Master Terms

These Master Terms (these “Terms”) are incorporated by express reference into the Order Form(s) (as defined below) to which these Terms are attached, referenced, or made available via hyperlink. These Terms shall become binding on the effective date of the initial Order Form that incorporates these Terms (the “Effective Date”).

These Terms are entered into as of the Effective Date by and between HiddenLayer, Inc., a Delaware corporation with offices located at 14900 Avery Ranch Blvd., Box 201, Suite C200, Austin, TX 78717 (“HiddenLayer”), and the subscriber identified on the applicable Order Form (“Subscriber”) (each a “Party,” and together the “Parties”). 

Recitals

WHEREAS, HiddenLayer offers a proprietary AI security solution designed to discover, assess, and protect artificial intelligence (“AI”) models, applications, and assets, along with related services and materials;

WHEREAS, Subscriber wishes to obtain a subscription license to use the Product(s) set out in the applicable Order Form; and 

WHEREAS, HiddenLayer is willing to provide such a subscription license to Subscriber, subject to the terms and conditions of the Agreement.

NOW THEREFORE, for good and sufficient consideration, the receipt and sufficiency of which the Parties hereby acknowledge, the Parties agree as follows:

Agreement

1. Definitions. Capitalized terms have the meanings set out below. Other terms are defined in context. 
   
   1. “Account Information” means information related to Subscriber’s account and use of the Products, including: (i) contact and authentication information, and (ii) billing and payment information.  
   2. “Affiliate” means, with respect to a Party, a legal entity that is controlled by, controls, or is under common control with such Party. The term “control,” and its derivative “controlled,” means ownership or voting rights over at least fifty percent (50%) of the outstanding voting or equity securities of the entity in question or the power to direct or cause the direction of management or policies of such entity, whether through voting securities, by contract or otherwise. For purposes of this definition, “control” shall also include ownership of fifty percent (50%) or more of any equivalent form of ownership interest.
   3. “Agreement” means, collectively: (i) these Terms (including any schedule(s) attached hereto); (ii) the DPA; (iii) each Order Form; and (iv) any applicable Product-Specific Terms. 
   4. “API” means an application program interface.
   5. “Applicable Laws” means all applicable laws (including common law), codes, statutes, rules, regulations, published standards, permits, judgments, writs, injunctions or rulings.
   6. “Business Hours” means between 8:00 am to 8:00 pm Central time, not including Saturday, Sunday, or public holidays.
   7. “Channel Partner” means a reseller authorized by HiddenLayer. 
   8. “Content” means software (including machine images and APIs), data, text, materials, Confidential Information, documentation, audio, video, images, or other content.
   9. “Documentation” means written, printed, or electronically provided user manuals, product descriptions, technical manuals, specifications, or other documentation which HiddenLayer may make available to Subscriber. “Documentation” does not include marketing materials.
   10. “DPA” means the Data Protection Agreement attached hereto as Schedule 1. 
   11. “End User” means an individual employee, contractor, or other authorized representative of Subscriber who accesses or uses the Products; provided, if a Product requires individual provisioning, then such representative must also be identified by Subscriber to HiddenLayer and provisioned with login credentials. 
   12. “Error” means the failure of a Product in a form unmodified by Subscriber or any of its End Users to materially conform to Documentation or to materially conform with accepted industry practice, if no Documentation applies to such Product.
   13. “Fees” means the fees and charges specified on the Order Form or otherwise in the Agreement, including any Product-specific fees, charges, and reimbursable expenses. 
   14. “HiddenLayer Content” means Content that HiddenLayer provides or makes available to Subscriber in the course of HiddenLayer’s performance under the Agreement, as such may be modified over the Term. “HiddenLayer Content” includes Account Information and excludes any Third-Party Materials and Products.
   15. “Initial Subscription Term” means, on a per-Product basis, the initial subscription term specified in the corresponding Order Form for such Product.
   16. “IP Rights” means rights under patent law, copyright law, trademark law, data and database protection law, trade secret law, and law applicable to confidential information, and any and all similar proprietary rights, as such rights exist as of the Effective Date or subsequently acquired during the Term.
   17. “Order Form” means the ordering document, online subscription enrollment document, statement of work, purchase order, or other ordering mechanism that sets out the applicable Products and related details. 
   18. “Personal Information” has the meaning set out in the DPA. 
   19. “Product” means each product, offering, or Service specified on the applicable Order Form, as such may be updated or modified by or on behalf of HiddenLayer over the applicable Subscription Term. “Product” excludes Third-Party Materials.
   20. “Product-Specific Terms” means the terms and conditions for particular Products. 
   21. “Renewal Subscription Term” means, on a per-Product basis, the renewal subscription term(s), if any, specified in the corresponding Order Form for such Product.
   22. “Services” means those services HiddenLayer is required to perform for Subscriber that are specified in the Agreement (including on the applicable Order Form).
   23. “Specifications” means the functional Product description and specifications set out in the applicable Documentation or Product-Specific Terms. 
   24. “Subscriber Content” means Content, other than Account Information, that Subscriber uploads to, or makes available to HiddenLayer by means of, the Products, or otherwise provides to HiddenLayer, including any data, inputs, or other content that is transmitted to, processed by, or generated through the Products by or on behalf of Subscriber, its End Users, or any third party interacting with Subscriber’s systems or applications that are integrated with the Products. For the avoidance of doubt, the term “Subscriber Content” excludes Account Information.
   25. “Subscription Term” means, collectively (i) the Initial Subscription Term; and (ii) the Renewal Subscription Term. 
   26. “Third-Party Materials” means software, data, or other components that are owned by third parties, including software, data, or other components that are subject to terms and conditions of third-party licenses, including open source licenses.
   27. “Trial Period” has the meaning set out in Section 7 (Trial Services). 
   28. “Updates” means those additions, enhancements, security patches, and other updates that HiddenLayer develops for the Products and provides to its Subscriber base without additional fees.
2. Provision and Use of Products. 
   
   1. Subscriber Account. Certain Products may require Subscriber to create an account with HiddenLayer. If required, Subscriber shall create an account with HiddenLayer with accurate Account Information. Except to the extent caused by HiddenLayer’s breach of the Agreement, (i) Subscriber shall be responsible for all activities that occur under Subscriber’s account, regardless of whether the activities are authorized by Subscriber or undertaken by Subscriber, Subscriber’s employees, or a third party (including Subscriber’s End Users, contractors, or agents), and (ii) HiddenLayer is not responsible for unauthorized access to Subscriber’s account.
   2. Subscriptions; Delivery. Subscriber’s subscription to each Product shall commence as set out in the applicable Order Form(s) for the corresponding Subscription Term. The Subscription Term for each Product may not be terminated by Subscriber during the Initial Subscription Term (or any Renewal Subscription Terms) except in accordance with Section 14.2 (Termination). HiddenLayer shall deliver or make available each Product in accordance with its Documentation and in the manner set out in the applicable Order Form.
   3. Subscriber System. Subscriber shall comply with HiddenLayer’s system requirements (or if no HiddenLayer system requirements are provided, then with system requirements that an engineer with reasonable skill would infer from the Product architecture), and, unless otherwise set out in an Order Form, Subscriber is responsible for obtaining and maintaining the IT infrastructure and resources needed to access and use the Products in accordance with such requirements (the “Subscriber System”).
   4. Code of Conduct; Revocation or Suspension. Subscriber and its End Users shall follow the code of conduct (the “Code of Conduct”) set out below in connection with Subscriber’s or its End Users’ access and use of the Products or HiddenLayer Content. HiddenLayer reserves the right to revoke or suspend Subscriber’s or its End Users’ access to or use of some or all of the Products or HiddenLayer Content immediately without notice if Subscriber or any of its End Users engage in activities that breach the Code of Conduct or otherwise violate the Agreement, all without liability to Subscriber, any End User, or any third party. HiddenLayer shall be entitled to investigate any suspected violation of the Code of Conduct and may remove or disable access to any content or resource that violates the Code of Conduct without liability to Subscriber, any End User, or any third party. Subscriber shall cooperate with HiddenLayer to remedy any violation of the Code of Conduct. Under this Code of Conduct, Subscriber and its End Users shall not:
      
      1. Use the Products, Subscriber Content, or HiddenLayer Content: (i) for purposes that are unlawful, offensive, interfering with the privacy of others, or otherwise prohibited by the Agreement; (ii) to threaten, incite, promote, or actively encourage violence, terrorism, or other serious harm; or (iii) for any content or activity that promotes child sexual exploitation or abuse;
      2. Use the Products, Subscriber Content, or HiddenLayer Content in a manner designed to disable, overburden, or impair the Products or HiddenLayer Content or interfere with another party’s use and enjoyment of any of HiddenLayer’s services, products, or offerings (or their components);
      3. Bypass or interfere with license keys, usage monitoring, capacity controls, or any technical mechanisms designed to enforce licensing or seek to obtain access to any portion of the Products or HiddenLayer Content or related materials, accounts, or information through hacking, data harvesting, data mining, or through other means HiddenLayer has not intentionally made available to Subscriber through the Products or HiddenLayer Content; 
      4. Modify, reuse, disassemble, decompile, or reverse engineer any Products or HiddenLayer Content or otherwise attempt to derive any related source code; or
      5. Use the Products to develop a competing product or service or infringe HiddenLayer’s or any third party’s IP Rights, or other proprietary rights or rights of publicity or privacy.
   5. End Users. Subscriber shall actively monitor and be solely responsible (i) for each End User’s access or use of the Subscriber Content, Products, and HiddenLayer Content, and (ii) for each End User’s compliance with Subscriber’s obligations under the Agreement. If Subscriber becomes aware of any violation of its obligations under the Agreement caused by an End User, then Subscriber shall immediately suspend or terminate such End User’s access or use of the Subscriber Content, Products, and/or HiddenLayer Content. Subscriber shall only permit End Users to access or otherwise use the Products or Documentation. 
3. HiddenLayer Ownership and Grant of Rights. 
   
   1. HiddenLayer’s Grant of Rights to Subscriber. Subject to Subscriber’s compliance with the Agreement, HiddenLayer hereby grants to Subscriber, under HiddenLayer’s IP Rights and during the applicable Subscription Term, a limited, revocable, non-exclusive, non-sublicensable, non-transferable (except as expressly permitted under the Agreement) license to access and use the Products and HiddenLayer Content solely in accordance with their Documentation (if any) and the Agreement and for their intended purpose.  
   2. Third-Party Materials. HiddenLayer may incorporate, embed, or bundle with the Products or HiddenLayer Content certain Third-Party Materials. Subscriber’s use of Third-Party Materials, if any, is governed by the applicable third party’s end user license agreement or other applicable agreement, a copy of which will be provided to Subscriber upon request or may be attached to the Agreement as a schedule. HiddenLayer disclaims all warranties and responsibilities for Third-Party Materials, including any interruptions, errors, defects, changes in availability or performance, or inaccuracies in outputs generated by third-party models or services; provided, however, in the event of any failure or defect in Third-Party Materials, HiddenLayer shall use commercially reasonable efforts to work with the third party provider to resolve such issues in a timely manner. HiddenLayer will make available a current list of Third-Party Materials and applicable licenses upon request.
   3. Ownership of Products and HiddenLayer Content. As between the Parties, HiddenLayer is and shall remain sole owner of all right, title, and interest in and to: (i) each Product (and its components) and the HiddenLayer Content; (ii) other HiddenLayer Confidential Information; (iii) any improvements or modifications to (i) and (ii); and (iv) all IP Rights associated with the foregoing. Except for the limited rights granted in Section 3.1 (HiddenLayer’s Grant of Rights to Subscriber), Subscriber has no rights in or to the Products or the HiddenLayer Content. 
   4. No Implied Rights. Nothing in the Agreement shall be construed to grant Subscriber any rights other than those expressly provided herein by HiddenLayer. Any rights granted to Subscriber under the Agreement must be expressly provided herein, and Subscriber shall have no implied rights pursuant to the Agreement, based on any course of conduct or other construction or interpretation thereof. All rights and licenses not expressly granted by HiddenLayer herein are reserved.
4. Subscriber Content. 
   
   1. Responsibility for Subscriber Content. Subscriber is solely responsible for Subscriber Content and this includes the responsibility to accurately upload and otherwise provide any necessary Subscriber Content to HiddenLayer. For the avoidance of doubt, any data, inputs, or other content provided to the Products by third parties (including malicious actors) through Subscriber’s accounts, systems, applications, or integrations shall be deemed Subscriber Content for purposes of the Agreement. Without limiting the generality of the foregoing, unless otherwise set out in the applicable Product-Specific Terms or otherwise agreed upon by the Parties and memorialized in an Order Form: (i) Subscriber shall be solely responsible for backing up all Subscriber Content, and retaining such Subscriber Content in accordance with its applicable retention requirements; (ii) HiddenLayer has no obligation to backup Subscriber Content; (iii) HiddenLayer has no obligation or liability for any loss, alteration, destruction, damage, corruption or recovery of Subscriber Content; and (iv) HiddenLayer has no obligation to monitor, screen, filter, or remove any content that is sensitive, offensive, explicit, obscene, defamatory, threatening, or unlawful, including any adversarial, malicious, or otherwise harmful content originating from third parties or malicious actors. HiddenLayer does not assume any responsibility for the accuracy, legality, reliability, appropriateness, or offensiveness of Subscriber Content and expressly disclaims any and all liability arising from or related to the nature of Subscriber Content. If there is any loss, destruction, damage, or corruption of Subscriber Content under HiddenLayer’s possession or control, then HiddenLayer shall, as its sole obligation and liability and as Subscriber’s sole remedy, use commercially reasonable efforts to restore the Subscriber Content from HiddenLayer’s then-current backup of such Subscriber Content (if any) in accordance with HiddenLayer’s then-current backup policy. 
   2. License to Subscriber Content. Subscriber hereby grants to HiddenLayer, during the Term, a non-exclusive, sublicensable, transferable, limited permission and license to access, reproduce, modify, and otherwise use Subscriber Content, solely for the purpose of HiddenLayer performing its obligations under the Agreement, HiddenLayer providing the Products and HiddenLayer Content to Subscriber and any End Users, and as otherwise contemplated by the Agreement. Subscriber shall be solely responsible for obtaining all necessary rights and consents to grant the license to HiddenLayer in this Section 4.2 (License to Subscriber Content).
   3. License to Subscriber Marks. Subscriber hereby grants to HiddenLayer a non-exclusive, sublicensable license to use Subscriber’s logos and trademarks (collectively, the “Subscriber Marks”) for the purpose of identifying Subscriber as a customer of HiddenLayer in marketing, advertising, and sales materials, including in connection with use of the Quote, as described in Section 4.3.1 (Subscriber Quote), and to otherwise perform HiddenLayer’s obligations under the Agreement. 
      
      1. Subscriber Quote. Upon mutual agreement of the Parties, Subscriber may provide a quote or testimonial regarding the Products (the “Quote”). Subscriber grants HiddenLayer the right to use, reproduce, modify, publish, and display any Quote (including Subscriber Marks in connection therewith) in any marketing, promotional, or sales materials, including without limitation HiddenLayer’s website, solution briefs, case studies, presentations, press releases, and social media. 
      2. Case Studies. Upon mutual agreement of the Parties, HiddenLayer may develop case studies, Subscriber success stories, or similar content (in written, video, or other form) featuring Subscriber’s use of the Products (each, a “Case Study”). Subscriber agrees to reasonably cooperate with HiddenLayer in the creation of any mutually agreed-upon such Case Studies, and grants HiddenLayer the right to publish, display, and distribute such Case Studies. HiddenLayer will use reasonable efforts to coordinate with Subscriber prior to publication. HiddenLayer will retain final editorial control of each Case Study. 
   4. Ownership of Subscriber Content. As between the Parties, Subscriber shall remain the sole and exclusive owner of the Subscriber Content.
   5. Data Privacy. HiddenLayer shall process Personal Information included in the Subscriber Content, and safeguard the security of such Personal Information, in accordance with the DPA. 
5. Feedback. The term “Feedback” means suggestions, ideas, feature requests, and recommendations made by Subscriber relating to the Products, HiddenLayer Content, or other elements of HiddenLayer’s business. If Subscriber chooses to provide Feedback to HiddenLayer, then Subscriber hereby irrevocably assigns and transfers to HiddenLayer, all right, title, and interest in and to the Feedback. Subscriber shall provide, and shall cause such End User(s) to provide, HiddenLayer with any assistance HiddenLayer requires to document, perfect, and maintain its rights in the Feedback.
6. Statistical Data. HiddenLayer shall be entitled to collect, compile, analyze, archive, and otherwise use and exploit (i) statistical data related to Subscriber’s and its End Users’ use of the Products and HiddenLayer Content; (ii) metadata that HiddenLayer collects in connection with Subscriber’s and its End Users’ use of the Products or HiddenLayer Content, including usage data collected for the purpose of billing, maintaining the security of the Products or HiddenLayer Content, or optimizing the Products or HiddenLayer Content; and (iii) other data that qualifies as De-Identified Data (collectively, the “Statistical Data”). The term “De-Identified Data” means information from which Personal Information has been deleted, masked, or suppressed, and information that has been anonymized, all in a manner such that the information (a) does not identify a particular natural person; (b) does not identify, by network Internet Protocol address or other identifier a particular device or computer associated with or used by a person; and (c) is not reasonably linkable to a particular natural person due to technical, legal, or other controls. No compensation shall be paid by HiddenLayer with respect to its use of the Statistical Data. 
7. Trial Services.  HiddenLayer may, in its discretion, make the Products (or certain components of the Products) available to Subscriber for no cost for evaluation purposes, including proof of concept or proof of value engagements (a “Trial Service”), whether or not set out in an Order Form. If Subscriber participates in a Trial Service, then HiddenLayer will make the applicable Trial Service available to Subscriber at no cost at the start date communicated by HiddenLayer to Subscriber and continuing until the earlier of the following to occur (the “Trial Period”): (i) the end of the trial period set out in the applicable Order Form or as otherwise communicated by HiddenLayer; (ii) the start date of any paid access to such Products provided as a Trial Service; or (iii) termination of the Trial Service by HiddenLayer. During the Trial Period, HiddenLayer shall be entitled to terminate Subscriber’s access to the Trial Service in its sole discretion for any or no reason upon written notice to Subscriber, and HiddenLayer will not be liable to Subscriber or any third party for such termination. Subscriber may be required to agree to additional terms and conditions in connection with the Trial Service. Upon expiration or termination of the Trial Period, Subscriber shall promptly return or permanently destroy all copies of any software, code, or other materials provided by HiddenLayer in connection with the Trial Service that are in Subscriber’s possession or control (including any air-gapped or on-premises deployments) and certify the same in writing upon HiddenLayer’s request. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, INCLUDING HIDDENLAYER’S REPRESENTATIONS, WARRANTIES, INDEMNIFICATION OBLIGATIONS SET OUT IN THE AGREEMENT, (a) EACH TRIAL SERVICE IS PROVIDED “AS-IS,” “WHERE-IS,” AND WITH ALL FAULTS WITHOUT ANY REPRESENTATION AND WARRANTY OF ANY KIND AND HIDDENLAYER SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO ANY TRIAL SERVICE; (b) HIDDENLAYER SHALL NOT PROVIDE SUPPORT SERVICES FOR THE TRIAL SERVICES; (c) UNDER NO CIRCUMSTANCES WILL HIDDENLAYER OR ITS LICENSORS OR THEIR SERVICE PROVIDERS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES THAT ARISE OUT OF, OR ARE RELATED TO, SUBSCRIBER’S ACCESS OR USE OF THE TRIAL SERVICE; AND (d) IN NO EVENT SHALL HIDDENLAYER’S OR ITS LICENSORS’ OR THEIR SERVICE PROVIDERS’ MAXIMUM AGGREGATE LIABILITY TO SUBSCRIBER FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE TRIAL SERVICE EXCEED ONE HUNDRED DOLLARS ($100). THE FOREGOING SHALL HAVE NO IMPACT ON ANY OF SUBSCRIBER’S OBLIGATIONS UNDER THE AGREEMENT. 
8. Support and Maintenance. HiddenLayer shall provide the following support and maintenance services for the Products (the “Support Services”). Additional or enhanced support services may be made available pursuant to the applicable Order Form, and in the event of any conflict between this Section and the terms of such additional or enhanced support services, the terms of the applicable Order Form shall control.
   
   1. Helpdesk Support. HiddenLayer will provide reasonable helpdesk support for reproducible Errors during Business Hours to Subscriber via email at support@hiddenlayer.com (or such other mechanism as HiddenLayer may designate from time to time). End Users reporting Errors shall: (i) provide a reasonably detailed description of the Error; (ii) report the Error to HiddenLayer in a form that HiddenLayer reasonably prescribes; and (iii) promptly provide such other information and assistance that HiddenLayer reasonably requests. HiddenLayer shall assign appropriate priority to each reproducible Error based on information available and in a manner consistent with good industry practices. 
   2. Error Resolution. HiddenLayer shall use commercially reasonable efforts to resolve reproducible Errors within a commercially reasonable time based on the HiddenLayer-assigned priority. Each helpdesk ticket shall remain open until HiddenLayer has provided an Error correction that HiddenLayer determines to have resolved the Error. HiddenLayer shall notify Subscriber once an Error correction has been provided. HiddenLayer may periodically provide Updates to the Products throughout the Term. 
   3. Product Availability. HiddenLayer shall use commercially reasonable efforts to make the Products and HiddenLayer Content available to Subscriber throughout the corresponding Subscription Term without interruption, subject to reasonable downtime for maintenance, Error corrections, Updates, and factors outside of HiddenLayer’s reasonable control.
   4. Exclusions to Support Services. Support Services shall not include: (i) training on the use of the Products or HiddenLayer Content or other “how to” questions; or (ii) Errors attributable to: (a) Subscriber’s actions or omissions; (b) Subscriber Content or Subscriber System; (c) any software, hardware, and materials not provided by HiddenLayer; or (d) factors outside of HiddenLayer’s reasonable control, including cellular or network connectivity and communications failures. In addition, if Subscriber could reasonably have resolved its support request by reference to available Documentation, HiddenLayer shall be entitled to fulfill the support request by simply referring Subscriber to the Documentation or, upon prior notice to Subscriber, charging Subscriber for such support request. 
9. Fees and Payment. 
   
   1. Payment Terms; Past Due Amounts. This Section 9.1 (Payment Terms; Past Due Amounts) is subject to Section 9.3 (Channel Partner Fees). HiddenLayer will invoice Subscriber in accordance with the Order Form. Unless otherwise specified in an Order Form, Subscriber shall pay invoices in full (without deduction, set-off, or counterclaim) within thirty (30) days of the date upon which the invoice is issued. If Subscriber fails to make full payment when due, then HiddenLayer, without prejudice to any of its other rights or remedies under the Agreement or at law or equity, shall be entitled to (i) charge Subscriber interest on the past due amount at the rate of one and one half percent (1.5%) per month or the maximum amount permitted by Applicable Laws, whichever is less, and (ii) if such failure continues for thirty (30) days following written notice thereof, suspend access to the Products and HiddenLayer Content until all past due amounts have been paid, without incurring any obligation or liability to Subscriber or any other person by reason of such suspension. 
   2. Taxes. This Section 9.2 (Taxes) is subject to Section 9.3 (Channel Partner Fees). All payments required by the Agreement are exclusive of federal, state, local and foreign taxes, duties, tariffs, levies, withholdings and similar assessments (including without limitation, value added taxes, sales taxes, use taxes, and withholding taxes), and Subscriber agrees to bear and be responsible for the payment of all such taxes and charges, excluding taxes imposed on or measured by HiddenLayer’s net income.
   3. Channel Partner Fees. If Subscriber is obtaining Products via a Channel Partner, then this Section 9.3 (Channel Partner Fees) shall apply in lieu of Section 9.1 (Payment Terms; Past Due Amounts) and Section 9.2 (Taxes). Subscriber acknowledges and agrees that Channel Partner, not Subscriber, has paid or will pay HiddenLayer for Subscriber’s access to and use of the Products. Channel Partner’s failure to pay HiddenLayer in accordance with the applicable Order Form shall be a material breach of the Agreement for which HiddenLayer shall be entitled to terminate or suspend Subscriber’s access and use of the Products at issue after HiddenLayer provides notice of such nonpayment to Subscriber and Channel Partner. Notwithstanding the generality of the foregoing, HiddenLayer may, at its discretion, provide Subscriber with the right to cure such nonpayment by Channel Partner in order for Subscriber to continue to access the Products at issue.  
10. Confidentiality. Confidential or sensitive information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) under the Agreement shall be governed as follows: 
    
    1. Confidential Information. The term “Confidential Information” means all information the Receiving Party accesses or receives from the Disclosing Party pursuant to the Agreement, whether oral or in writing (including electronic transmission) concerning the Disclosing Party’s business, technology, finances, Subscriber’s or prospective Subscriber’s security, plans, methods, research and development, prototypes, software, books and records, and other similar information and materials: (i) that are designated as “Confidential” or “Proprietary” by the Disclosing Party, or (ii) that by the nature of the circumstances surrounding disclosure, or the information itself, should be treated as confidential. The Parties acknowledge and agree that Personal Information, which is subject to the requirements and obligations set out in the DPA, shall not be considered Confidential Information or otherwise subject to this Section 10 (Confidentiality). 
    2. Non-Disclosure; Standard. The Receiving Party shall maintain the Disclosing Party’s Confidential Information in strict confidence and shall not use or disclose such Confidential Information except for purposes permitted under the Agreement. The Receiving Party shall be entitled to disclose such Confidential Information on a need-to-know basis to its employees, agents, subcontractors, attorneys, accountants, and investors, provided the same are bound by non-disclosure and confidentiality obligations no less protective than those set out in the Agreement. The Receiving Party shall use at least the same degree of care in safeguarding the Disclosing Party’s Confidential Information as it uses in safeguarding its own Confidential Information but shall not use less than reasonable care and diligence.
    3. Exceptions. The Receiving Party’s obligations with respect to Confidential Information shall not apply to Confidential Information that the Receiving Party can demonstrate: (i) is or becomes a matter of public knowledge through no fault of the Receiving Party; (ii) was or becomes available to the Receiving Party on a non-confidential basis from a third party, provided that such third party is not bound by an obligation of confidentiality to the Disclosing Party with respect to such Confidential Information; or (iii) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information.
    4. Judicial Orders. The Receiving Party shall be permitted to disclose the Disclosing Party’s Confidential Information if a subpoena, discovery request, court order, or other request or requirement of a governmental body (with requisite jurisdiction) or other Applicable Laws requires that such Confidential Information be produced or disclosed, provided that the Receiving Party (unless expressly prohibited by the governmental body) gives the Disclosing Party notice of such requirement and cooperates with the Disclosing Party in seeking a protective order or other applicable relief.
11. Representations and Warranties. 
    
    1. Mutual Representations and Warranties. Each Party represents and warrants: (i) that it is duly organized, validly existing and in good standing, and is qualified and/or licensed to do business in all jurisdictions to the extent necessary to carry out its obligations under the Agreement; (ii) that its execution, delivery and performance of the Agreement will not violate or constitute a default under any agreement of such Party; and (iii) that it has the full right, power, and authority to enter into and be bound by the terms and conditions of the Agreement and to perform its obligations under the Agreement.
    2. Subscriber Representations and Warranties. Subscriber represents and warrants to HiddenLayer: (i) that it has secured all rights in Subscriber Content, Feedback, and the Subscriber System necessary to permit HiddenLayer’s access, use, and processing of Subscriber Content and the Subscriber System (as the case may be) as contemplated in the Agreement; (ii) that it will not upload or release viruses or malicious code to the Products or HiddenLayer Content; (iii) that it will comply with Applicable Laws; and (iv) that none of the Subscriber Content or End Users’ access or use of Subscriber Content, any Products, or any HiddenLayer Content, will violate the terms of the Agreement. 
    3. HiddenLayer Representations and Warranties. HiddenLayer represents and warrants to Subscriber: (i) that Services included in the Products (including the Support Services) will be performed in accordance with accepted industry practice and by qualified individuals; (ii) that the Products will substantially conform to Documentation; and (iii) that software components of the Products will be scanned using commercially available virus scanning and removal software in accordance with accepted industry practice.
    4. Disclaimer of Warranties. EXCEPT AS EXPRESSLY SET OUT IN SECTION 11 (Representations and Warranties) OR THE APPLICABLE PRODUCT-SPECIFIC TERMS, THE PRODUCTS, HIDDENLAYER CONTENT, AND ALL HIDDENLAYER PERFORMANCE OBLIGATIONS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND HIDDENLAYER HEREBY EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, ACCURACY, INTEGRATION, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, HIDDENLAYER DOES NOT REPRESENT OR WARRANT THAT: (I) THE PRODUCTS WILL BE ERROR-FREE, UNINTERRUPTED, OR FREE OF VULNERABILITIES; (II) ANY OUTPUT, RESULT, OR ANALYSIS GENERATED BY THE PRODUCTS WILL BE ACCURATE, COMPLETE, OR RELIABLE; OR (III) THE PRODUCTS WILL DETECT OR PREVENT ALL SECURITY THREATS, ATTACKS, OR VULNERABILITIES. SUBSCRIBER ACKNOWLEDGES THAT THE PRODUCTS MAY INCORPORATE OR RELY UPON THIRD-PARTY AI MODELS, SERVICES, OR OTHER COMPONENTS, AND HIDDENLAYER SHALL HAVE NO LIABILITY FOR THE AVAILABILITY, PERFORMANCE, ACCURACY, OR OUTPUT OF SUCH THIRD-PARTY COMPONENTS, OR FOR ANY CHANGES TO SUCH THIRD-PARTY COMPONENTS. SUBSCRIBER SHALL NOT RELY ON ANY AI-GENERATED OUTPUT AS A SUBSTITUTE FOR INDEPENDENT PROFESSIONAL JUDGMENT, AND HIDDENLAYER SHALL HAVE NO LIABILITY ARISING FROM SUBSCRIBER’S RELIANCE ON SUCH OUTPUT.
12. Indemnification. 
    
    1. Subscriber Indemnification. Subscriber shall defend, indemnify, and hold HiddenLayer and its Affiliates and its and their respective officers, directors, employees, and agents (each, a “HiddenLayer Indemnitee”) harmless from and against any third party claim, action, suit, or proceeding resulting from or related to (i) Subscriber’s or any of its End Users’ use of the Products or HiddenLayer Content in a manner not authorized by the Agreement, or (ii) any breach of its representations and warranties. Subscriber shall indemnify HiddenLayer for all losses, damages, liabilities, and all reasonable expenses and costs (including, but not limited to, attorneys’ fees) incurred by HiddenLayer or any HiddenLayer Indemnitee in any such claim, action, suit, or proceeding. 
    2. HiddenLayer Indemnification. HiddenLayer shall defend, indemnify, and hold Subscriber and its Affiliates and its and their respective officers, directors, employees, and agents (each, a “Subscriber Indemnitee”) harmless from and against any third party claim, action, suit, or proceeding resulting from claims that Subscriber’s use of the Products in accordance with the Agreement infringes the IP Rights of such third party. HiddenLayer shall indemnify Subscriber for all losses, damages, liabilities, and all reasonable expenses and costs (including, but not limited to, attorneys’ fees) incurred by Subscriber or any Subscriber Indemnitee in any such claim, action, suit, or proceeding. The foregoing indemnification obligation shall not apply to the extent resulting from, arising out of, or relating to: (i) access to or use of the Products or HiddenLayer Content in combination with any hardware, system, software, network, or other materials or service not provided or authorized in writing by HiddenLayer; (ii) failure to timely implement any modifications, upgrades, Updates, replacements, or enhancements made available to Subscriber by or on behalf of HiddenLayer; or (iii) any modification to the Product at issue not made or authorized by HiddenLayer. 
    3. Indemnification Procedure. The Party seeking indemnification shall promptly notify the indemnifying Party in writing of any action for which the Party seeking indemnification believes it is entitled to be indemnified pursuant to this Section 12 (Indemnification). The Party seeking indemnification shall cooperate with the indemnifying Party at the indemnifying Party’s sole cost and expense. The indemnifying Party shall immediately take control of the defense and investigation of such action at the indemnifying Party’s sole cost and expense. The indemnifying Party shall not admit fault or liability of the Party seeking indemnification without having obtained the prior written consent of the Party seeking indemnification. The indemnifying Party will not enter into any settlement that adversely affects the indemnified Party’s rights or interest without its prior written approval, not to be unreasonably withheld. The indemnifying Party shall not be responsible for any settlement it does not approve in writing. The Party seeking indemnification’s failure to perform any obligations under this Section 12.3 (Indemnification Procedure) shall not relieve the indemnifying Party of its obligations under this Section 12 (Indemnification) except to the extent that the indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure. The Party seeking indemnification shall have the right to participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. 
    4. Infringement Claims. If a third party asserts or threatens to assert a claim of infringement or misappropriation of IP Rights against HiddenLayer, its subcontractors, or its licensors, then HiddenLayer shall be entitled, in its sole discretion, to: (i) obtain a license to the third party IP Rights at issue, (ii) implement a work-around that preserves the material features and performance of the Products or HiddenLayer Content at issue, or (iii) if, in HiddenLayer’s sole discretion, neither of these options is viable, terminate the Agreement and provide a pro-rata refund of any pre-paid Fees to Subscriber. The foregoing (in addition to Section 12.2 (HiddenLayer Indemnification), if applicable) states the entire liability of HiddenLayer, and Subscriber’s exclusive remedy, with respect to actual or alleged violation of third party IP Rights by the Products, HiddenLayer Content, or other performance by, or deliverable from, HiddenLayer under the Agreement.
13. Limitation of Liability. TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAWS, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS; LOSS OF DATA; OR LOSS OR INTERRUPTION OF USE; EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE GREATEST EXTENT PERMITTED UNDER APPLICABLE LAWS, EXCEPT FOR WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY FOR DAMAGES, CLAIMS, OR OTHER LOSSES ARISING UNDER OR RELATED TO THE AGREEMENT EXCEED (i) AN AMOUNT EQUAL TO EITHER THE FEES PAID OR PAYABLE BY SUBSCRIBER IN THE 12 MONTHS PRECEDING THE CLAIM, OR (ii) IF SUBSCRIBER IS OBTAINING PRODUCTS VIA A CHANNEL PARTNER, THEN AN AMOUNT EQUAL TO THE FEES PAID BY CHANNEL PARTNER FOR SUBSCRIBER’S ACCESS TO AND USE OF THE PRODUCTS IN THE 12 MONTHS PRECEDING THE CLAIM.
14. Term and Termination. 
    
    1. Term. Unless earlier terminated in accordance with the Agreement, the term of the Agreement shall commence on the Effective Date and continue until the expiration or termination of the last Subscription Term then in-effect (the “Term”).
    2. Termination. Either Party shall be entitled to terminate the Agreement or the applicable Order Form for the other Party’s material breach by (i) providing written notice to the other Party reasonably identifying such material breach, and (ii) then providing the other Party a thirty (30) day period to cure, commencing on such Party’s receipt of this notice (the “Cure Period”). If the Party in breach fails to cure the breach within the Cure Period to the reasonable satisfaction of the non-breaching Party, then the non-breaching Party may terminate the Agreement or the applicable Order Form by providing written notice to the Party in breach as of the last date of the Cure Period or as otherwise specified in such written notice. For the avoidance of doubt, the termination of the Agreement shall terminate all Order Form(s) in effect, and the termination of an Order Form will not terminate any other Order Form(s) in effect or the Agreement. In addition to HiddenLayer’s other rights under the Agreement, HiddenLayer may, in its reasonable discretion, suspend or disable Subscriber’s right and ability to access and use the Products, without notice and without liability, if HiddenLayer reasonably believes that Subscriber has breached or failed to comply with any of the terms of the Agreement or for any other reason that HiddenLayer believes is causing material risk, liability, loss, or damage to HiddenLayer, the Products, any other users of the Products, or any other third parties. In the event of a suspension, Subscriber shall promptly cooperate with HiddenLayer in attempting to resolve the applicable issue.
    3. Effect of Termination or Expiration of the Agreement. Immediately upon termination or expiration of the Agreement: (i) HiddenLayer shall cease providing the Products and HiddenLayer Content; (ii) all of Subscriber’s licenses under the Agreement shall end and Subscriber and each of its End User(s) shall immediately cease accessing and using any Products and HiddenLayer Content; (iii) each Party shall return or permanently destroy all tangible Confidential Information of the other Party and certify the same in writing upon request (provided HiddenLayer may retain copies to the extent required for legal compliance and that the same resides on backup servers); and (iv) HiddenLayer may retain any Statistical Data derived from Subscriber’s use of the Products after the Term.  HiddenLayer has no obligation to retain any Subscriber Content and Subscriber is solely responsible for exporting any Subscriber Content prior to termination of the Agreement.
    4. Effect of Termination or Expiration of Order Form. Immediately upon termination or expiration of an Order Form: (i) HiddenLayer shall cease providing the Products and HiddenLayer Content subject to such Order Form, and (ii) all of Subscriber’s licenses to the Products set out in such Order Form shall end and Subscriber and each of its End User(s) shall immediately cease accessing and using any such Products and HiddenLayer Content. 
    5. Survival. In addition to any right or obligation that by its nature is intended to survive, the following Sections of these Terms shall survive any termination or expiration of the Agreement: Section 3.2 (Third-Party Materials); Section 3.3 (Ownership of Products and HiddenLayer Content); Section 3.4 (No Implied Rights); Section 4.4 (Ownership of Subscriber Content); Section 5 (Feedback); Section 6 (Statistical Data); Section 9 (Fees and Payment); Section 10 (Confidentiality); Section 12 (Indemnification); Section 13 (Limitation of Liability); Section 16 (Subscriber Affiliates); and Section 17 (General).
15. Force Majeure. HiddenLayer shall not be liable hereunder by reason of any failure or delay in the performance of its obligations to the extent such failure or delay results from causes beyond the reasonable control of HiddenLayer, including without limitation fire, third parties, internet or telecommunication failures, failures or disruptions of third-party services or components, explosion, flood, war, sabotage, strike or riot, provided that HiddenLayer uses commercially reasonable efforts to avoid or remove such causes of such failure or delay and promptly continues performance under the Agreement once such cause(s) cease.
16. Subscriber Affiliates. Affiliates of Subscriber are entitled to enter into Order Forms with HiddenLayer (if agreed to by HiddenLayer in such Order Form). Upon execution or acceptance of such an Order Form, the Affiliate (an “Affiliate Signatory”) becomes a Party to the Agreement, and references to Subscriber in the Agreement are deemed to be references to such Affiliate Signatory. Subscriber shall be fully liable and responsible for the acts or omissions of any Affiliate Signatories, to the same extent as if Subscriber itself had committed the act or made the omission. HiddenLayer has no obligations to, and grants no rights to, Affiliates of Subscriber other than Affiliate Signatories.
17. General.
    
    1. Notices. Any notices required or permitted in the Agreement shall be deemed given: (i) if delivered personally or by overnight courier, upon receipt; (ii) if sent by electronic mail, upon confirmation of receipt (with receipt confirmed upon request); or (iii) if sent by certified or registered mail, postage prepaid, three (3) days after the date of mailing. Notice for HiddenLayer shall be sent to the following addresses: (a) for physical notices, 14900 Avery Ranch Blvd. Box 201 Suite C200 Austin, TX 78717; and (b) for electronic notices, legal@hiddenlayer.com. Notices for Subscriber shall be sent to the address set out in the Order Form. 
    2. Assignment. The Agreement may not be assigned, in whole or in part, by either Party without the other Party’s prior written consent, which shall not be unreasonably withheld or delayed; provided, however, such consent is not required for HiddenLayer to assign the Agreement to any purchaser of (i) all or substantially all of its business that concerns the Agreement, or (ii) voting stock that results in an effective change of control of HiddenLayer (whether by sale of assets or stock or by equity, merger, consolidation, or otherwise). No assignment or transfer shall relieve a Party of any of its obligations or performance under the Agreement. Any purported assignment, delegation, or transfer in violation of this Section 17.2 (Assignment) is void. The Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns. 
    3. Severability; No Waiver; Headings. If any provision of the Agreement is determined to be unenforceable or invalid by Applicable Laws or court decision, such unenforceability or invalidity shall not render the Agreement unenforceable or invalid as a whole and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such provision within the limits of Applicable Laws or court decision. No failure or delay in exercising any right under the Agreement will operate as a waiver of such right or preclude any further exercise. Headings used in the Agreement are for reference purposes only and in no way define, limit, construe, or describe the scope or extent of such section or in any way affect the Agreement.
    4. Governing Law; Exclusive Jurisdiction. The Agreement shall be governed and construed in all respects in accordance with the laws of the State of Texas without regard to any conflict of laws principles. The exclusive venue and jurisdiction for any action or proceeding arising out of the Agreement shall be the state and federal courts located in Travis County, Texas. The Parties accept the personal jurisdiction of such courts. 
    5. Subcontracting; Independent Contractors. HiddenLayer shall be entitled to use subcontractors in the performance of HiddenLayer’s obligations under the Agreement; provided, however that if HiddenLayer engages subcontractors, then HiddenLayer shall remain liable for all obligations under the Agreement as though no such subcontracting had occurred. The Parties are independent contractors, and no agency, partnership, joint venture, or employer-employee relationship is intended or created by the Agreement. Neither Party shall have the power to oblige or bind the other Party.
    6. Export; Trade Compliance. In connection with the Agreement, each Party will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations, including all such laws and regulations that apply to a U.S. company (e.g., the Export Administration Regulations, the International Traffic in Arms Regulations, and economic sanctions programs implemented by the Office of Foreign Assets Control). For the avoidance of doubt, Subscriber is solely responsible for compliance related to the manner in which Subscriber chooses to access and use the Products, HiddenLayer Content, and Subscriber Content, including Subscriber’s transfer and processing of Subscriber Content, the provision of Subscriber Content to End Users, and the region in which any of the foregoing occur. Subscriber represents and warrants that Subscriber and Subscriber’s financial institutions, or any party that owns or controls Subscriber or Subscriber’s financial institutions, are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority.
    7. U.S. Government Rights. The Products and HiddenLayer Content are provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Products and HiddenLayer Content. If Subscriber or any of its End Users are using the Products and HiddenLayer Content on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Subscriber and such End Users will immediately discontinue its or their use of the Products and HiddenLayer Content. The terms “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement. 
    8. Integration; Modifications. The Agreement sets forth the entire understanding and agreement of the Parties and supersedes any and all oral or written agreements or understandings between the Parties as to the subject matter of the Agreement. Neither Party is relying on any warranties, representations, assurances, or inducements not expressly set forth herein. The Agreement may be changed only by a writing signed by both Parties. For clarity, Subscriber’s execution or acceptance of an Order Form that incorporates these Terms by attachment, reference, or hyperlink shall constitute Subscriber’s agreement to be bound by these Terms as if Subscriber had executed these Terms.
    9. Counterparts; Order of Precedence. The Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one Agreement. An electronic signature or a photocopy, facsimile, or scanned copy of a signature on the Agreement shall have the same force and effect as an original ink signature. Except as otherwise expressly set out herein, the Parties agree that any conflict among these Terms, any schedules, the Product-Specific Terms, and incorporated Order Forms shall be resolved with the following order of precedence: (i) the Order Form(s) (but solely for the Products specified in the applicable Order Form); (ii) these Terms; (iii) the Product-Specific Terms; and lastly (iv) the schedules (unless expressly provided otherwise in the applicable schedule); provided, however, that the terms and conditions set out in the Product-Specific Terms shall be in addition to (and not in replacement of) the provisions of these Terms, Order Forms, and schedules.