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SCHEMATA INC.

GENERAL TERMS AND CONDITIONS OF SERVICE

These General Terms and Conditions of Service shall govern the services provided by Schemata as specified in the applicable or statement of work (each, a “Statement of Work” or “SOW”) by and between Schemata Inc., a Delaware corporation with its corporate office at 1155 Fourth Street, No. 427, San Francisco, CA 94158 (“Schemata”), and the Customer identified in the applicable statement of work (“Customer”) (each a “Party” and collectively, the “Parties”). These general terms and conditions together with any SOW, are collectively, referred to as the “Agreement”.

WHEREAS, Schemata develops and licenses access to the hosted software application subscription service(s) as described on the applicable SOW and as further described more fully herein (collectively, the “Service”), and Customer would like to subscribe to and access the Service;

In consideration of the foregoing premises and the mutual undertakings of the parties set forth herein, and intending to be legally bound hereby, the parties do hereby agree as follows:

  1. Services.

    1. Service License Grant. Subject to the terms and conditions of this Agreement, Schemata hereby grants to Customer a limited, nonexclusive, non-transferable, non-sublicensable license to access and use the Service during the Term, solely by the number of Authorized Users as set forth on the applicable SOW, for the benefit of Customer and its Affiliates. Customer’s license is for internal use only by Customer and its Affiliates. “Authorized Users” shall mean Client’s employees, consultants and contractors authorized by Client to access and use the Services on its behalf. Customer shall comply with the terms and conditions of this Agreement and the applicable SOW.
    2. Professional Services. If and as mutually agreed by the parties on executed Statement of Work (“SOW”) made a part hereof, Schemata may also provide certain professional or similar services (“Professional Services”) in addition to the subscription Service. Professional Services may include, without limitation, the buildout of custom digital twin module(s), their deployment, and/or related services.

  2. Proprietary Rights.

    1. Customer Data. Customer owns or has properly licensed all right, title and interest in and to all Customer Data (defined below) and all Customer Confidential Information. As used herein, “Customer Data” shall mean any and all data and information delivered by or on behalf of, or collected directly or indirectly from, Customer, its Affiliates, or their respective customers and/or end users, which may include personal data as defined by law. Customer shall have access during the term, and for a reasonable tail period thereafter, to manage, access, and export the Customer Data. If and to the extent necessary for operation of the Service, Customer hereby grants to Schemata a limited, non-exclusive license, during the Term, to use the Customer Data within the Service to the extent necessary in order to perform its obligations herein
    2. Schemata Technology. Customer acknowledges and agrees that, subject only to the limited rights expressly granted to Customer under Section 1, Schemata owns and shall at all times retain all rights in and to the Services, including without limitation, all trade secret, copyright, patent, trademark, trade name, and other intellectual and proprietary rights in the Service, software and the Documentation, and all Schemata Data (defined below), and in the technology embodied in or reflected by the foregoing (in each case including any extensions, derivatives, translations, reformulations or developments of the foregoing) (collectively, “Schemata Technology”). Subject only to Section 2.1 above, Schemata shall own all rights to (i) any data input into the Services by or on behalf of Schemata (excluding Customer Data), and (ii) any non-personal, aggregated and anonymized data extracted or derived from the use of the Service, including all such aggregated and anonymized usage or statistical data, statistical data (collectively, “Schemata Data”)
    3. Feedback. If Customer provides any feedback to Schemata concerning the functionality, characteristics, or performance of a Product (including identifying potential errors and improvements), Customer hereby assigns to Schemata all right, title, and interest in and to the feedback, and Schemata is free to use the feedback without payment or restriction

  3. Fees & Payment Terms.

    1. Unless otherwise specified in the applicable SOW, Customer shall pay all compensation due without offset or deduction to Schemata within 30 days of the date of Schemata’s submission to Customer. Customer shall remit payment via electronic funds transfer, or other reasonable method determined by Client to the account designated in the SOW
    2. Schemata reserves the right to assess a 1.5% interest charge per month or the highest rate permissible under applicable law, on all past due balances. Customer shall reimburse Schemata for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. If any invoice is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any other rights and remedies (including the termination rights set forth in the Agreement), Schemata reserves the right immediately upon written notice to Customer, to suspend access to and provision of any unpaid Services until such account is paid in full without liability to Schemata
    3. The fees payable under the Agreement shall not include local, state, federal or foreign sales, use, value-added, excise or personal property or other similar taxes or duties now in force or enacted in the future imposed on the transaction and/or the delivery of the Services, all of which Customer shall be responsible for and pay in full except those taxes based on the net income of Vendor. If Customer is exempt from the payment of any such taxes, upon execution of the Agreement, Customer shall provide Vendor with a valid tax exemption certificate authorized by the appropriate taxing authority. In the event Customer is required to withhold taxes from any amounts due hereunder, Client shall remit such taxes directly to the appropriate government authority and provide evidence of payment of same to Vendor

  4. Service Use and Guidelines

    1. Customer Responsibilities. Customer shall (a) be responsible for its and its Authorized Users compliance with this Agreement, Documentation and SOWs and all activity occurring under its Authorized User’s accounts, as applicable, (b) be responsible for the accuracy, quality and legality of Authorized User Data and Customer Content, the means by which Customer acquires Authorized User Data and Customer Content, and Customer’s use of Authorized User Data with the Services, (c) be responsible for the interoperation of any Non-Schemata Services Customer uses with the Services and compliance with terms of service of any Non-Schemata Services Customer uses with the Services, (d) use commercially reasonable efforts to prevent access to or use of the SaaS Services other than Authorized Users, and notify Schemata promptly of any such unauthorized access or use, (e) comply with any applicable third party terms and conditions, as applicable, to the environment in or equipment on which the Services will be deployed, and (f) comply with and use Services in accordance with applicable laws and government regulations (including without limitation applicable privacy and data protection laws)
    2. Use Restrictions. Except as otherwise permitted herein, Customer shall not, and shall not attempt to (and shall not authorize or allow any third party to or attempt to): (a) reverse engineer or otherwise derive the source code of the Service or software or otherwise modify, reverse compile, disassemble, or translate the Services, or software or create any derivative works thereof; (b) use the Service on behalf of any third party or for any purpose other than as described in this Agreement; (c) sell, lease, license, sublicense, distribute or otherwise transfer in whole or in part the Service or use it as a service bureau; (d) use the Services 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; (e) access, use, study or benchmark the Service (in whole or in part) to create, assist in the creation of, or encourage, or promote any similar or competing products, services or features, in whole or in part; or (f) remove, alter or obscure any copyright notices, contained in the software or on any copies made in accordance with this Agreement
    3. Suspension. Should Customer use the Services in breach of Sections 4.2 or 4.3, Schemata shall notify the Customer in writing and provide Customer five (5) days to remedy such breach. If Customer fails to remedy such breach within such five (5) day period, Schemata may, in its sole discretion, immediately suspend the Services on notice to Customer until such time as the breach has been remedies or terminate this Agreement for material breach

  5. Term & Termination.

    1. Term. The initial term length shall be as specified the applicable SOW; provided that if no initial term length is specified in any SOW then the initial term shall be one year (“Initial Term”). After such initial term, this Agreement shall automatically renew for successive one-year renewal terms (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless either party opts out by giving written notice to the other party at least 30 days prior to the end of the then current term
    2. Termination. Either Party may terminate an SOW by written notice if the other party commits a material breach and fails to cure such breach within thirty (30) days following receipt of written notice of such breach. Either party may terminate an SOW by written notice if the other party is judged bankrupt or insolvent, makes a general assignment for the benefit of its creditors, a trustee or receiver is appointed for such party; or any petition by or on behalf of such party is filed under any bankruptcy or similar laws
    3. Effect of Termination. Upon any termination of this Agreement or all SOWs then in force, except as otherwise set forth herein, (a) Customer shall promptly: (i) discontinue all use of the Service and Documentation; (ii) erase or destroy any electronic copies or partial copies of the Documentation, and return to Schemata or destroy any tangible copies or partial copies of the Documentation, in its possession or control; (c) Schemata shall disengage Customer’s access to the Service, and (d) both parties shall promptly return to the other or destroy the other party’s Confidential Information
    4. Migration. Within 30 days of termination or expiration of this Agreement, Schemata will, on customer’s request, use commercially reasonable efforts to export and return copies of all Customer Data stored in the Services and provide commercially reasonable assistance to help facilitate an orderly transition of data and services to Customer

  6. Warranty. Each Party represents and warrants to the other that: (a) it is duly organized and in good standing under the laws of its state or province of incorporation or organization and is duly qualified to do business in the applicable jurisdiction; and (b) it has all the necessary power and authority to make, execute, deliver, and perform under this Agreement. Customer hereby represents and warrants that it has all right and title to grant Schemata the license to use the Customer Data as provided herein. Schemata represents and warrants to that, during the Term, (i) the Service shall operate in material conformity with the specifications set forth in the applicable SOW; and (ii) the Professional Services, if any, and any maintenance and support, will be performed in a professional and workmanlike manner by duly qualified personnel in accordance with the requirements of this Agreement. Customer is solely responsible for maintaining its own connectivity and connection to the Service via any necessary hardware, software, telecommunications and internet connections, at its own cost and expense, and Schemata is not responsible for any interruptions thereto. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SCHEMATA SERVICES, SCHEMATA TECHNOLOGY, AND PROFESSIONAL SERVICES ARE PROVIDED ON AN “AS IS” BASIS; AND SCHEMATA AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY WARRANTIES OF REGULATORY COMPLIANCE, PERFORMANCE, ACCURACY, RELIABILITY, NON-INFRINGEMENT, OR THAT THE USE OF THE SCHEMATA SERVICES, SCHEMATA TECHNOLOGY, OR PROFESISONAL SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED, ERROR- OR DEFECT-FREE, OR THAT ERRORS OR DEFECTS WILL BE CORRECTED.

  7. Indemnification. Schemata shall indemnify, defend, and hold harmless Customer from and against any and all claims, penalties, losses, liabilities, judgments, settlements, awards, damages, costs and expenses arising from any third party claim that any products, services, software or materials provided by or on behalf of Schemata or its agents, infringes any patent, copyright, trademark or other United States intellectual property right of a third party, except to the extent the Services were used in combination with third party equipment or intellectual property not supplied or recommended by or on behalf of Schemata; in each case, solely if and to the extent the Software would not be infringing absent such modification or combination. Conversely, Customer shall indemnify, defend, and hold harmless Schemata from and against any and all claims, penalties, losses, liabilities, judgments, settlements, awards, damages, costs and expenses arising from any third party claim that any Customer Data or materials provided by or on behalf of Customer or its agents, infringes any patent, copyright, trademark, or other United States intellectual property right of a third party.

  8. Limitation of Liability.

    1. Customer acknowledges and agrees that Schemata is not a subject matter expert in Customer’s industry, and that Schemata is relying solely on the accuracy of the Customer Data in the provision of the Services under this Agreement. Customer further acknowledges and agrees that it is solely responsible for its use and application of the Services in its working environment, as authorized herein, assumes all risks of such use and application, and acknowledges and agrees that: Customer shall be solely liable in the event of any death, disability, personal injury, or damage to or loss of property resulting from its use or misuse thereof; Schemata shall in no way be liable under contract, tort, or any theory of law or equity for such losses; and Customer will indemnify, defend, and hold harmless Schemata accordingly. The foregoing indemnity shall not apply in the event of any willful misconduct, gross negligence, or fraud by Schemata.
    2. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY, BASED ON ANY THEORY OF LAW, EQUITY, TORT, CONTRACT OR OTHERWISE, FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, LOSS OF DATA, OR COSTS OF COVER, IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; AND (B) SCHEMATA’S TOTAL LIABILITY UNDER THIS AGREEMENT OF ANY KIND, WITH ALL CLAIMS, DAMAGES AND LIABILITIES AGGREGATED, AND BASED ON ANY THEORY OF LAW, EQUITY, TORT, CONTRACT OR OTHERWISE, INCLUDING INDEMNIFICATION, SHALL NOT EXCEED THE TOTAL AMOUNT OF THE SERVICE AND LICENSE FEES PAID BY CUSTOMER DURING THE 12 MONTHS PRECEDING THE CLAIM UNDER THE APPLICABLE SOW.

  9. Confidentiality.

    1. Confidential Information. Each Party acknowledges that by reason of the relationship created between the Parties by this Agreement, it may have access to certain non-public information of substantial value concerning the other party’s business, operations, strategic plans, customers, suppliers, technology, competition and employees, and any other information which a reasonable person would or should understand to be confidential or proprietary (“Confidential Information”), which value would be impaired if such Confidential Information were disclosed to third parties or used other than for purposes expressly authorized hereunder. Without limiting the foregoing, but for avoidance of doubt, the terms of this Agreement, will be considered Confidential Information of both Schemata, and Customer Data will be considered Confidential Information of Customer. Accordingly, each party agrees (a) to maintain all Confidential Information received from the other, in whatever form disclosed, in strict confidence, applying no less than a reasonable duty of care, (b) not to disclose or otherwise make available such Confidential Information to any third party without the prior written consent of the disclosing Party, and (c) not to use the Confidential Information of the other Party except as required in the performance of its obligations or the exercise of its rights hereunder. The foregoing obligations shall not apply to Confidential Information of a disclosing Party that, as can be reasonably demonstrated with admissible evidence by the receiving Party: (i) is or becomes a matter of public knowledge though no action or omission of the receiving Party; (ii) was rightfully in the receiving Party’s possession without restrictions on use or disclosure prior to its disclosure by the disclosing Party; (iii) is rightfully obtained by the receiving Party without an obligation of confidentiality from a third party who has no obligation of confidentiality, direct or indirect, to the disclosing Party; (iv) is independently developed by the receiving Party without reference to the disclosing Party’s Confidential Information; or (v) is required to be disclosed by a court or other authorized tribunal, and then only to the extent of such requirement and only after given prompt notice of the requirement to the disclosing Party.
    2. Return of Confidential Information. Upon the written request of the disclosing Party, the receiving Party shall (a) immediately return to the disclosing Party or destroy all copies and partial copies of the Confidential Information, whether maintained in tangible, electronic or other form except as required to be maintained by law, regulation or internal compliance policy (including automatic data archiving and backup procedures), and (b) provide the disclosing Party with written certification of its compliance with the terms of this Section.
    3. Remedies. Each Party acknowledges that any breach of any of its obligations with respect to the other Party’s Confidential Information may cause or threaten irreparable harm to such party. Accordingly, each party agrees that in such event, the aggrieved Party shall be entitled to seek equitable relief in any court of competent jurisdiction without the necessity of posting bond and in addition to such other remedies as may be available to the aggrieved party under law or in equity.

  10. Dispute Resolution.

    1. Informal Resolution. The Parties will use good-faith efforts to resolve any issue, claim, dispute, or controversy arising out of or relating to this Agreement (each a “Dispute”) informally using the procedures in this subsection. All negotiations pursuant to this subsection are confidential and will be treated as compromise and settlement negotiations for purposes of any applicable evidentiary rules. The Parties further agree that all offers, promises, conduct, and statements, whether oral or written, made in the course of the informal resolution by any of the Parties, their agents, employees, experts, and attorneys, are confidential, privileged, and inadmissible for any purpose, including impeachment, in any arbitration, or other proceeding involving the Parties and the Dispute. If the Parties are unable to resolve the Dispute within 30 days of the initial notice, each Party shall be free to pursue any remedy it shall have in arbitration; provided, however, that a Party may promptly submit a claim to arbitration if such claim would be barred by the applicable statute of limitations.
    2. Arbitration. Except as may be otherwise provided in this Agreement, Customer and Schemata agree that any Dispute arising out of or relating to this Agreement or the breach thereof shall be submitted to neutral and binding arbitration and shall be conducted in accordance with the Arbitration Rules of the American Arbitration Association (“AAA”). The Party demanding arbitration shall be responsible for initiating the arbitration process in accordance with the then current rules of the AAA. In no event shall either Party’s demand for arbitration be made after the date when institution of legal or equitable proceedings based on such would be barred by the applicable statute of limitations. The arbitrator(s) shall be bound by any limitations of liability as set forth in this Agreement and, except as may be otherwise provided in this Agreement, shall in no event award either Party any amount representing incidental, indirect, special, consequential or punitive damages. Any award properly made hereunder may be entered in any court having competent jurisdiction. Arbitration must be on an individual basis. This means neither Party may join or consolidate claims in arbitration by or against others or litigate in court or arbitrate any claims as a representative or member of a class. The location of the Arbitration shall be San Francisco, California.

  11. General.

    1. Notices. All notices required to be given under this Agreement shall be in writing and shall be deemed to be received when delivered, if personally delivered or sent by overnight courier, by email with delivery confirmation, or three (3) days after deposit in the U.S. mail, registered, return receipt requested, if addressed to the Schemata address as set forth on the first page of this Agreement, as may be updated from time to time. A Party may change its notice address by written notice to the other Party. Email notice to Schemata shall be sent to: contracts@schemata.com. Notice to Customer shall be sent to the contact information identified in the applicable SOW
    2. Assignment. Neither Party may assign or delegate its rights, duties or obligations under this Agreement without the prior written consent of the other Party and such consent must not be unreasonably withheld or delayed; provided, however, that Schemata may assign this Agreement without consent to any Party which acquires all or substantially all of Schemata’s assets, stock or business as a result of a merger, acquisition or change of control. Any assignment or attempted assignment not in accordance with this Section 11.2 is null and void
    3. Publicity. Schemata may use Customer’s name, trademark, service mark, trade name, or logo in connection with general publicity and marketing materials or to provide the Service. Any other use shall require the prior written approval of Customer, such consent not to be withheld unreasonably
    4. Waiver. A delay or failure in enforcing any right or remedy afforded hereunder or by law shall not prejudice or operate to waive that right or remedy or any other right or remedy for a future breach of this Agreement, whether of a like or different character
    5. Force Majeure. Neither Party shall be considered in breach of this Agreement for its failure to perform or its delay in the performance of any obligation hereunder if the performance of such obligation is prevented or delayed by fire, flood, explosion, strike, war, insurrection, pandemics, epidemics, communicable diseases, embargo, governmental actions or requirements, military authority, act of God, or any other event beyond the reasonable control of that Party. Schemata and Customer agree to take reasonable actions to minimize the effects of any such event or circumstances and use its commercially reasonable efforts to restore performance as soon as commercially practicable following the cessation of such event
    6. Independent Contractors. The relationship of Schemata and Customer established by this Agreement is that of independent contractors, and nothing contained in the Agreement will be construed to constitute the parties as partners, joint venturers, co-owners, or otherwise as participants in a joint undertaking
    7. Non-Solicitation. During the term of this Agreement and for the twelve (12) months following the termination of this Agreement (the “Non-Solicitation Period”), neither Party will (directly or indirectly) solicit the other Party’s employees or personnel who are currently employed or engaged by the other Party or who were employed or engaged by the other Party within the six (6) months prior to solicitation (herein “Protected Personnel”) for employment or engagement as an employee, consultant, or independent contractor. However, it shall not be deemed a violation of this section for either Party to solicit the other Party’s Protected Personnel if (1) the initial solicitation to which the Protected Personnel responds is a general advertisement not specifically targeted at the other Party or Protected Personnel, such as a newspaper or web site job listing or (2) the Protected Personnel contacts the hiring Party on his or her own initiative, was in discussion with the hiring Party regarding possible employment prior to the signing of this Agreement, or is referred to the hiring Party by search firms, employment agencies, or other similar entities, provided that such entities have not been specifically instructed by the hiring Party to target the other Party or Protected Personnel
    8. Governing Law and Jurisdiction. This Agreement shall be interpreted and construed under the laws of the State of California, excluding its conflicts of laws and choice-of-law provisions. In the event a judicial proceeding is necessary, the sole forum for resolving disputes arising under or relating to this Agreement are the state and federal courts located in the State of California, San Francisco County, and the Parties hereby consent to the jurisdiction of such courts. Such consent shall be binding and inure to the benefit of the permitted assigns of the Parties. Each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby
    9. Entire Agreement. This Agreement and any Exhibits, Schedules, SOWs, or purchase orders executed hereunder sets forth the entire agreement between the Parties and supersedes all contracts, proposals or agreements, whether oral or in writing, and all negotiations, discussions and conversations, between the Parties with respect to the subject matter contained in this Agreement
    10. Severability. If any term of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, then: (a) such provision will be interpreted, construed or reformed to the extent reasonably required to render the same valid, enforceable and consistent with the original intent underlying such provision; (b) such provision will remain in effect to the extent it is not invalid or unenforceable; and (c) the remainder of this Agreement shall remain in full force and effect and shall in no way be invalidated
    11. Survival. The following terms shall survive expiration or termination of this Agreement: Any payment obligations accrued during the Term to the extent remaining unpaid thereafter, provisions providing for indemnity and limitations on liability, and those terms which by their nature were intended to survive any termination of this Agreement shall so survive including Section 2 and Sections 5 - 11
    12. Headings. The headings used in this Agreement are intended for convenience only and shall not affect the construction or interpretation of this Agreement
    13. Parties Advised by Counsel. This Agreement has been negotiated between unrelated Parties who are sophisticated and knowledgeable in the matters contained in this Agreement and who have acted in their own self-interest. The Parties are sophisticated and were represented by counsel during the negotiation of this Agreement. As a result, the Parties agree the presumption of any laws or rules relating to the interpretation of contracts against the drafter thereof should not apply, and hereby waive any such presumption. In no event will any ambiguity in this Agreement be construed against the drafter hereof
    14. Third-Party Beneficiary Rights. This Agreement does not create any third-Party beneficiary rights in any Party and this Agreement is not deemed to create any such rights
Schemata

650 California St
San Francisco CA

info@schemata.com

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Terms and Conditions