Master Services Agreement

MASTER SERVICES AGREEMENT

This Master Services Agreement (the “Agreement”) is entered into and made effective as of the Effective Date, by and between Client and SJ MedConnect, Inc. dba Thalamus (“Thalamus”) a Delaware corporation having its principal office located at 548 Market St, PMB 15342, San Francisco, CA 94104-5401.

In consideration of the mutual covenants and agreements herein contained, and in return for good and valuable consideration, the receipt and adequacy of which is hereby specifically acknowledged, the parties hereby agree as follows:

1. DEFINITIONS

            Capitalized terms used in this Agreement have the meanings set forth in this Section 1 or as otherwise defined elsewhere in this Agreement.

      1.1           General Definitions

            1.1.1      “Client” means the organizational customer that signs an Order Form with Thalamus.

            1.1.2      "Client Data" means data provided by Client to Thalamus to enable the provision of the Services, including certain Inputs, but shall not include Aggregate Outputs or Platform Data.

            1.1.3      “Confidential Information” means and includes (a) this Agreement; (b) Personal Information as defined herein; and (c) all information that may be conveyed verbally, graphically, electronically or any other form, including, but not limited to Thalamus's or Client's product plans, data, designs, costs, product prices and names, finances, marketing plans, business opportunities, customers, personnel, research, development, know-how or any information that reasonably may be considered confidential, the use and disclosure of which is specifically regulated or could be used to facilitate or perpetrate fraud or other similar acts.

            1.1.4      “Deliverable” means any report or item required to be delivered to Client pursuant to an applicable Statement of Work.

            1.1.5      “Documentation" with respect to any Product, means any documentation for or relating to such Product, including Specifications, paperwork, development, diagnostic, support, user, training, and other information related to the use or support of any Product.

            1.1.6      “Effective Date” means the effective date specified in Client’s first executed Order Form.

            1.1.7      “Implementation" means the activities contemplated by the Implementation Plan to bring into service the Products in the manner contemplated by the parties and this Agreement.

            1.1.8      “Implementation Plan” means the plan for Implementation of the Products described in the Order Form.  Such Implementation Plan shall be detailed in the Order Form and shall address the requirements outlined in Section 4 of the Agreement.

            1.1.9      “Intellectual Property Rights" means all intellectual property and proprietary rights anywhere in the world, whether statutory, common law, or otherwise, including, without limitation, patents (including patent applications and disclosures), copyrights, trademarks, and service marks (whether registered or unregistered), logos and devices, trade secrets, know-how, moral rights, and database rights, and all goodwill relating to the foregoing.

            1.1.10   “Order Form” means a mutually executed quote, order form, statement of work, or other document that refers to this Agreement and that specifies the Products and Services to be provided by Thalamus to Client.  Each Order Form shall be made a part of and shall be governed by this Agreement, except to the extent explicitly set forth otherwise in the Order Form.

            1.1.11   “Personal Information" means and includes any information that reasonably may be considered personal to an individual, the use and disclosure of which is specifically regulated or could be used to facilitate or perpetrate identity theft, fraud or other similar acts.

            1.1.12   "Platform Data" means all data received by Thalamus from any source other than Client in whatever form or format. For the avoidance of doubt, Platform Data is not Client Data and is not sourced from or controlled by Client. Thalamus's rights with respect to Platform Data are independent of and not limited or expanded by any license grant in this Agreement, and nothing in this Agreement limits Thalamus's rights with respect to data it receives from any source other than Client.

            1.1.13   “Products" mean Thalamus's software application products in object code form, including any error corrections and Updates (defined hereinafter) to Products provided by Thalamus under this Agreement, as well as any Documentation or other materials related to such software application products necessary or helpful in the use of same (including any hardware components delivered by Thalamus to Client to enable use of the Services).  The Products shall include the specific software and hardware products as designated in an Order Form or Statement of Work executed by the parties.

            1.1.14   "Service Offerings" means, collectively, the Services, Thalamus Network, Deliverables, Outputs, AI System, and Products.

            1.1.15   “Services” means the work to be performed by Thalamus, and Thalamus's customization, configuration, maintenance, support, implementation, testing, training, providing Documentation, operation, hosting, and other obligations necessary for the Products to operate properly as provided in this Agreement and any Order Form or Statement of Work executed by the parties.

            1.1.16   “Specifications" means the operational, technical, and other requirements applicable to the Products and Services as set forth in the Order Form, Statement of Work, or Documentation including, without limitation, any specifications or requirements related to the interoperability of the Products, Services and Thalamus Network, and Client's other systems, infrastructure, software and technology.

            1.1.17   “Statement of Work" or "SOW" means a mutually executed document describing customized development services, Deliverables, and associated terms for bespoke work to be performed by Thalamus for Client.  Each SOW shall be made a part of and shall be governed by this Agreement, except to the extent explicitly agreed to otherwise in the SOW.

            1.1.18   “Thalamus Network” means Thalamus's network server(s) and data center, or that of a third party under lease or license to Thalamus, through or by which Client may access or otherwise utilize the Products and Services.

      1.2           AI-Related Definitions

            1.2.1      "AI Features" means any portion of the Service Offerings that utilizes artificial intelligence technology, including, without limitation, the AI System.

            1.2.2      “AI System” means Thalamus’s technological system, provisioned through a combination of the Service Offerings (defined above) and third-party products and services, which may be incorporated into the Products and Services that Client accesses and uses as specified in an Order Form, and which, autonomously or partly autonomously, processes data through the use of a genetic algorithm, a neural network, machine learning, large language models, or other techniques in order to generate content, recommendations, or predictions-including all computer software (and all modifications, updates, and upgrades thereto); physical hardware; and associated Documentation and Specifications.

            1.2.3      "Client Outputs" means Outputs generated directly and specifically from a particular Client's use of the Service Offerings, including without limitation Outputs generated by the AI System in response to such Client's Inputs.

            1.2.4      "Aggregate Outputs" means Outputs that are anonymized and aggregated across multiple Clients, or that are generated independently of any specific Client's use of the Service Offerings, including without limitation normalized scoring models, pooled benchmarking data, and system-level analytics, whether generated by the AI System or otherwise.

            1.2.6      "Inputs" means all information, data, materials, work, and other content that Client uploads, submits, posts, transfers, transmits, or otherwise provides to or through the Service Offerings, including, but not limited to, Client Data, but excluding Platform Data.

            1.2.5      "Outputs" means all information, data, product, content, and results generated by or through the Service Offerings, including by the AI System.

2. SCOPE OF SERVICES AND PRODUCTS

      2.1           Services and Products.  Thalamus shall provide the Services and Deliverables that are set forth in the Order Form.  All such Services and Products shall conform to the Specifications set forth in the Order Form.  In the event of any inconsistency between terms and conditions of any Exhibit, Order Form, or Order Form Schedule and those in this Agreement, this Agreement shall control, unless an Exhibit, Order Form, or Order Form Schedule specifically states otherwise.

      2.2           Custom Work.  The parties may, in their sole discretion, agree for Thalamus to perform customized development services or other bespoke work outside the scope of any Order Form.  Any such custom work shall be described in, and governed by, a mutually executed Statement of Work.  For the avoidance of doubt, no custom work shall be deemed authorized or binding on Thalamus unless and until a Statement of Work covering such work has been executed by authorized representatives of both parties.

      2.3           Additional Order Forms.  In the event Client requires additional Products or Services not set forth in an Order Form, the parties may enter into another Order Form.  Any such Order Form shall be completed and signed by both parties and shall reference and be subject to the terms and conditions of this Agreement.  Thalamus shall perform the additional or modified Services and provide the additional or modified Products, and Client shall pay the amounts, if any, set forth in such Order Form for any such additional or modified Services or Products described therein.

      2.4           Client Obligations.

                      2.4.1        Client shall provide Thalamus with all such cooperation and assistance as Thalamus may reasonably request, or otherwise may reasonably be required, to enable Thalamus to perform its obligations (including the provision of the Services and Products), and exercise its rights, under and in accordance with the terms and conditions of this Agreement, including:

                                 (a)           reasonable access to the Client’s premises, systems, networks, and facilities;

                                 (b)           reasonable access to the appropriate Client personnel, including network, systems, operations, and applications personnel; and

                                 (c)            all necessary authorizations and consents, whether from third parties or otherwise, in connection with any of the foregoing.

                      2.4.2        Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services and Products (collectively, “Equipment”).  Client shall also be responsible for maintaining the security of the Equipment, Client account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Client account or the Equipment with or without Client’s knowledge or consent.

                      2.4.3        Thalamus does not independently verify the accuracy, completeness, or currency of Platform Data and is not responsible for any errors, omissions, or inaccuracies in such data as received.

                      2.4.4        As between the parties, Client is solely responsible for its own use of, and for any decision it makes or declines to make in reliance on, any Outputs, Deliverables, or other results of the Service Offerings.

      2.5           Research Previews.

                      2.5.1        From time-to-time Thalamus may invite Client to try Services that are not yet generally available or are otherwise in an early or prerelease state (“Research Previews”). The primary purpose of Research Previews is to allow both parties to evaluate and provide feedback on emerging features and functionality. Client may accept or decline any such opportunity in Client’s sole discretion. Any Research Previews will be clearly designated as “research preview," “pilot,” “limited release,” “early access,” “developer preview,” “non-production,” or by a description of similar import. Client acknowledges that Research Previews represent features in active development that may not yet reflect full production functionality, may contain bugs or errors, and may be subject to additional terms made known to Client at the time of Client’s access.

                      2.5.2        NOTWITHSTANDING ANYTHING TO THE CONTRARY, RESEARCH PREVIEWS ARE PROVIDED WITHOUT WARRANTY, AND THALAMUS HEREBY DISCLAIMS ALL EXPRESS AND IMPLIED WARRANTIES WITH RESPECT TO RESEARCH PREVIEWS, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. BECAUSE RESEARCH PREVIEWS REPRESENT FEATURES UNDER ACTIVE DEVELOPMENT, THALAMUS DOES NOT REPRESENT OR WARRANT THAT RESEARCH PREVIEWS WILL PERFORM IN ACCORDANCE WITH ANY DOCUMENTATION OR SERVICE MATERIALS.

                      2.5.3        NOTWITHSTANDING ANYTHING TO THE CONTRARY, THALAMUS WILL HAVE NO LIABILITY AND HEREBY DISCLAIMS ALL LIABILITY TO CLIENT FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH CLIENT’S ACCESS TO OR USE OF THE RESEARCH PREVIEWS, INCLUDING, WITHOUT LIMITATION, ALL COMPENSATORY, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, RELIANCE, EMOTIONAL, PERSONAL INJURY, PROPERTY, OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, STATUTE, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), AS WELL AS ANY AND ALL INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT.

                      2.5.4        Thalamus may discontinue Research Previews at any time in its sole discretion and may never make them generally available.

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3. LICENSE

      3.1           Grant of License.  Subject to the terms and conditions of this Agreement, and in consideration for the payment of fees pursuant to Section 7 of this Agreement, Thalamus hereby grants to Client a nonexclusive, nontransferable, non-sublicensable right and license to access and use the Products and the Thalamus Network, as well as any software, hardware, interfaces and other Deliverables created for or provided to Client in connection with the provision of the Services, as reasonably needed for Client’s administration of its processes and systems supported by the Products, subject to the limitations set forth below.

      3.2           License Restrictions.  Client has no right to assign, transfer, sublicense, or otherwise distribute the Deliverables or Products to any third party other than as permitted in this Agreement.  Client may not, nor allow any third party to: (a) modify, disassemble, decompile or reverse engineer the Service Offerings; (b) copy the Service Offerings; (c) use information from any of the Service Offerings to build a competing service or product in competition with the Service Offerings (which shall include any product or service with similar functionality to the Service Offerings, regardless of whether offered to third parties by Client); (d) provide access to or information from any of the Service Offerings to a third party that resells or provides data or services in competition with Thalamus; (e) provide access of any kind to any or all of the Service Offerings; or (f) intentionally violate any applicable local, state, national or international law.  

      3.3           Limited Rights.  Client’s rights in the Thalamus Network and Products will be limited to those expressly granted in this Section 3 and shall terminate automatically upon the termination of this Agreement for any reason.  Except as expressly granted in this Agreement, neither party shall have any other rights of any kind in the other’s intellectual property, Intellectual Property Rights, proprietary technology, websites, products, or other proprietary materials.  Under no circumstances will anything in this Agreement be construed as granting, by implication, estoppel, or otherwise, a license to any party’s intellectual property, Intellectual Property Rights, or proprietary technology other than in strict accordance with the terms of this Agreement.  Each party reserves all rights not expressly granted to the other under this Agreement.

4. IMPLEMENTATION SERVICES

      4.1           Beginning on the Effective Date of this Agreement, Thalamus will perform the functions, Services, and activities necessary for Thalamus to initiate, carry out and complete the Implementation as set forth in the Implementation Plan.  Each party shall bear their respective costs required to effect the Implementation.  The Implementation Plan describes Thalamus’s activities associated with the Implementation of the Products, the enablement of functionality therein consistent with the Specifications, and the steps necessary to commence the delivery of the Services by Thalamus on or before the Effective Date.

      4.2           Thalamus shall, upon Client’s request, reasonably train Client’s personnel in the use of the Products and Services.  Such training shall be conducted at a site and at times agreed upon by the parties.

5. MAINTENANCE AND SUPPORT SERVICES

      5.1           Maintenance and Support.  Support and maintenance of the Products (“Maintenance and Support Services”) shall be provided by Thalamus as set forth in the applicable Order Form, and such Maintenance and Support Services shall continue until such time as this Agreement expires or there is a termination under Section 12 of the Agreement.

      5.2           Updates.  As a part of Thalamus’s Maintenance and Support Services, from time-to-time Thalamus may develop, implement, and maintain updates, enhancements, improvements, fixes or solutions to problems or bugs in the Services, Thalamus Network, and/or Products (“Updates”).  Thalamus shall employ commercially reasonable efforts to make it such that Updates shall not degrade the functionality, capabilities, or features of the Products, Thalamus Network, and Services and shall be backward compatible with the data structures, databases, and system architecture employed with previous versions of the Services licensed to Client by Thalamus.

      5.3           Planned Maintenance.  Thalamus will, to the extent practicable, give Client advance notice prior to initiating a planned maintenance operation, and such notice shall indicate the estimated timing of such planned maintenance operation. Thalamus will use commercially reasonable efforts to conduct planned maintenance outages, if any, of the Thalamus Network during non-business hours.

6. OWNERSHIP/INTELLECTUAL PROPERTY RIGHTS

      6.1           Ownership.  Client will take reasonable care to not delete or in any manner alter the copyright, trademark, and other proprietary rights notices, if any, of Thalamus and its licensors appearing on the Thalamus Network or Products.  Any and all pre-existing intellectual property (and Intellectual Property Rights therein) will remain as the sole and exclusive property of the contributing party and the other party shall not obtain any ownership rights in the other party’s pre-existing intellectual property.

      6.2           Intellectual Property Rights. 

                (a)            Mutual.  All right, title, and interest, including all Intellectual Property Rights, in all of either party’s Confidential Information, inventions, discoveries, processes, and proprietary information embodied therein or related thereto shall be owned exclusively by such party and/or its licensors. 

                (b)           By Thalamus.  As between Client and Thalamus, Thalamus shall own and retain all right, title and interest in and to all of Thalamus’s Confidential Information and the Service Offerings (including, but not limited to, all know-how, methods, processes, and other inventions, works, technologies, materials, documentation, programs, reports, specifications, and software created by Thalamus in connection with the Service Offerings, and all Aggregate Outputs); provided, however, that Thalamus's ownership of the Service Offerings shall not extend to Client Outputs, which are owned by Client as set forth in Section 6.2(c).  As between Client and Thalamus, Thalamus shall also own all Platform Data.  As owner of all Aggregate Outputs, Thalamus may use, license, sublicense, commercialize, and otherwise exploit Aggregate Outputs for any purpose without restriction.

                (c)            By Client.  As between Client and Thalamus, Client will own all of Client’s Confidential Information, Client Data, and Client Outputs.  Client hereby grants to Thalamus a non-exclusive, royalty-free, fully sublicensable (through multiple levels of sublicensees), irrevocable, perpetual license to use Client Outputs for the Authorized Uses set forth in Section 6.2(d).

                (d)           Authorized Uses.  Notwithstanding anything in this Agreement to the contrary, unless expressly set forth otherwise in an Order Form for a specific Service, Client hereby grants to Thalamus a non-exclusive, royalty-free, fully sublicensable (through multiple levels of sublicensees), irrevocable, perpetual right and license, to use Client Data, Inputs, and Client Outputs for the following purposes: (i) to provide the Services as described in this Agreement; (ii) improve and enhance Thalamus services and products (including the development of new or related products and services, such as AI Features), (iii) to maintain the integrity of the Service, (iv) for customer service or billing purposes, (v) to conduct research (including, but not limited to, Research as defined below), (vi) any other purposes to which Client separately consents in writing, and (vii) provided that such information or data is aggregated and anonymized in a manner that appropriately masks and disguises Client’s Confidential Information, for other legitimate developmental, diagnostic, or business purposes (each an “Authorized Use”). For the sake of clarity, clause (ii) of the description of “Authorized Use” includes that Thalamus shall have the right to use Client Data, Inputs, and Client Outputs to train AI Systems in the course of improving the Service Offerings (including, but not limited to, any AI Features) and in the development of new or related products and services. When Client Data, Inputs, and Client Outputs are used to improve Thalamus’s AI Systems in this way, Thalamus will ensure such data and information, including any Personal Information contained therein, is not reproduced in an identifiable manner to another user of the Services or Thalamus customer, and Thalamus will take necessary steps to prevent this, which steps may include, but are not limited to, applying data sanitation algorithms to training data. Thalamus may contract with third parties to support or conduct Authorized Uses, provided that either (a) Client Data, Inputs, and Client Outputs are de-identified and aggregated prior to any third-party Authorized Uses; or (b) the third party has executed a contract that requires the third party to maintain confidentiality of Client Data, Inputs, and Client Outputs under terms no less stringent than this Agreement.

                (e)            Usage Data. Thalamus will have the right to collect and analyze data and other information relating to the provision, access, use, and performance of the Service Offerings and related technologies (“Usage Data”), and Thalamus will be free during and after the term of this Agreement to use Usage Data for any other legitimate business purposes, (including, but not limited to, the Authorized Uses). For clarity, Usage Data excludes Client Data itself, which usage is governed under Section 6.2(d) above.

                (f)            Feedback. Client may, in its sole discretion or at the invitation by Thalamus, provide Thalamus with suggestions, enhancement requests, comments, recommendations, or other feedback related to Service Offerings (“Feedback”). By submitting any Feedback, Client agrees that Client’s disclosures thereof are gratuitous and without restriction and will not place Thalamus under any fiduciary or other obligation, and Thalamus is free to use such Feedback for any purpose without limitation and without any additional compensation to Client, and/or Thalamus is free to disclose such Feedback on a non-confidential basis or otherwise to anyone.

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7. FEES

      7.1           License and Services Fees.  In consideration for the licenses and Services provided hereunder, Client will pay Thalamus the fees as set forth in an Order Form or Statement of Work executed by the parties within the time period specified therein. 

      7.2           Travel and Incidental Expenses.  Client will reimburse Thalamus for all reasonable travel and incidental expenses incurred by Thalamus in connection with performing any Services hereunder, within thirty (30) days after the date of receipt of Thalamus’s invoice for such expenses.  Thalamus will furnish documentation of such expenses through written invoices. 

      7.3           Payment Terms.  Thalamus will bill through invoices, and full payment must be received by Thalamus 30 days after the mailing date of the invoice.  Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in termination of Services.

8. REPRESENTATIONS, WARRANTIES AND COVENANTS

      8.1           Thalamus represents, warrants and covenants that as of the Effective Date and during the Term of this Agreement, and subject to the Warranty Exclusions and exclusive remedy set forth below:

                (a)        the Services will be performed, and the Thalamus Network and Products will function, in substantial conformance with this Agreement, any applicable Order Forms and Statements of Work, and the Specifications in all material respects; and

                (b)       Thalamus shall perform all Services hereunder in a good and workmanlike manner and provide qualified personnel to perform the Services.

                Warranty Exclusions; Exclusive Remedy.  The warranties set forth in Section 8.1 do not apply to, and Thalamus shall have no liability for, any non-conformance, downtime, interruption, delay, error, or other issue arising out of or relating to: (a) scheduled, planned, or emergency maintenance; (b) any third-party services, software, hardware, networks, data centers, hosting, or other infrastructure, including any third-party components of the Thalamus Network not owned by Thalamus; (c) failures or interruptions of the internet, telecommunications, or other facilities not within Thalamus's reasonable control; (d) Client's Equipment, systems, software, data, or network, or Client's failure to use the Service Offerings in accordance with this Agreement, the applicable Documentation, or the Specifications; (e) any use of the Service Offerings in combination with products, services, or materials not provided by Thalamus; (f) any misuse, unauthorized modification, or unauthorized access; or (g) Research Previews or other pre-release features.  Client's sole and exclusive remedy, and Thalamus's entire liability, for any breach of the warranties in Section 8.1 shall be, at Thalamus's option and expense, to (i) re-perform the affected Services or correct or replace the affected Products or Thalamus Network so that they conform, or (ii) if Thalamus determines that the foregoing is not commercially reasonable, terminate the affected Services and provide Client a prorated refund of any prepaid, unused fees for the affected Services.

      8.2           Each party represents, warrants and covenants that: (a) it has the full corporate right, power, and authority to enter into this Agreement and perform the obligations and duties hereunder; (b) the execution of this Agreement, and the performance of the obligations and duties hereunder, do not and will not violate any agreement to which it is a party or by which it is otherwise bound; and (c) when executed and delivered, this Agreement will constitute the legal, valid and binding obligation of each party, enforceable against each in accordance with its terms.

      8.3           Client represents, warrants, and covenants that it has all rights, consents, authorizations, and authority necessary to provide the Client Data, Inputs, and Client Outputs, and to grant the licenses and rights granted to Thalamus under this Agreement, and that Thalamus's use of the foregoing in accordance with this Agreement will not infringe, misappropriate, or otherwise violate the rights of any third party or any applicable law.

      8.4           THALAMUS’S WARRANTIES CONTAINED IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES BY THALAMUS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  EXCEPT AS EXPRESSLY SET FORTH IN ABOVE, THE SERVICES, PRODUCTS AND THALAMUS NETWORK ARE PROVIDED ON AN “AS IS” BASIS, AND THALAMUS DOES NOT GUARANTEE THE ACCURACY, COMPLETENESS, OR RELIABILITY OF ANY OUTPUT, RESULT, OR CONTENT GENERATED OR PROVIDED THROUGH THE SERVICE OFFERINGS. THALAMUS DOES NOT WARRANT THAT THE SERVICES, PRODUCTS, OR THALAMUS NETWORK WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, AND THALAMUS DISCLAIMS ALL WARRANTIES WITH RESPECT TO ANY THIRD-PARTY SERVICES, SOFTWARE, OR INFRASTRUCTURE, INCLUDING ANY THIRD-PARTY COMPONENTS OF THE THALAMUS NETWORK. FURTHERMORE, WITHOUT LIMITING THE FOREGOING WARRANTY DISCLAIMERS, AND BY WAY OF FURTHER SPECIFICATION AS TO THE AI FEATURES, THALAMUS DOES NOT GUARANTEE THE ACCURACY OF AND THALAMUS HEREBY DISCLAIMS ANY WARRANTY RELATING TO ANY OUTPUT GENERATED BY THE AI FEATURES. GIVEN THE PROBABILISTIC NATURE OF MACHINE LEARNING AND ARTIFICIAL INTELLIGENCE, USE OF THE AI FEATURES MAY IN SOME SITUATIONS RESULT IN INCORRECT OUTPUT THAT DOES NOT ACCURATELY REFLECT THE ACTION GENERATED. THEREFORE, CLIENT AGREES TO USE ANY OUTPUT FROM THE AI FEATURES AT ITS OWN RISK.

9. INDEMNIFICATION

      9.1           Indemnification by Thalamus.  Thalamus shall indemnify Client, its affiliates, officers, directors, employees, consultants, and agents, and undertakes to defend same against and hold same harmless from any claims, allegations, actions, suits, loss, damages, expenses and costs (including, but not limited to, costs and expenses, attorneys’ fees, along with any fees and costs associated with enforcing Client’s indemnity rights under this Agreement) arising out of or relating to any claim of infringement or misappropriation of a third party’s Intellectual Property Rights arising from the Services, Thalamus Network, Deliverables or Products (a “Claim”).  The foregoing obligations do not apply with respect to portions or components of the Services, Thalamus Network, Deliverables or Products (i) not supplied by Thalamus to Client, (ii) made in whole or in part in accordance with Client specifications, (iii) that are modified by Client after delivery by Thalamus, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) to the extent any infringement arises from (A) Client Data, (B) Inputs, or (C) Platform Data or any other data received by Thalamus from any source other than Client, in the case of clause (C) whether or not Thalamus has reformatted, graphed, analyzed, or otherwise processed such data; provided that the exclusion in clause (C) shall not apply to the extent the infringement arises from Thalamus's reformatting, graphing, analysis, or other processing of such data rather than from the underlying data as received by Thalamus, (vi) where Client continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, (vii) where Client’s use of the Services, Thalamus Network, Deliverables or Products is not strictly in accordance with this Agreement or any applicable Statement of Work, (viii) to the extent the alleged infringement arises from any third-party foundational model, large language model, or other third-party artificial intelligence technology incorporated into the AI Features or AI System, (ix) to the extent the alleged infringement arises from Thalamus's use of data provided by a third party where Thalamus had a contractual right to use such data but the party providing such data lacked the legal authority to grant such right, or (x) to the extent the alleged infringement or misappropriation arises from any third-party services, software, hardware, networks, data centers, hosting, or other infrastructure not owned by Thalamus, including any third-party components of the Thalamus Network not owned by Thalamus.  Each of the exclusions in clauses (i) through (x) applies independently of the others, and the limitations within any clause (including the proviso in clause (v)) shall not be construed to limit the application of any other clause.   Client shall promptly notify Thalamus in writing of any Claim, and Client's failure to provide timely notice shall relieve Thalamus of its indemnification obligations under this Section 9.1 only to the extent Thalamus is materially prejudiced by such failure.  Thalamus shall have sole control over the defense and settlement of any Claim; provided that Thalamus shall not enter into any settlement that imposes any obligation, restriction, or liability on Client, or includes any admission of wrongdoing by Client, without Client's prior written consent, not to be unreasonably withheld.  Client shall provide Thalamus with reasonable cooperation and assistance in connection with the defense of any Claim, including providing access to relevant personnel, records, and information as reasonably requested by Thalamus, at Thalamus's cost and expense.

      9.2           Indemnification by Client.  Client shall indemnify Thalamus, its affiliates, officers, directors, employees, consultants, and agents, and undertakes to defend same against and hold same harmless from any claims, allegations, actions, suits, loss, damages, expenses and costs (including, but not limited to, costs and expenses and attorneys' fees) arising out of or relating to: (a) Client's material breach of this Agreement; (b) Client's use of the Service Offerings in violation of this Agreement or applicable law; (c) any allegation that Client Data infringes or misappropriates any third party's Intellectual Property Rights; or (d) Client's communications or interactions with any third parties through use of the Service Offerings.  Thalamus shall promptly notify Client in writing of any claim for which Client may be obligated to indemnify Thalamus hereunder, and Thalamus's failure to provide timely notice shall relieve Client of its indemnification obligations under this Section 9.2 only to the extent Client is materially prejudiced by such failure.  Client shall have sole control over the defense and settlement of any such claim; provided that Client shall not enter into any settlement that imposes any obligation, restriction, or liability on Thalamus, or includes any admission of wrongdoing by Thalamus, without Thalamus's prior written consent, not to be unreasonably withheld.  Thalamus shall provide Client with reasonable cooperation and assistance in connection with the defense of any such claim, at Client's cost and expense.

      9.3           Infringement and Misappropriation Injunctions.  If Client’s use of any of the Services, Thalamus Network or Products hereunder is, or in Thalamus’s opinion is likely to be, enjoined as an infringement or misappropriation of any third-party Intellectual Property Right, Thalamus shall, at Thalamus’s option and expense either: (a) procure for Client the right to continue to use the Services, Thalamus Network, Deliverables, and Products under the terms of this Agreement; (b) replace or modify the Services, Thalamus Network, Deliverables, or Products so that they are non-infringing and non-violative of any third party Intellectual Property Right and substantially equivalent in function to the enjoined products or services; or, if options (a) and (b) are not reasonably possible, (c) terminate this Agreement in whole or in part and provide to Client a prorated refund of all unused prepaid amounts for the Service Offerings as of the termination date of this Agreement.

      9.4           Exclusive Remedy. This Section 9 shall constitute Client’s exclusive remedy and Thalamus’s entire liability for a Claim.

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10. CONFIDENTIALITY

      10.1           Exclusions.  Confidential Information does not include information that a party can demonstrate through competent evidence:  (a) is or becomes generally known to the public through no fault or breach of this Agreement by the receiving party; (b) is known to the receiving party at the time of disclosure without an obligation of confidentiality; (c) is independently developed by the receiving party without use of the disclosing party’s Confidential Information (provided that, in the case of Thalamus Confidential Information, Client shall only be deemed to have independently developed such information if such development was performed by Client personnel who had been given no access to Thalamus Confidential Information); (d) the receiving party rightfully obtains from a third party without restriction on use or disclosure who is rightfully empowered to disclose such information; or (e) is disclosed with the prior written approval of the disclosing party.

      10.2           Use and Disclosure Restrictions.  The receiving party will not use the disclosing party’s Confidential Information, except as permitted herein, and will not disclose such Confidential Information to any third party except to employees, contractors, agents, and representatives as is reasonably required in connection with the exercise of the receiving party’s rights and obligations under this Agreement (and only subject to written binding use and disclosure restrictions at least as protective as those set forth herein executed in writing by such employees, contractors, agents, and representatives).  The receiving party, however, may disclose Confidential Information of the disclosing party pursuant to the order or requirement of a court, administrative agency, or other governmental body, provided that the receiving party gives reasonable notice to the disclosing party of such disclosure (unless prohibited by law) so that the disclosing party may contest such order or requirement, if legally permitted to do so, in which such contest the receiving party shall reasonably cooperate.

      10.3           Equitable Relief.  In recognition of the unique and proprietary nature of the information disclosed by each party, it is agreed that each party’s remedy at law for breach by the other party of its obligations under Section 10 shall be inadequate and the disclosing party shall, in the event of such breach, be entitled to seek equitable relief, including without limitation, injunctive relief and specific performance, in addition to any other remedies provided hereunder or available at law.

11. LIMITATION OF LIABILITY

        EXCEPT FOR THE EXCLUDED CLAIMS (DEFINED BELOW), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (i) NEITHER PARTY SHALL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, LOST OPPORTUNITIES, OR INTERRUPTION OF BUSINESS, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (ii) IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EXCEED THE AMOUNT PAID AND/OR PAYABLE TO THALAMUS FROM CLIENT DURING THE IMMEDIATELY PRECEDING TWELVE MONTH PERIOD PRIOR TO THE DATE OF THE EVENT GIVING RISE TO SUCH CLAIM. THE LIMITATION IN CLAUSE (ii) ABOVE SHALL NOT APPLY TO, AND THERE SHALL BE NO CAP ON, CLIENT'S OBLIGATION TO PAY FEES, TRAVEL AND INCIDENTAL EXPENSES, FINANCE CHARGES, OR OTHER AMOUNTS DUE TO THALAMUS UNDER SECTION 7 OF THIS AGREEMENT.

        NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE LIMITATION OF LIABILITY SET FORTH ABOVE SHALL NOT APPLY TO: (i) ANY CLAIM INVOLVING A BREACH OF SECTION 3 (LICENSE), SECTION 6 (OWNERSHIP), OR SECTION 10 (CONFIDENTIALITY), OR (ii) ANY CLAIM INVOLVING WILLFUL MISCONDUCT OR GROSS NEGLIGENCE (COLLECTIVELY, THE “EXCLUDED CLAIMS”). NOTWITHSTANDING THE FOREGOING, EACH PARTY’S TOTAL, AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS INVOLVING A BREACH OF SECTION 6 (OWNERSHIP) OR SECTION 10 (CONFIDENTIALITY) WILL NOT EXCEED FIVE HUNDRED THOUSAND DOLLARS ($500,000) IN THE AGGREGATE.

        EXCEPT AS PROVIDED BELOW, NO CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY ORDER FORM, OR ANY STATEMENT OF WORK, REGARDLESS OF THE FORM OR THEORY OF THE CLAIM, MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER THE DATE ON WHICH THE CLAIM OR CAUSE OF ACTION FIRST ACCRUED, AND ANY CLAIM OR CAUSE OF ACTION NOT BROUGHT WITHIN SUCH PERIOD SHALL BE PERMANENTLY BARRED.  THE FOREGOING LIMITATION SHALL NOT APPLY TO: (A) ANY CLAIM BY THALAMUS FOR THE PAYMENT OF FEES, EXPENSES, FINANCE CHARGES, OR OTHER AMOUNTS DUE UNDER SECTION 7; OR (B) ANY CLAIM ARISING OUT OF OR RELATING TO A BREACH OF SECTION 3 (LICENSE), SECTION 6 (OWNERSHIP/INTELLECTUAL PROPERTY RIGHTS), OR SECTION 10 (CONFIDENTIALITY), EACH OF WHICH SHALL INSTEAD BE GOVERNED BY THE OTHERWISE APPLICABLE STATUTE OF LIMITATIONS.  NOTHING IN THIS SECTION EXTENDS ANY LIMITATIONS PERIOD THAT WOULD OTHERWISE APPLY UNDER APPLICABLE LAW.

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12. TERMINATION/SUSPENSION

      12.1        Term.  This Agreement will begin on the Effective Date and will remain in effect until terminated pursuant to this Section 12 (the “Term”).  Order Forms will commence on the effective date stated therein and, unless earlier terminated in accordance with this Section 12, will continue for the period stated therein. For the sake of clarity, termination of an Order Form will not function to terminate this Agreement.

      12.2        Termination for Cause.  Either party may terminate, in whole or in part, this Agreement, and/or any Order Form or Statement of Work in effect at the time for cause upon a material breach by the other party (including any default for which specific remedies are provided herein), which default either remains uncured thirty (30) days after written notice thereof is given to the defaulting party or is incapable of being cured, in which case the Agreement shall terminate upon the date of the default notice or such later date specified in such notice, if any.  Either may immediately terminate this Agreement and/or any Order Form or Statement of Work in effect at the time, in the event of any of the following: (a) the other party ceases to carry on its business; (b) the institution of bankruptcy, receivership, insolvency, reorganization or other similar proceedings by or against the other party, if such proceedings have not been dismissed or discharged within thirty (30) calendar days after they are instituted; (c) the appointment of a receiver for all or substantially all of the other party’s assets; or (d) any change in federal or state laws and/or regulations that make continued performance under this Agreement unlawful or commercially unreasonable.

      12.3        Termination for Convenience.  This Agreement may not be terminated for convenience by either party for so long as any Order Form remains in effect.  Notwithstanding the foregoing sentence, either party may terminate this Agreement for convenience upon thirty (30) days’ written notice to the other party provided there are no Order Forms then in effect.

      12.4        Effect of Termination.  Upon any termination or expiration of this Agreement: (i) all licenses and rights granted hereunder shall terminate (except to the extent otherwise identified herein), and Thalamus shall no longer provide any Services and Products to Client, except as provided otherwise in this Agreement; and (ii) each party shall promptly return or destroy the other party’s Confidential Information. Notwithstanding the foregoing, either party may maintain the other party’s Confidential Information after termination if (a) under a legal obligation to maintain such information, (b) such information is reasonably necessary to protect such party’s legitimate legal interests, (c) such information is retained on such party’s backup systems until routinely destroyed in the normal course of business, or (d) otherwise permitted under this Agreement; provided, that such Confidential Information shall remain fully subject to the obligations of confidentiality stated herein, and shall be destroyed promptly upon cessation of the conditions stated in subsections (a), (b), (c), and (d) above.

      12.5        Survival.  The rights and obligations of the parties contained in Sections 3.3 (Limited Rights), 6 (Ownership/Intellectual Property), 9 (Indemnification), 10 (Confidentiality), 11 (Limitation of Liability), 12.5 (Survival), 13 (Non-Solicitation), and 14 (General) will survive the termination of this Agreement.  Additionally, any provision that expressly states that it shall survive or which, by its nature, must survive the completion, expiration, termination, or cancellation of this Agreement, shall survive the completion, expiration, termination, or cancellation of this Agreement.  Thalamus will be entitled to payment for Services rendered as of the termination date of this Agreement. The licenses granted in Section 6.2(d) shall survive termination or expiration of this Agreement to the extent necessary to permit Thalamus to continue using Client Data, Inputs, and Client Outputs that have already been used or incorporated into Thalamus's products, services, or systems prior to the date of termination

      12.6        Suspension. If Client (a) has an outstanding, undisputed invoice amount owed to Thalamus for more than 30 days; (b) breaches Section 3.2 (License Restrictions); or (c) uses the Services in a way that materially and negatively impacts the Services or others, then Thalamus may temporarily suspend Client’s access to the Service Offerings with or without notice. However, Thalamus will inform Client before suspending Client’s access when practical. Thalamus will exercise commercially reasonable efforts to reinstate Client’s normal access to the Service Offerings if and/or when Client resolves the underlying issue.

13. NON-SOLICITATION

        During the Term and for a period of 12 months thereafter, Client shall not, and shall not permit its representatives to, directly or indirectly, in any manner make any solicitation to employ the Thalamus’s personnel without the written consent of Thalamus, to be given or withheld in Thalamus’s sole discretion.  For the purposes of this paragraph, a general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, shall not be construed as a solicitation or inducement, and the hiring of any such employees or independent contractor who freely responds thereto is not a breach of this paragraph.

14. GENERAL

      14.1        Assignment and Change in Control.  Neither party may assign this Agreement without other party's prior written consent, except as part of a merger, acquisition, sale of substantially all assets, or similar transaction.  Subject to the foregoing, this Agreement shall be fully binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their respective successors and assigns.

      14.2        Governing Law and Dispute Resolution.  The validity of this Agreement and any Order Form or Statement of Work executed by the parties, the enforcement of their terms, and the interpretation of the rights and duties of the parties shall be governed by the domestic laws of the State of California, without regard to its conflict of law provisions.  Except as set forth below, any dispute, claim, or controversy arising out of or relating to this Agreement, any Order Form, or any Statement of Work, or the breach, termination, enforcement, interpretation, or validity thereof (each, a "Dispute"), shall be finally resolved by binding arbitration administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures then in effect.  The arbitration shall be conducted before a single arbitrator, and shall take place in San Francisco, California.  The arbitrator shall apply the substantive law of the State of California, and judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.  Each party irrevocably consents and submits to the exercise of personal jurisdiction by, and venue in, the state and federal courts located in San Francisco County, California, for any action to compel arbitration, to enforce any arbitration award, or to seek the injunctive or equitable relief described below, and each party irrevocably waives, to the fullest extent permitted by applicable law, any objection or defense based on inconvenient forum or forum non conveniens.  The parties shall share equally the fees and expenses of the arbitrator and JAMS, and each party shall bear its own attorneys' fees and other costs incurred in connection with the arbitration; provided, however, that the arbitrator shall have the authority to reallocate such fees, expenses, and costs among the parties in the award as the arbitrator deems appropriate.  Notwithstanding the foregoing, either party may seek injunctive or other equitable relief from a court of competent jurisdiction to prevent or restrain any actual or threatened infringement, misappropriation, or violation of its intellectual property or Intellectual Property Rights, or any actual or threatened breach of the confidentiality obligations set forth in this Agreement, pending the resolution of any arbitration, without first submitting such request to arbitration and without waiving any right to arbitrate the underlying Dispute.

      14.3        Electronic Signatures.  The parties agree that signatures required by this Agreement are acceptable by electronic means.

      14.4        Marketing.  Client hereby permits Thalamus to list Client on Thalamus’s website and in Thalamus promotional or marketing material, including by using Client’s standard logo, as a Thalamus client and Client hereby provides a royalty-free, perpetual (but for termination of this Agreement due to Thalamus’s breach) license for Thalamus to do so.

      14.5        Severability.  If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in full force and effect.  Except where otherwise specified, the rights and remedies granted to a party under this Agreement are cumulative and in addition to, and not in lieu of, any other rights or remedies which the party may possess at law or in equity.

      14.6        Waiver.  The failure by either party to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.

      14.7        Notices.  All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  Either party may change its address for notices under this Agreement by giving written notice to the other party by the means specified in this Section.

      14.8        Force Majeure.  In no event shall either party be liable for any delay or failure to perform its obligations hereunder where such delay or failure is caused by act of God, disease, fire, terrorist act, natural calamity, war, act or order of government, labor dispute or other events beyond such party’s reasonable control to prevent or mitigate (a “Force Majeure Event”). 

      14.9        Relationship of Parties.  The parties to this Agreement are independent contractors and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between the parties.  Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent.  Neither party shall represent itself as an agent, employee, legal representative, joint venturer, or partner of the other and shall not assume or purport to create any obligation on behalf of the other.

      14.10     Headings.  The captions and headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.

      14.11     Taxes. The fees and charges under this Agreement do not include any sales, use, excise, transaction, or other similar taxes levied against or upon the licensing of Products or the furnishing or receipt of Services pursuant to this Agreement.  Client shall be responsible for all taxes associated with Services other than U.S. taxes based on Thalamus’s net income.

      14.12     Amendment.  Except as otherwise provided herein, this Agreement, an Order Form, or a Statement of Work may not be supplemented, amended or modified at any time until the parties execute a written instrument that (a) must be in a mutually agreed upon written or electronic format, (b) must be clearly designated as an amendment, addendum or change order, and (c) must be signed by an authorized representatives of each party.  The parties stipulate and agree that an exchange or series of written or electronic correspondences shall not be deemed to be such a written instrument, for supplemental, amendment or modification purposes.

      14.13     Entire Agreement.  This Agreement, including all addenda, Order Forms, Order Form Schedules, Statements of Work, SOW Schedules, Exhibits and attachments attached hereto, and other documents referred to in this Agreement and any documents referenced in such Order Forms, Order Form Schedules, Statements of Work, SOW Schedules, Exhibits, addenda, attachments and other documents are hereby incorporated in and made a part of this Agreement and contain the complete understanding and agreement of the parties and supersedes all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein (including, but not limited to, any client services agreements or master services agreements previously entered into between Client and Thalamus).