOMER AND RAYDIANT AS OF THE EFFECTIVE DATE.

This Agreement was last updated on March 11th, 2024.

Master Services Definitions.

1. “Affiliates” means any entity which directly or indirectly, is controlled by, or is under common control with a party to this Agreement.

2. "Aggregated Statistics" means data and information related to Customer's use of the Services that is used by Raydiant in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services. For the avoidance of doubt Aggregated Statistics do not include personally identifiable information, or such equivalent term, as defined under applicable data protection laws.

3. “Agreement” means this Master Services Agreement.

4. "Authorized User" means Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder.

5. “Customer” means the contracting party identified on an applicable Order Form. 

6. "Customer Data" means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services. 

7. “Digital Displays” means digital feeds, apps, and content created and provided by Customer or third parties during the use of the Services.

8. "Documentation" means Raydiant's user manuals, handbooks, and guides relating to the Services provided by Raydiant to Customer either electronically or in hard copy form/end user documentation relating to the Services.

9. “Effective Date” means the date the Parties have executed an Order Form.

10. “Order Form” means the document indicating type, quantities, prices and terms for the Raydiant Platform and Services described in the undersigned Order Form or Quote.

11. “Party” means either Raydiant or Customer.  “Parties” mean Raydiant and Customer collectively.

12. “Raydiant” means Raydiant, Inc.

13. "Raydiant IP" means the Raydiant Platform, Raydiant Hardware, Raydiant Content, Services, Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Raydiant IP includes Aggregated Statistics and any information, data, or other content derived from Raydiant's monitoring of Customer's access to or use of the Services, but does not include Customer Data.

14. “Raydiant Content” means links, text, graphics, images, audio, video, information, code, or other materials provided by Raydiant.

15. “Raydiant Hardware” means the Raydiant ScreenRay and any other hardware or products licensed by Raydiant to be used in connection with the Services.

16. “Raydiant Platform” means the complete suite of Raydiant Content, Raydiant Hardware, and Services.

17. "Services" means a the provision of services to Customer under this Agreement, including but not limited to, the sale or lease of Raydiant Hardware, the granting of access to Raydiant’s proprietary software application to be hosted and made available by Raydiant on a software-as-a-service basis, provision of technology through which Digital Displays and Raydiant Content can be hosted and displayed, and/or the provision of technical support or other professional services requested by Customer as set forth on an applicable Order Form.

18. "Third-Party Products" means any third-party products described in the undersigned Order Form provided with or incorporated into the Services.

2. Access and Use.

 a. The Raydiant Platform. Subject to terms and conditions of this Agreement, Raydiant shall make the Raydiant Platform available to Customer and Customer’s Authorized Users solely for Customer’s internal business operations. Raydiant affords access to its Raydiant Platform through the issuance of Services Subscriptions for each dashboard account, as identified on an applicable Order Form. Raydiant hosts the software used in the Raydiant Platform. Additionally, Raydiant provides the Raydiant Hardware for the Customer to use in connection with the Services.  Raydiant Hardware is provided to Customer subject to the terms of this Agreement and to the terms contained within an applicable Hardware Addendum, attached as Exhibit B to this Agreement. Unless agreed by both Parties, Raydiant Hardware is intended to be returned by the Customer after the termination or expiration of the Agreement. Raydiant may update the functionality, user interface, usability, and Documentation of the Raydiant Platform, from time to time in its sole discretion and in accordance with this Agreement. Raydiant acknowledges that Customer’s Affiliates may purchase and use the Raydiant Platform, either wholly or in part, by executing Order Forms that incorporate the terms and conditions of this Agreement. In each such case, all references in this Agreement to “Customer” shall be deemed to include such Customer Affiliate for the purposes of the Order Form. If Customer requests a change in any of the pre-approved specifications, requirements, Deliverables, or scope (including drawings and designs) of the Services described in any Order Form, the Customer shall propose the applicable changes by written notice. Upon discussion and agreement with the proposed changes, Raydiant will prepare a Process Change Request ("PCR") describing the proposed changes to the Order Form and the applicable change in the completion date(s) or Term(s), if any. Customer shall pay Raydiant a fee of five thousand dollars ($5,000) (“PCR Fee”) in addition to the Fees for the Services for each PCR and in accordance with Section 5 (Fees and Payment) of the Agreement. PCRs are not binding unless and until they are executed by both parties. Executed PCRs shall be deemed part of, and subject to, this Agreement. Raydiant shall not proceed with any proposed change unless documented in a PCR executed by both Parties.

b. Provision of Access. Subject to and conditioned on Customer’s payment of Fees and compliance with the terms and conditions of this Agreement, Raydiant hereby grants Customer a non-exclusive, non-transferable 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. Raydiant shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services.

c. Documentation License. Subject to the terms and conditions contained in this Agreement, Raydiant hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable license to use the Documentation during the Term solely for Customer's internal business purposes in connection with its use of the Services.

d. Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vi) use the Raydiant Platform for the purpose of building a similar or competitive product or service; (vii) access or use the Raydiant Platform to circumvent or exceed any subscription limitations or requirements; (viii)  publish, post, upload or otherwise transmit through the Raydiant Platform, content that contains any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, personal information or property of another; or (ix) use or permit the use of any tools in order; to probe, scan or attempt to penetrate or benchmark the Raydiant Platform.

e. Reservation of Rights. Raydiant reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Raydiant IP.

f. Internet Connectivity and Transmission. Customer is responsible for securing an appropriate Internet connection as defined in the Documentation in order to utilize the Raydiant Platform. Customer expressly consents to Raydiant’s storage of electronic communications and/or Customer Data to the extent necessary to provide the Services hereunder, either through Raydiant directly or through Raydiant’s authorized service providers. As such, Customer acknowledges and understands that Customer's Data and electronic communications may involve transmission over the Internet, and over various networks, only part of which may be owned and/or operated by Raydiant or its authorized service Raydiant. Without limiting Raydiant’s applicable obligations under these Terms and Conditions and applicable law, Raydiant is not responsible for any electronic communications and/or Customer Data which are delayed, lost, altered, intercepted or stored during the transmission across networks not owned and/or operated by Raydiant or its authorized service Raydiant. Raydiant is not responsible for interruption to the Services caused by outages in Internet connectivity.

g. Suspension. Notwithstanding anything to the contrary in this Agreement, Raydiant may temporarily suspend Customer's and any Authorized User's access to any portion or all of the Services if: (i) Raydiant reasonably determines that (A) there is a threat or attack on any of the Raydiant IP; (B) Customer's or any Authorized User's use of the Raydiant IP disrupts or poses a security risk to the Raydiant IP or to any other customer or vendor of Raydiant; (C) Customer, or any Authorized User, is using the Raydiant IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (E) Raydiant's provision of the Services to Customer or any Authorized User is prohibited by applicable law; or (F) Raydiant reasonably determines that Customer has not paid or made a good faith effort in paying any or all open invoices per the applicable Order Form or Terms of this Agreement. (ii) any vendor of Raydiant has suspended or terminated Raydiant's access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 5(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Raydiant shall use reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Raydiant shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Raydiant will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension. 

h. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Raydiant may monitor Customer's use of the Services and collect and compile Aggregated Statistics. As between Raydiant and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Raydiant. Customer acknowledges that Raydiant may compile Aggregated Statistics based on Customer Data input into the Services. Customer agrees that Raydiant may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Customer or Customer's Confidential Information.

3. Customer Responsibilities.

a. General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Services, and shall cause Authorized Users to comply with such provisions.

b. Third-Party Products. Raydiant may from time to time make Third-Party Products available to Customer. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions and the applicable flow-through provisions referred to in the Order Form. If Customer does not agree to abide by the applicable terms for any such Third-Party Products, then Customer should not install or use such Third-Party Products.

4. Service Levels and Support.

a. Service Levels and Support. Subject to the terms and conditions of this Agreement, Raydiant shall use commercially reasonable efforts to make the Services available in accordance with the service and support levels set out in Exhibit A. 

b. Customer has the option of providing its own hardware and equipment required to use the Services with prior approval from Raydiant (“Customer-Provided Hardware”). Raydiant shall have no obligation to install, operate, support, or maintain Customer-Provided Hardware. All Customer-Provided Hardware must be used in accordance with the Documentation and fully compatible with the Services. Customer alone shall be responsible for providing maintenance, repair, operation and replacement of all Customer-Provided Hardware. Raydiant shall not be responsible to the Customer if changes in any of the Services render any Customer-Provided Equipment obsolete or require modification or alteration of such equipment or system or otherwise affect its use or performance.

c. If Customer elects to use Customer-Provided Hardware, Customer shall be responsible for the payment of the following charges for post-quality assurance, support or troubleshooting attempted or performed by Raydiant’s employees or authorized contractors: (i) three hundred dollars ($300) per hour for post quality assurance consultation, to be charged at a minimum of ten (10) hours; and (ii) two hundred and fifty dollars ($250) per hour, to be charged at a minimum of one (1) hour, for any support or troubleshooting consultation provided by Raydiant via phone call. All such charges in relation to Customer-Provided Hardware shall be charged as Raydiant’s Professional Services and subject to Raydiant’s Professional Services Addendum.

5. Fees and Payment. 

a. Fees. Customer shall pay Raydiant the fees ("Fees") as set forth in the undersigned Order Form without offset or deduction. Customer shall make all payments hereunder in US dollars on or before the due date set forth in the Order Form. If Customer fails to make any payment when due, without limiting Raydiant's other rights and remedies: (i) Raydiant may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse Raydiant for all reasonable costs incurred by Raydiant in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (iii) if such failure continues for 27 days or more, Raydiant may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full. Additionally, all subscriptionFees will continue accruing during the suspension period for the Term of an applicable Order Form. Raydiant will make best efforts to contact the Customer during this time. If the balance is not reasonably collectable by the Raydiant team, Raydiant reserves the right to transfer this balance to a collection agency, and if we do so Customer must pay any costs that Raydiant incurs in connection with the recovery of the unpaid Fees (including the agency’s fees and any legal fees)

b. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. 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 Raydiant's income.

6. Confidential Information. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

7. Intellectual Property Ownership. 

a. Raydiant IP. Customer acknowledges that, as between Customer and Raydiant, Raydiant owns all right, title, and interest, including all intellectual property rights, in and to the Raydiant IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products. 

b. Customer Data. Raydiant acknowledges that, as between Raydiant and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to Raydiant a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Raydiant to provide the Services to Customer  and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.

c. Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Raydiant by mail, email, telephone, or otherwise, suggesting or recommending changes to the Raydiant IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Raydiant is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. 

d. Marketing License. Customer grants to Raydiant a worldwide, royalty-free, non-transferable, and non-exclusive limited license to use Customer’s trade names, trademarks, service marks, logos, and Customer’s non-confidential content for the sole purpose of publicizing Customer’s relationship with Raydiant and that Customer uses the Raydiant Platform and Services.

8. Limited Warranty and Warranty Disclaimer. 

a. Raydiant will perform the Services using commercially reasonable care and skill in all material respects as described in the Documentation. Raydiant warrants that the Services will conform in all material respects to the service levels set forth in Exhibit A when accessed and used in accordance with the Documentation. Raydiant does not make any representations or guarantees regarding uptime or availability of the Services unless specifically identified in Exhibit A. 

b. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a), THE RAYDIANT IP AND SERVICES ARE PROVIDED "AS IS" AND RAYDIANT HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. RAYDIANT 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. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 8(a), RAYDIANT MAKES NO WARRANTY OF ANY KIND THAT THE RAYDIANT IP, SERVICES, 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. 

c. For any breach of the warranty, Customer's exclusive remedy and Raydiant's entire liability shall be the correction of the deficient service that caused the breach of warranty, or, if Raydiant cannot substantially correct the deficiency in a commercially reasonable manner, Customer may terminate this Agreement for cause in accordance with Section 11(b)(ii).

9. Indemnification. 

a. Raydiant Indemnification. 

i. Raydiant shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys' fees) ("Losses") incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party's copyrights, or trade secrets, provided that Customer promptly notifies Raydiant in writing of the claim, cooperates with Raydiant, and allows Raydiant sole authority to control the defense and settlement of such claim. 

ii. If such a claim is made or appears possible, Customer agrees to permit Raydiant, at Raydiant's sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If Raydiant determines that neither alternative is reasonably available, Raydiant may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer. 

iii. This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Raydiant or authorized by Raydiant in writing; (B) modifications to the Services not made by Raydiant; (C) Customer Data; or (D) Third-Party Products. 

b. Customer Indemnification. Customer shall indemnify, hold harmless, and, at Raydiant's option, defend Raydiant from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party's intellectual property rights and any Third-Party Claims based on Customer's or any Authorized User's (i) negligence or willful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Raydiant or authorized by Raydiant in writing; or (iv) modifications to the Services not made by Raydiant, provided that Customer may not settle any Third-Party Claim against Raydiant unless Raydiant consents to such settlement, and further provided that Raydiant will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice. 

c. Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER'S SOLE REMEDIES AND RAYDIANT'S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. 

10. Limitations of Liability. IN NO EVENT WILL RAYDIANT BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER RAYDIANT WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. 

IN NO EVENT WILL RAYDIANT'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO RAYDIANT UNDER THIS AGREEMENT IN THE TWELVE (12)  MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. 

11. Term and Termination. 

a. Term. Unless otherwise stated within a Order Form, the initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement's express provisions, will continue in effect for the term (the “Initial Term”) on the undersigned Order Form  from the last Location Start Date. This Agreement will automatically renew for an additional term equal to the Initial Term unless earlier terminated pursuant to this Agreement's express provisions or either Party gives the other Party written notice of non-renewal at least sixty (60)  days prior to the expiration of the then-current term (each a "Renewal Term" and together with the Initial Term, the "Term").

b. Termination. In addition to any other express termination right set forth in this Agreement:

i. Raydiant may terminate this Agreement, effective on written notice to Cusb. tomer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Raydiant's delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(d) or 6;

ii. 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: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or

iii. either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

iv. either Parties acknowledge and agree that each Subscription Term is priced as a minimum term, and may not be terminated for convenience

c. Termination Fees.

i. Fee for Early Termination. If Customer terminates the Agreement prior to the end of the then-current Term, including any Renewal Term, for any reason other than the termination provisions of Section 11(b), Customer agrees to pay Raydiant all remaining, unpaid total Fees payable under each outstanding Order Form.

ii. Raydiant Hardware. Upon expiration or or earlier termination of the Agreement, Customer agrees to return all leased Raydiant Hardware provided to Customer for the use of the Services. If Customer does not return leased Raydiant Hardware, Customer agrees to pay Raydiant a missing hardware fee based on the original list price summarized in Exhibit B.

iii. To the extent any Raydiant Hardware includes a kiosk provided by Raydiant for the use of the Services (“Raydiant Kiosk”), all returns are subject to a one-thousand-dollar ($1,000) restocking fee per Raydiant Kiosk (“Kiosk Restocking Fee”). Customer shall initiate a return by shipping Raydiant Kiosks to Raydiant at: 1 Whalley Way, Southwick, MA 01077. Customer is responsible for all return shipping costs and Raydiant is not responsible for any damage or loss during transit. Raydiant Kiosks must be returned in their original, working condition. Raydiant shall inspect any returned Raydiant Kiosk and if, in Raydiant’s sole discretion, Raydiant determines the condition of the Raydiant Kiosk to be satisfactory, Raydiant will process the return within a minimum of two weeks from the date the Raydiant Kiosk was received by Raydiant.

d. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer shall immediately discontinue use of the Raydiant IP and, without limiting Customer's obligations under Section 6, Customer shall delete, destroy, or return all copies of the Raydiant IP and certify in writing to the Raydiant that the Raydiant IP has been deleted or destroyed. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.

e. Survival. This Section 11(e) and 1, 2, 5, 6, 7, 8(b), 9, 10, 12 and 13 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

12. Privacy and Data.  

a. Customer shall use the Services in accordance with applicable data protection laws, including but not limited to the EU General Data Protection Regulation 2016/679, the California Consumer Privacy Act of 2018, and any equivalent law related to privacy, data protection, information security, confidentiality and data breach notification. Customer agrees to, if required under applicable laws, provide privacy notices to end-users. 

b. Customer represents and warrants, and shall ensure throughout the Term, that it has all necessary rights, permissions, and consents, and an adequate legal basis, for the collection and processing of personal information. To the extent such a concept is recognized under Law, the Customer is the controller and Raydiant is the processor with respect to any personal information of end-users or consumers collected by Customer in the use of the Services.

13. Miscellaneous. 

a. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, this Agreement, excluding its Exhibits; (ii) second, the Exhibits to this Agreement as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.

b. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the addresses set forth below (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.

i. To Raydiant: 

Raydiant, Inc. Attn: Legal, 35 Stillman Street,
San Francisco, CA 94107

ii. Bill to Contact

a. [Name/Address/Contact Information/E-mail address/etc.]

c. Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond such Party's reasonable control, including but not limited to acts of God, flood, fire, earthquake, pandemic, epidemic, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.

d. Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

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

f. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the city of San Francisco and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

g. Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Raydiant. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns. 

h. Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US. 

i. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under section 6 or, in the case of Customer, Section 2(c), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise. 

j. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the Effective Date.

EXHIBIT A

SERVICE LEVEL AGREEMENT

This Service Level Agreement ("SLA") is a part of the Master Services Agreement ("Agreement”) and any applicable Order Form(s) between Raydiant and Customer, incorporated herein by reference, under which Raydiant performs certain services for Customer. It sets forth the parties' objectives and the performance levels Raydiant must meet for all included Services. This SLA is effective beginning on the Effective Date of the Master Agreement and will remain in effect until the termination of the Master Agreement. Capitalized terms used but not defined in this SLA shall have the meanings set out in the Master Agreement.

Defined Terms. For purposes of this SLA, the following terms shall have the following meanings:

"Service Level" means a performance standard that Raydiant is required to meet in providing the Services, as set forth in this SLA.

1. Service Scope. This SLA covers the following Services:

• The Services offered under the Agreement.

This SLA does NOT cover the following:

• In-person support services to assist with implementation of the Raydiant Platform. Raydiant offers optional Professional Services for an additional fee to assist with support of the Services.

2. Customer Obligations. Customer's responsibilities and obligations in support of this SLA include the following:

a. Providing information, authorizations, and use of Customer facilities as required by Raydiant for performing the Services

b. Adhering to policies and processes established by Raydiant and Customer for reporting service failures and incidents and prioritizing service requests

c. Making a representative available to consult with the Raydiant for resolving service-related incidents or requests.

d. Paying fees and costs prior to commencement of services as required by the Agreement.

e. In the event that the commencement of services is delayed past the Location Start Date detailed in the undersigned Order Form due to actions or inactions of the Customer, the Customer shall remain liable for all dues and Fees associated with the Services, as outlined in the Agreement and applicable Order Form between the parties. Such delays may include but are not limited to failure to provide necessary information, documentation, or access required for the provision of services. The Customer acknowledges and agrees that any delays caused by their actions shall not absolve them of their obligations under this Agreement.

3. Raydiant Obligations. Raydiant's responsibilities and obligations in support of this SLA include:

a. Providing Documentation and other online resources to assist Customer in the use of the Raydiant Platform.

b. Meeting applicable incident response times.

c. Making a representative available to resolve service-related incidents or requests.

4. Service Levels.

a. The following table sets forth the Services measured under this SLA and the applicable Service Levels.

b. Monitoring and Reporting. Service Raydiant will classify all problem reports with a priority level as defined below at the time they are received, and will adhere to the Problem Response Times and Problem Resolution Times in the table below. 

EXHIBIT B

HARDWARE ADDENDUM

This Hardware Addendum (“Hardware Addendum”) is a part of the Master Services Agreement (“Agreement”) and any applicable Order Form, incorporated herein by reference, and sets forth additional terms and conditions that govern the sale and use of Raydiant Hardware. If Customer does not accept the terms of this Addendum, it must not use and shall return the Raydiant Hardware to Raydiant or the applicable Authorized Reseller. Any capitalized terms that are undefined below shall have the same meaning ascribed to them in the Master Agreement.

1. Lease or Purchase..

Unless purchased and the purchase price is paid in full, the Raydiant Hardware belongs to Raydiant. The Raydiant Hardware may be leased by Customer from Raydiant for the Term of the Order Form.  Customer will not sell, lease, abandon, assign, or give away any Raydiant Hardware; allow anyone other than Raydiant or its agents to service the Raydiant Hardware; or permit any other person to use the Raydiant Hardware, other than on Customer’s behalf in connection with the use of the Service. Customer acknowledges that Raydiant retains ownership of and title to the Raydiant Hardware further, Customer will keep the Raydiant Hardware free of liens, attachments and other encumbrances. Customer will be directly responsible for loss of Raydiant Hardware while in its custody or control to the extent not caused by the negligence or willful misconduct of Raydiant. Upon expiration or termination of the Agreement, Customer will return the leased Raydiant Hardware to Raydiant or its designee at Customer’s cost and in the same condition as when delivered to Customer, reasonable wear and tear excepted. If the leased Raydiant Hardware is not received in such condition within ten (10) days from the termination or expiration of the Hardware Term, Customer will be deemed to have purchased the Raydiant Hardware in question and will pay Raydiant the full list price of the applicable Raydiant Hardware as a replacement fee.

Raydiant shall implement and maintain processes to support Customer’s use of the Raydiant Hardware during the term of this Agreement. Customer will operate the Raydiant Hardware in accordance with the Documentation, and solely for purposes of operating and using the Services. Raydiant will respond within one (1) business day to a notice by Customer of any defective or inoperable equipment to remotely diagnose the issue. If Raydiant is unable to resolve the issue remotely, Raydiant will offer a replacement or send a technician on site within approximately  seven (7) business days and if the equipment needs to be repaired or replaced, Raydiant shall repair and replace any defective Raydiant Hardware at Raydiant’s sole cost and expense.    

2. Delivery; Risk of Loss; Title.

(a) Shipping Costs. Customer is responsible for the shipping charges incurred for the delivery of the Raydiant Hardware. Estimated shipping charges for  Raydiant Hardware purchased by Customer will be identified on the applicable Order Form. These are estimates only. After the Raydiant Hardware has shipped, Raydiant will invoice Customer for all shipping charges actually incurred, which will be due in accordance with the payment terms set forth on the Order Form and this Agreement.

(b) Delivery. Raydiant will use commercially reasonable efforts to deliver Raydiant Hardware on the date specified in the Order Form to the address specified in the Order Form.   In the event that Customer requests a change of delivery address after Raydiant has delivered the Raydiant Hardware to the common courier, Customer agrees that the delivery may be delayed and that Customer is solely responsible for any additional costs associated with the change in delivery address. Raydiant Hardware is deemed accepted on the Delivery Date, subject to applicable limited Raydiant Hardware warranty set forth below. Raydiant will not be liable to Customer for any delay in the delivery of Raydiant Hardware. Raydiant shall not be responsible for and no liability shall result to Raydiant or any of its Affiliates for any delays in delivery which result from any circumstances beyond Raydiant’s reasonable control, including, but not limited to, product unavailability, carrier delays, delays due to fire, severe weather conditions, failure of power, labor problems, acts of war, terrorism, embargo, acts of God, or acts or laws of any government or agency. Any shipping dates provided by Raydiant and any purported deadlines contained in any other document are estimates only. 

(c) Risk of Loss. All Hardware shipments will be made in accordance with EXW (Incoterms 2020) at Raydiant’s or its Hardware distributor’s loading dock, and risk of loss for the Raydiant Hardware shall transfer to Customer at such time as the Raydiant Hardware is made available at such loading dock (“Delivery Date”). Customer is responsible for selecting the mode of shipment for Raydiant Hardware, though Raydiant may designate the mode if none is selected by Customer without assuming any additional risk for loss.

(d) Transfer of Title. Title to purchased Raydiant Hardware shall transfer to Customer upon Raydiant’s delivery of purchased Raydiant Hardware to the first common carrier.

(e) Export. If this transaction involves an export of items (including, but not limited to commodities, software or technology), subject to the Export Administration Regulations, such items were exported from the United States by Raydiant in accordance with the Export Administration regulations. Customer agrees that Customer will not divert, use, export or re-export such items contrary to law. Customer expressly acknowledges and agrees that Customer will not export, re-export, or provide such items to any entity or person within any country that is subject to United States economic sanctions imposing comprehensive embargoes without obtaining prior authorization from the United States Government.

3. Acceptance of Hardware. Upon Raydiant’s installation of the Raydiant Hardware, or Customer’s receipt and installation of the Raydiant Hardware, Customer will inspect the Raydiant Hardware within seven (7) days of the installation.  Unless Customer gives Raydiant written notice of each defect or other proper objection to the Raydiant Hardware promptly after installation, it will be conclusively presumed that Customer has fully inspected and acknowledged that the Raydiant Hardware is in good condition and repair and is performing satisfactorily, and that Customer is satisfied with and has accepted such Raydiant Hardware in such good condition and repair at the end of such period.

4. Care, Use, Repair and Replacement. Customer will use the Raydiant Hardware in accordance with this Agreement.  As long as there is a valid and executed Order Form in effect, in the event that Customer determines that the Raydiant Hardware is not operating in a commercially reasonable manner and in conformance with the Agreement, Customer will notify Raydiant technical support as provided in Section 5.  Upon receipt of said notification, Raydiant technical support and/or Raydiant’s agents will be responsible for repairing or replacing malfunctioning Raydiant Hardware that has not been subject to conditions in excess of ordinary wear-and-tear, at no charge to Customer. In no event will Customer perform any repair on the Raydiant Hardware without the prior approval of Raydiant. If Customer undertakes any repair in violation of this Section 4, Raydiant shall be entitled to charge Customer for the cost of remedying any damage to the Raydiant Hardware caused by such unauthorized repair. Customer will be responsible for obtaining and paying for any electricity, or power, or other utility service, used in connection with the Raydiant Hardware during the Term.  There will be no abatement of fees on account of interruption of any such services. 

5. Technical Support.

Customer can designate a reasonable number of people per installation location which designees will be eligible to receive responses by qualified Raydiant personnel to questions from Eligible Support Recipients related to use and operation of the Services (“Technical Support”). Technical Support from Raydiant (“Eligible Support Recipients”). Customer may change such designees at any time by providing written notice to Raydiant. Subject to Customer’s payment of all applicable fees and subject to the terms and conditions of this Agreement, Raydiant or its agents will use commercially reasonable efforts to provide Technical Support to Eligible Support Recipients during Raydiant’s ordinary and customary business hours (Monday – Friday, 10:00am – 5:00pm EST) in accordance with its standard policies and procedures.  If Raydiant Hardware replacement is required, Raydiant will deliver a replacement unit at no additional cost to Customer.

Technical Support is provided by Raydiant for the Raydiant Hardware and for the Services for a period of two years after the Acceptance of the Raydiant Hardware and Services.  

As a condition of Raydiant’s obligations hereunder, Customer will provide such information and/or access to Customer resources as Raydiant may reasonably require in order to provide Technical Support under this Agreement, including, without limitation, access via the Internet or via direct modem or VPN connection to relevant Customer servers, access to Customer facilities, and/or access to, and assistance of, Customer personnel who possess information required by Raydiant for purposes of performing its obligations hereunder, provided that Raydiant shall not connect to Customer’s network without prior authorization and permission from Customer’s Information Services. Raydiant will be excused from any non-performance of its obligations hereunder to the extent any such non-performance is attributable to Customer’s failure to perform its obligations under this Section.  

6. Warranty and Replacement. 

(a) Limited Manufacturers Warranty. Raydiant is not the manufacturer of the Raydiant Hardware. Therefore, the Raydiant Hardware warranties offered are only those of the relevant manufacturer. The manufacturer offers a one year limited manufacturer warranty (“Warranty Period”). In purchasing the Raydiant Hardware, Customer agrees that Customer is relying on the manufacturer's specifications only. RAYDIANT AND ITS AFFILIATES HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES EITHER EXPRESS OR IMPLIED, RELATED TO THE RAYDIANT HARDWARE PURCHASED BY CUSTOMER INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF NONINFRINGEMENT. THE DISCLAIMER CONTAINED IN THIS PARAGRAPH DOES NOT AFFECT THE TERMS OF ANY MANUFACTURER'S WARRANTY.

(b) Replacement within Warranty Period. If Raydiant Hardware is non-functional within the Warranty Period, Customer may submit a replacement request to Raydiant via Raydiant’s support channel at support@raydiant.com  to replace the Raydiant Hardware with a functional device. Customer must ship the non-functioning Raydiant Hardware to the address provided by Raydiant. Customer is responsible for shipping costs, replacement fees, and any other applicable fees for replacement.  Once received, Raydiant will evaluate the non-functioning device. Upon approval of the replacement request, Raydiant will ship a functioning device to the Customer. The terms and conditions of this section 3(b) do not apply if the non-functioning Raydiant Hardware is due, in part or wholly, to Customer’s negligence or intentional act that caused the malfunction.

(c) Replacement outside of Warranty Period. If Raydiant Hardware is non-functional after the Warranty Period has expired, Customer may submit a replacement/purchase request via Raydiant’s support channel at support@raydiant.com to replace the Raydiant Hardware with a functional device. Upon approval of the replacement request, Customer must ship the non-functioning Raydiant Hardware to the address provided by Raydiant. Once received, Raydiant will evaluate the non-functioning device. Upon approval of the replacement request, Raydiant will ship a functioning device to the Customer. Customer support will ship a new Raydiant hardware. Customer is responsible for all shipping costs, replacement/purchase fees, and any other applicable fees for replacement.  The terms and conditions of this section 6(c) do not apply if the non-functioning Raydiant Hardware is due, in part or wholly, to Customer’s negligence or intentional act that caused the malfunction.

(d) Lost or Stolen Hardware. If Raydiant Hardware is lost or stolen, Customer must purchase new Raydiant Hardware at market price. Customer is responsible for all shipping costs, replacement fees, and any other applicable fees for replacement.  

EXHIBIT D

PROFESSIONAL SERVICES ADDENDUM

This Professional Services Addendum ("Addendum") sets forth the terms and conditions governing the professional services offered by Raydiant pursuant to the Raydiant Enterprise Agreement (“Agreement”) and any applicable Order Form, entered into between Raydiant and Customer and incorporated herein by reference. The professional services are designed to support Customer in Customer’s use of the Services and range from consulting on visual communications strategy, to implementation, and finally to ongoing support and management of the Raydiant Platform (“Professional Services”). Capitalized terms used in this addendum shall have the meaning defined under the Agreement.

1. Scope of services. Subject to the terms and conditions of the terms and conditions and this addendum, Raydiant will Provide customer with Professional Services as set forth in the applicable Order Form or Statement of Work (“SOW”). 

2. Change order process. If customer or Raydiant requests a change in any of the specifications, requirements, Deliverables, or scope (including drawings and designs) of the Professional Services described in any SOW, the party seeking the change shall propose the applicable changes by written notice. Upon discussion and agreement with the proposed changes, Raydiant will prepare a Process Change Request ("PCR") describing the proposed changes to the SOW and the applicable change in fees and expenses, if any. PCRs are not binding unless and until they are executed by both parties. Executed PCRs shall be deemed part of, and subject to, this Addendum.

3. Project materials and installation services.

a. Deliverables. For purposes of these terms and conditions, deliverable(s) shall mean the documentation and/or training materials provided pursuant to the Professional Services performed (“Deliverables”). Unless specifically identified as a “work made for hire” in an applicable SOW, Raydiant shall own all rights, title and interest in and to the Deliverables, specifically excluding any Customer Data or information data provided to Raydiant in performing the Professional Services, which shall remain at all times the property of the Customer. Subject to the terms and conditions of the Agreement and this Addendum, Raydiant grants Customer a limited, non-exclusive, non-transferable and terminable license to use the Deliverables solely for customer's internal operations in connection with its use of the Raydiant Platform.

b. Tools. Notwithstanding any other provision of this addendum: (i) nothing herein shall be construed to assign or transfer any intellectual property rights in the proprietary tools, libraries, know-how, techniques and expertise ("Tools") used by Raydiant to develop the Deliverables, and to the extent such tools are delivered with or as part of the Deliverables, they are licensed, not assigned, to customer, on the same terms as the Deliverables; and (ii) the term "Deliverables" shall not include such tools.

c. Installation services. Raydiant scopes hardware and installation services based on industry standards and use cases and is not responsible for any adverse effect arising from an installation performed in derivation of Raydiant’s recommendations.

4. Third party engagements. If you choose to implement the Raydiant Platform either yourself or through a third party other than Raydiant or one of its authorized subcontractors, Raydiant takes no responsibility for the appropriateness, quality or efficacy of the hardware purchased or Professional Services provided.

5. Out of scope items. The following is a list of those items that are outside of the scope of Raydiant Professional Services, unless expressly stated otherwise in the applicable SOW: any software features/functionality not based on current software versions available at the time of implementation kickoff; data migration or data entry; any features demonstrated during the sales process but not specifically included in the SOW; decryption or redistribution of live video or data streams; creation of any original content such as logos or marks; converting content into file formats compatible with the Raydiant Platform; network configurations; modifications required to the project plan which are caused by features of your environment not previously disclosed to Raydiant; works made for hire (as that term is defined is defined in the United States Copyright Act, 17 U.S.C.A § 101 ), unless expressly identified as such in accordance with 3(a) above.

6. Professional Services Warranty.

a. Professional Services Warranty. Raydiant warrants that (a) it and each of its employees, consultants and subcontractors, if any, that it uses to provide and perform professional services has the necessary knowledge, skills, experience, qualifications, and resources to provide and perform the services in accordance with the SOW; and (b) the Professional Services will be performed for and delivered to customer in a good, diligent, workmanlike manner in accordance with industry standards.

b. Disclaimer. Section 6(A) above sets forth the sole and exclusive warranties and remedies related to the Professional Services, Deliverables, and Tools under this Addendum. There are no other warranties or conditions, express or implied. Except as provided herein, the Professional Services and deliverables provided to customer are on an "as is" and "as available" basis.