Terms and Conditions

Capitalized terms shall have the meanings set forth in this section, or in the section where they are first used.

1.1. "Applicable Data Protection Laws" means the privacy, data protection and data security laws and regulations of any jurisdiction applicable to the processing of Customer Personal Data under the Agreement.

1.2. "Authorized User" means any individual who is an employee of Customer or such other person or entity as may be authorized by Customer, to access one or more Services pursuant to Customer's rights under this Agreement.

1.3. "Compute Credit" means a unit of measure defined by Lightning AI, which is consumed when Customer uses computational processing, memory and/or resources as part of the Services.

1.4. "Compute Limit" means maximum amount of computational processing, memory and/or resources for which applicable fees have been paid by Customer as part of its subscription to the Services.

1.5. "Customer Models" means any algorithms, AI models and related training data uploaded or transmitted by Customer to the Services.

1.6. "Customer Personal Data" means any Personal Data comprised within Customer Models and processed by Lightning AI on behalf of Customer in order to perform the Services under the Agreement, excluding Performance Data.

1.7. "Documentation" means the technical materials provided by Lightning AI to Customer in hard copy or electronic form describing the use and operation of the Services.

1.8. "Error" means a reproducible failure of the Services to substantially conform to the Documentation.

1.9. "Error Corrections" means bug fixes or workarounds intended to correct Errors in the Services.

1.10. "Lightning AI Property" means the Services, Documentation, Performance Data and all systems, networks, APIs, websites or other materials that are either owned or operated by Lightning AI, or provided to Customer in connection with this Agreement.

1.11. "Intellectual Property Rights" means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.

1.12. "Order" or "Order Form" means an order form that is based on the template in Exhibit A, is signed by both parties, and references this Agreement.

1.13. "Performance Data" means any log files, metadata and other technical performance data automatically generated by the Services relating to the use, performance, efficacy, reliability and/or accuracy of the Services, and which does not contain or reference any data, information or materials in any form relating to Customer's Account of Customer Models.

1.14. "Personal Data" means "personal data," "personal information," "personally identifiable information" or similar term defined in Applicable Data Protection Laws.

1.15. "Personal Data Breach" means a breach of Lightning AI's security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Customer Personal Data in Lightning AI's possession, custody or control. For clarity, Personal Data Breach does not include unsuccessful attempts or activities that do not compromise the security of Customer Personal Data (such as unsuccessful log-in attempts, pings, port scans, denial of service attacks, or other network attacks on firewalls or networked systems).

1.16. "Services" means any services provided by Lightning AI to Customer under this Agreement as set forth in an Order Form.

1.17. "Update" means an update, upgrade, enhancement or any other improvement to the Services that, in its discretion, Lightning AI makes generally available to other Customers as part of the standard Services.

Subject to the terms and conditions of this Agreement, Lightning AI grants to Customer a non-exclusive, non-transferable license, during the term of Customer's subscription, solely for Customer's internal business purposes (a) to access and use the Services and in accordance with the Documentation; and (b) to use and reproduce a reasonable number of copies of the Documentation solely to support Customer's use of the Services.

As part of the Services, Lightning AI may provide Customer with a number of Compute Credits to be used on a monthly basis. However, Lightning AI may impose Compute Limits based on the subscription tier purchased by Customer. In the event that Customer wishes to increase the Compute Limit, Customer shall be required to pay additional fees associated with the increased pricing tier, prorated for the remainder of the then-current term.

During the term of this Agreement, Lightning AI may, in its sole discretion, provide Customer with Updates. In the event of a material Update, Lightning AI shall promptly inform Customer by email of such Update. Updates (if any) will be deemed to be part of the Services under this Agreement. Lightning AI is not obligated to provide any Updates to the Services.

Subject to the terms and conditions of this Agreement, Lightning AI will exercise commercially reasonable efforts to provide support for the use of the Services to Customer in accordance with Exhibit B. In connection with the operation of the Services, Lightning AI shall use commercially reasonable efforts to provide support by email from 9:00 AM to 5:00 PM (Pacific Time) during Business Days. Lightning AI will use commercially reasonable efforts to respond to support requests within one (1) Business Day.

Customer agrees that it will not, and will not permit any Authorized User or other party to: (a) permit any party to access the Services or Documentation or use the Services, other than the Authorized Users authorized under this Agreement; (b) modify, adapt, alter or translate the Lightning AI Property, except as expressly allowed herein; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Services or Documentation to any third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services; (e) use or copy the Services or Documentation except as expressly allowed under this subsection; (f) use the Service to conduct or promote any illegal activities; or (g) take any other action that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Lightning AI's prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; (v) impersonates any person or entity, including any employee or representative of Lightning AI; (vi) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by the Agreement; or (vii) attempts to engage in or engage in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, using manual or automated software or other means to access, "scrape," "crawl" or "spider" any pages contained in the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, "flooding," "spamming," "mail bombing," or "crashing" the Services. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Lightning AI Property or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the Services.

Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Lightning AI, or any products utilizing such data, in violation of the United States export laws or regulations. In particular, but without limitation, the Lightning AI Property may not be accessed or used by anyone on the U.S. Treasury Department's list of Specifically Designated Nationals or the U.S. Department of Commerce's Denied Person's List or Entity List. By entering into this Agreement and/or using the Services, Customer represents and warrants that (i) Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, and (ii) Customer is not listed on any U.S. Government list of prohibited or restricted parties. Customer also will not use the Services for any purpose prohibited by U.S. law.

In consideration for the Services provided by Lightning AI under this Agreement, Customer will pay to Lightning AI all fees set forth on a particular Order Form. The prices stated in an Order Form are stated in U.S. dollars. Except as otherwise set forth in the applicable Order Form, all amounts due hereunder shall be due within thirty (30) days after receipt of the applicable invoice.

All payment obligations are non-cancellable and all amounts paid are non-refundable. Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate, if less. Lightning AI shall be entitled to withhold performance and discontinue service until all amounts due are paid in full. Lightning AI's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Lightning AI's income. Customer agrees to provide Lightning AI with complete and accurate billing information and contact information. Customer agrees to update this information within thirty (30) days of any change to it. If the contact information Customer has provided is false or fraudulent, Lightning AI may terminate Customer's access to the Services in addition to other legal remedies.

The amounts paid hereunder are non-refundable. In the event, Lightning AI, in its sole discretion, issues a refund, such refund will be credited back to the same payment method used to make the payment and are exclusive of any processing fees previously paid by Customer.

As between Lightning AI and Customer, the Lightning AI Property and all worldwide Intellectual Property Rights in each of the foregoing, are the exclusive property of Lightning AI and its suppliers. All rights in and to the Lightning AI Property not expressly granted to Customer in this Agreement are reserved by Lightning AI and its suppliers. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Lightning AI Property or any part thereof, including any right to obtain possession of any source code, data or other technical material related to the Services.

As between Customer and Lightning AI, Customer Models and all worldwide Intellectual Property Rights therein, are the exclusive property of Customer. All rights in and to the Customer Models not expressly granted to Lightning AI in this Agreement are reserved by Customer. Customer hereby grants to Lightning AI a worldwide, non-exclusive, royalty-free, and fully paid up right and license to use the Customer Models for the purpose of providing the Services. In no event will Lightning AI access the source code for any Customer Models for purposes other than operational purposes, including to provide the Services. Notwithstanding the foregoing, Customer acknowledges that Lightning AI may freely use Performance Data for any purpose. Customer is solely responsible for any and all obligations with respect to the accuracy, quality and legality of Customer Models. Customer will obtain all third party licenses, consents and permissions needed for Lightning AI to use the Customer Models to provide the Services. Without limiting the foregoing, Customer will be solely responsible for obtaining from third parties all necessary rights for Lightning AI to use the Customer Models submitted by or on behalf of Customer for the purposes set forth in this Agreement. Lightning AI agrees to use commercially reasonable efforts to maintain administrative, physical and technical security measures designed to protect the Customer Models against unlawful destruction, loss, alteration, unauthorized disclosure of or access. In the event Lightning AI becomes aware of any Personal Data Breach, Lightning AI will notify Customer without undue delay. Lightning AI shall provide Customer with information (insofar as such information is within Lightning AI's possession and knowledge and does not otherwise compromise the security of any Personal Data processed by Lightning AI) to allow Customer to meet its obligations under the Applicable Data Protection Laws to report the Personal Data Breach. Lightning AI's notification of or response to a Personal Data Breach shall not be construed as Lightning AI's acknowledgment of any fault or liability with respect to the Personal Data Breach.

Certain items of software may be provided to Customer with the Services and are subject to "open source" or "free software" licenses ("Open Source Software"). Some of the Open Source Software is owned by third parties. The Open Source Software is not subject to the terms and conditions of Sections 2.2.1 or 8. Instead, each item of Open Source Software is licensed under the terms of the license that accompanies such Open Source Software. Nothing in this Agreement limits Customer's rights under, or grants Customer rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Lightning AI makes such Open Source Software, and Lightning AI's modifications to that Open Source Software, available by written request at the notice address specified below.

Customer hereby grants to Lightning AI a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the Services. Grid will not identify Customer as the source of any such feedback.

Subject to Section 5.3, all information disclosed by one party ("Disclosing Party") to the other party (the "Receiving Party") during the term of this Agreement, whether oral, written, graphic or electronic (the "Confidential Information"). The Services, Documentation, and all enhancements and improvements thereto shall be Confidential Information of Lightning AI. All data provided by Customer to Lightning AI to enable provision and performance of the Services shall be Customer's Confidential Information.

The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not permitted by this Agreement, and will disclose the Confidential Information of the Disclosing Party only to employees or contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and are under a duty of confidentiality no less restrictive than the Receiving Party's duty hereunder. The Receiving Party will protect the Disclosing Party's Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.

The Receiving Party's obligations under Section 5.2 with respect to Confidential Information of the Disclosing Party will not apply to any information that: (a) was already known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party's Confidential Information. In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order or a court of similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party's reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.

Lightning AI represents and warrants to Customer, that during the term of any paid subscription, the Services will perform in accordance with their Documentation in all material respects. In the event of any breach of the foregoing, Lightning AI as its sole obligation and as Customer's sole remedy, will use commercially reasonable efforts to fix and/or repair the non-conforming Services.

Customer represents and warrant to Lightning AI that (a) Customer has the authority to enter into this agreement personally (if Customer is an natural person), or on behalf of the entity entering into this agreement, and to bind that entity, (b) the Customer Models do not and will not infringe upon any third party's Intellectual Property Rights, (c) the Customer Models do not contain any viruses, worms or other malicious computer programming codes intended to damage Lightning AI's system or data, and (d) Customer will not use the Service to promote or conduct any unlawful activity.

EXCEPT AS SET FORTH HEREIN, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES, DOCUMENTATION, AND SERVICES ARE PROVIDED "AS IS," AND LIGHTNING AI MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, COURSE OF DEALING, TRADE USAGE OR PRACTICE, MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SERVICES, DOCUMENTATION, OR SERVICES (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO CUSTOMER BY LIGHTNING AI. LIGHTNING AI DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICES AND SERVICES SHALL BE UNINTERRUPTED, SECURE, OR ERROR-FREE. SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR CONDITIONS OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CUSTOMER.

TO THE EXTENT LEGALLY PERMITTED UNDER APPLICABLE LAW, NEITHER LIGHTNING AI NOR ITS SUPPLIERS SHALL BE LIABLE TO CUSTOMER, FOR ANY SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, BUT NOT LIMITED TO DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, REVENUE, GOODWILL, PRODUCTION OR USE, BUSINESS INTERRUPTION, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN CONNECTION WITH LIGHTNING AI'S PERFORMANCE HEREUNDER OR THE USE, MISUSE, OR INABILITY TO USE THE SERVICES, DOCUMENTATION, SERVICES OR OTHER PRODUCTS OR SERVICES HEREUNDER, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF LIGHTNING AI HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.

THE MAXIMUM LIABILITY OF LIGHTNING AI ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, INCLUDING THE PERFORMANCE OF ITS INDEMNIFICATION OBLIGATIONS, SHALL NOT EXCEED THE FEES PAID (AS EXPRESSLY IN U.S. DOLLARS AT THE TIME OF THE PAYMENT) BY CUSTOMER TO LIGHTNING AI DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY, IF THE AGREEMENT HAS BEEN IN EFFECT ONE YEAR OR MORE. IN NO EVENT SHALL LIGHTNING AI'S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. NOTHING IN THIS AGREEMENT SHALL LIMIT OR EXCLUDE LIGHTNING AI'S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF LIGHTNING AI OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION AND EXCLUSION MAY NOT APPLY TO CUSTOMER.

The parties agree that the limitations of liability set forth in this Section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy. The parties acknowledge that the prices have been set and the Agreement entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties.

Subject to the terms herein, Lightning AI will (1) defend, or at its option settle, any suit filed by a third party (a "Suit") against Customer to the extent such Suit claims that Customer's use of the Lightning AI Property as permitted in this Agreement constitutes Customer's infringement or misappropriation by Customer of a third party's intellectual property rights; and (2) pay (i) any final judgment or award directly resulting from such Suit or (ii) those damages agree to by Lightning AI in a monetary settlement of such Suit. If any portion of the Services becomes, or in Lightning AI's opinion is likely to become, the subject of a claim of infringement, Lightning AI may, at Lightning AI's option: (a) procure for Customer the right to continue using the Services; (b) replace the Services with non-infringing Services which do not materially impair the functionality of the Services; (c) modify the Services so that it becomes non-infringing; or (d) terminate this Agreement and refund any fees actually paid by Customer to Lightning AI for the remainder of the term then in effect, and upon such termination, Customer will immediately cease all use of the Documentation, and Services. Notwithstanding the foregoing, Lightning AI shall have no obligation under this section or otherwise with respect to any infringement claim that would not have arisen but for (x) any use of the Services not in accordance with this Agreement or as specified in the Documentation; (y) any use of the Services in combination with other products, equipment, services or data not supplied by Lightning AI; or (z) any modification of the Services by any person other than Lightning AI or its authorized agents (collectively, the "Exclusions" and each, an "Exclusion"). This subsection states the sole and exclusive remedy of Customer and the entire liability of Lightning AI, or any of the officers, directors, employees, shareholders, contractors or representatives of the foregoing, for infringement claims and actions.

Customer will (1) defend at its expense any Suit brought against Lightning AI, and (2) pay any settlement Customer makes or approves, or any damages finally awarded in such Suit, insofar as such Suit is based on a claim arising out of or relating to (i) an Exclusion; (ii) Customer's breach or alleged breach of any of Customer's representations or warranties herein; or (iii) an allegation by a third party that the Customer Models infringe or misappropriate such third party's intellectual property rights.

The indemnifying party's obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.

This Agreement will begin on the Effective Date and continue in full force and effect as long as any Order Form remains in effect, unless earlier terminated in accordance with the Agreement. Unless otherwise stated in the applicable Order Form, the Order Form will continue in full force and effect for one (1) year ("Initial Order Term"), unless earlier terminated in accordance with the Agreement. Thereafter, the Order Form will automatically renew for additional terms of one (1) year (each, a "Renewal Order Term" and together with the Initial Order Term, the "Order Term")), unless either party gives written notice of non-renewal to the other party no later than thirty (30) days prior to the expiration of the then-current Initial Order Term or Renewal Order Term.

If there are no outstanding Order Forms, either party may terminate this Agreement for any reason upon thirty (30) days' prior written notice to the other. Neither party may terminate an Order once it has been executed, other than by mutual consent or termination of this Agreement for material breach as set forth below. Either party may terminate this Agreement or any Order Form immediately upon notice to the other party if the other party materially breaches this Agreement or the applicable Order Form, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.

Expiration or termination of this Agreement will automatically terminate all active Orders, but termination of a single Order will not result in termination of this Agreement or any other Orders. Upon the expiration or termination of this Agreement or an Order all rights and licenses granted by Company to Customer under this Agreement or the applicable Order will terminate. Either party's termination of this Agreement is without prejudice to any other remedies it may have at law or in equity, and does not relieve either party of breaches occurring prior to the effective date of termination. Neither party will be liable to the other for damages arising solely as a result of terminating this Agreement in accordance with its terms. Unless Customer terminates this Agreement for material breach, if this Agreement expires or is terminated: (1) Company will not refund Customer any fees paid in advance of such expiration or termination, including pre-paid fees; and (2) within ten (10) days after such expiration or termination, Customer shall pay Company all remaining Fees set forth under any terminated Order Forms so that Company is paid the full annual amount agreed to at the commencement of such Order Term (as if the Order Term had run its full course). Customer's payment obligations and Sections 1, 3, 4, 5, 6, 7, 8, 9 and 10 shall survive the termination of this Agreement.

This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New York, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The laws of the jurisdiction where Customer is located may be different from New York law. Customer shall always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its access to and use of the Services and/or Documentation.

All disputes, controversies or differences arising between the parties arising from or in relation to or in connection with this Agreement, or the breach thereof, which fails to be amicably settled by the parties within thirty (30) days after either party provides the other party notice thereof, will be referred to arbitration in accordance with the Commercial Arbitration Rules of JAMS before a single arbitrator jointly selected by the parties or, if the parties are unable to agree, by JAMS. The arbitration hearings will be conducted in the English language and will take place in New York, NY. Any written evidence originally in a language other than English will be submitted in English translation accompanied by the original or true copy thereof. The English language version will control. Each party shall bear its own attorney's fees, costs, and disbursements arising out of the arbitration, and shall pay an equal share of the fees and costs of the administrator and the arbitrator; provided, however, the arbitrator shall be authorized to determine whether a party is the prevailing party, and if so, to award to that prevailing party reimbursement for its reasonable attorneys' fees, costs and disbursements, and/or the fees and costs of the administrator and the arbitrator. Judgment on the award of the arbitrator may be entered by any court of competent jurisdiction. By agreeing to this binding arbitration provision, the parties understand that they are waiving certain rights and protections which may otherwise be available if a claim between the parties were determined by litigation in court, including the right to seek or obtain certain types of damages precluded by this provision, the right to a jury trial, certain rights of appeal, and a right to invoke formal rules of procedure and evidence. Notwithstanding the foregoing, each party may proceed directly to any court of competent jurisdiction to seek protection or enforcement of its Intellectual Property Rights, Confidential Information, and/or to seek injunctive relief or other equitable relief.

Where Lightning AI requires that Customer provide an email address, Customer is responsible for providing Lightning AI with its most current email address. In the event that the last email address Customer has provided to Lightning AI is not valid, or for any reason is not capable of delivering to Customer any notices required/permitted by this Agreement, Lightning AI's dispatch of the email containing such notice will nonetheless constitute effective notice. Customer may give Lightning AI notice at the following address: 50 West 23rd St, Suite 702, New York, NY 10010. Such notice will be deemed given when received by Lightning AI by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.

This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and Lightning AI.

The communications between Customer and Lightning AI use electronic means, whether Customer or Lightning AI communicates with the other via email. For contractual purposes, Customer (1) consents to receive communications from Lightning AI in an electronic form; and (2) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Lightning AI provides to Customer electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect Customer's statutory rights.

Lightning AI may list the Customer's name and logo on Lightning AI's website and in Lightning AI's marketing materials as a user of Lightning AI and its Services, name Customer as a reference for Lightning AI, produce and publish a case study regarding Customer's use of the Services and issue a mutually acceptable press release (collectively, the "Marketing Activities"). Customer hereby grants to Lightning AI a non-exclusive, non-transferable license to use Customer's trademarks in the performance of such Marketing Activities.

If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Customer shall not assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of Lightning AI, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement shall be binding upon the parties and their respective successors and permitted assigns. Any delay in the performance of any duties or obligations of either party (except the payment of amounts owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible. Customer's relationship to Lightning AI is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Lightning AI.

This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.