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Qualia Vendor Network Agreement

This Qualia Vendor Marketplace Agreement (this “Agreement”) is entered into as of the date you click “Sign Up” (the “Effective Date”) by and between Qualia Labs, Inc., with an office at 564 Market Street, Suite 400, San Francisco, CA 94104-5412 (“Qualia”), and you (“Vendor” or “you”). Qualia and Vendor are each individually referred to herein as a “Party” and both entities are collectively referred to herein as the “Parties.” By clicking “Sign Up” or otherwise accessing or using the Vendor Marketplace (as defined below), you agree to be bound by this Agreement. If you do not agree to this Agreement, do not access or use the Vendor Marketplace. This is a legally enforceable contract.

ARTICLE 1 VENDOR MARKETPLACE

1.1 Service. Vendor hereby authorizes Qualia to market and sell (or otherwise distribute or make available) any service, platform or application described in Vendor’s designated profile (the “Profile”) in the Vendor Marketplace (as defined below) (collectively, the “Service”). This Agreement entitles Qualia and/or End Users (as defined below) to submit orders to Vendor via the Vendor Marketplace For the purposes of this Agreement, “Deliverable” means any Service-related product, report or service produced or delivered by, or ordered from, Vendor for End Users, including without limitation all items described in the Profile. The Service and Deliverables shall be available to End Users (via the Vendor Marketplace) in the territories listed in the Profile.

1.2 Obligations of Qualia.

1.2.1 Following deployment in a production capacity, in Qualia’s discretion, of the Vendor Marketplace (as defined below), Qualia will:

1.2.1.1 provide first line support to Qualia’s clients (each, an “End User”) regarding the Vendor Marketplace;

1.2.1.2 provide pricing and billing data to End Users regarding the Service and Deliverables;

1.2.1.3 pass through to Vendor, on a monthly basis, applicable payments received by Qualia from End Users for Deliverables ordered via the Vendor Marketplace by End Users, as further described in Article 2 below; and

1.2.1.4 provide access to the Service to End Users (without requiring such End Users to register or connect directly with Vendor or the Service) pursuant to the License (as defined below), provided that Qualia may reject or remove access to the Service (or any Deliverables or content associated therewith), the Profile, or the Portal (as defined below) in Qualia’s absolute discretion.

1.2.2 Subject to the terms and conditions of this Agreement, Qualia hereby grants Vendor a limited, non-exclusive, non-transferable, non-sublicensable license to use the application programming interface provided hereunder by Qualia (the “API”) solely for the purpose and to the extent reasonably necessary to properly integrate Qualia’s proprietary platform and marketplace (the “Qualia Platform”) with the Service to enable the proper and secure submission and delivery of Deliverable orders (such integration activities, the “Integration” and the resulting integrated platform and marketplace, the “Vendor Marketplace”).

1.3 Obligations of Vendor.

1.3.1 Vendor hereby grants Qualia a non-exclusive license to (a) use the Service for Qualia’s internal business purposes; and (b) provide access to the Service (and any Deliverables or content associated therewith) to End Users via the Vendor Marketplace to be used by such End Users for their internal business purposes (collectively, the “License”).

1.3.2 Vendor will provide the Deliverables in accordance with the requirements set forth in the Profile, including any delivery times or other service level obligations therein, provided that Vendor may remove an item from the list of available Deliverables at any time as permitted via Vendor’s designated portal (the “Portal”) in the Vendor Marketplace.

1.3.3 Vendor will provide Qualia with ad-hoc and scheduled reports to monitor billing, order volume, and other business activities as needed or reasonably requested.

1.3.4 Vendor will diligently facilitate and assist Qualia in connection with the Deliverables and Vendor Marketplace and with fulfilling Qualia’s related obligations to End Users.

1.3.5 Vendor acknowledges that this Agreement extends and covers End Users, and End Users submitting orders to the Service will not need or be required to accept any additional terms or agreements to use the Service or receive any Deliverables.

1.3.6 Vendor acknowledges that the Vendor Marketplace will be the exclusive means for End Users to submit orders to the Service. Vendor will not market directly to Qualia’s current End Users in relation to any products or services that are competitive with or substantially similar to or substitutable for any Qualia products or services or otherwise encourage any such person to use any platform, application, website, portal, service or method (other than the Qualia Platform or the Vendor Marketplace) to order any product or service that would be a Deliverable if ordered via the Qualia Platform or the Vendor Marketplace. Except to the extent otherwise mutually agreed by the Parties in writing, neither Qualia nor End Users will need or be required to (a) directly access or use the Service (or any associated website or portal); or (b) maintain or use any passwords or other credentials associated with the Service.

1.3.7 Vendor will provide Service access, including order submission via the Vendor Marketplace, 24x7x365.

1.3.8 Vendor will provide accurate, complete and current information regarding the Service and Deliverables (including pricing details), which is not misleading, and Vendor will promptly update such information.

1.3.9 Vendor hereby agrees to, and shall at all times comply with and ensure that each of its employees, agents, subcontractors, consultants and other representatives complies with, the API Terms provided or made available by Qualia, and such terms are incorporated herein by reference.

1.3.10 Vendor will not display, distribute, copy or use any Qualia logo, trademark or other proprietary indicia (collectively, “Qualia Marks”), or any trademarks confusingly similar to any Qualia Marks, without Qualia’s prior written consent. Any permitted use of Qualia Marks shall be in accordance with any guidelines or restrictions provided or made available by Qualia. Vendor acknowledges Qualia’s ownership of Qualia Marks and the goodwill pertaining thereto, and Vendor agrees that all goodwill associated with use of any of the Qualia Marks by Vendor will enure entirely for the benefit of Qualia. Vendor will not register any Qualia Marks, or any trademarks confusingly similar to any Qualia Marks, in any jurisdiction.

ARTICLE 2 COMPENSATION

2.1 Pricing. Vendor shall maintain the pricing set forth in the Profile for Deliverable orders submitted to the Service via the Vendor Marketplace by an End User (or by Qualia on behalf of an End User). Such pricing is valid throughout the term of this Agreement, except that Vendor may update Deliverable pricing as permitted via the Portal. Vendor shall not directly or indirectly (via any means whatsoever) offer or provide any pricing or other material terms, regarding any Deliverable, which are more favorable than the applicable pricing and other terms offered to End Users via the Vendor Marketplace. Qualia shall not have any obligations to pay or reimburse Vendor, except as expressly set forth in this Agreement. Vendor shall be solely responsible and liable for any sales, use or other taxes related to any Deliverable orders submitted to the Service via the Vendor Marketplace.

2.2 Pass-through Payments. Qualia will use commercially reasonable efforts to collect from End Users and pass through to Vendor undisputed payments for applicable Deliverables ordered via the Vendor Marketplace within 30 days after the end of the calendar month in which such order is submitted via the Vendor Marketplace. Vendor hereby appoints Qualia as an agent of Vendor for the sole purpose of receiving payments from End Users for the Service or Deliverables. As between Vendor and an End User, such receipt of funds by Qualia from the End User is deemed the receipt of funds by Vendor.

2.3 Click Fee. Vendor will pay Qualia a fixed fee as specified in the Portal, which amount Qualia may change in its discretion with notice to Vendor, for each and every Deliverable order submitted to the Service via the Vendor Marketplace by an End User or by Qualia on behalf of an End User (“Click Fee”). The Click Fee will be automatically and immediately incurred upon the submission of an order to the Service via the Vendor Marketplace. Click Fees will be calculated on a monthly basis and deducted from the subsequent monthly pass-through payment from Qualia to Vendor. Vendor will maintain, and make reasonably available to Qualia, logs, books, records, and other documentation (including underlying calculations) sufficient to validate all Click Fees owed and paid.

ARTICLE 3 TERM AND TERMINATION

3.1 Term. The initial term of this Agreement is twelve (12) months, beginning on the Effective Date. This Agreement shall automatically renew for successive one (1) year terms unless either Party provides written notice of non-renewal to the other Party at least sixty (60) days prior to the end of current term.

3.2 Termination for Breach. If either Party breaches this Agreement and does not cure such breach within ten (10) business days (or such other mutually agreed period of time) after receipt of written notice specifying the breach, the non-breaching Party may terminate this Agreement upon written notice.

3.3 Termination for Insolvency. This Agreement shall terminate immediately, without notice, (a) upon the institution by or against either Party of insolvency, receivership or bankruptcy proceedings (which, if involuntary, are not dismissed within 30 days); (b) upon either Party's making an assignment for the benefit of creditors; or (c) upon either Party's liquidation, dissolution or ceasing to do business.

3.4 Termination for Convenience. Qualia may terminate or suspend this Agreement, in part or in whole (or any rights or obligations hereunder), at any time and for any or no reason. Qualia will use commercially reasonable efforts to promptly notify Vendor of any such termination.

3.5 Effect of Termination. Upon any termination of this Agreement, (a) each Party shall promptly return the other Party’s confidential information and materials that are in such Party’s possession; (b) each Party shall reasonably cooperate and assist the other Party with efforts to transition away from the Integration, including with respect to End Users and Deliverables; and (c) each Party shall pay to the other Party any outstanding amounts owed hereunder as of the effective date of such termination. Articles 2 and 4-7 and Section 3.5 and any rights or obligations of either Party that have accrued prior to termination as set forth herein, and the provisions of this Agreement useful for interpretation thereof, shall survive any termination of this Agreement.

ARTICLE 4 WARRANTIES; DISCLAIMER; LIMITATIONS OF LIABILITY

4.1 Warranties. Vendor represents, warrants, and covenants to Qualia and End Users that the Service and any associated Deliverables, reports or services (collectively, the “Services”) shall be provided and delivered in a professional and workmanlike manner, in accordance with this Agreement, any published specifications, and all applicable industry standards, service levels, laws, and regulations. Each Party represents, warrants, and covenants to the other Party that (a) it has the requisite power and authority to execute, deliver, and perform its obligations hereunder; (b) it does not need the consent or approval of any third party to enter into this Agreement nor will this Agreement result in a default or violation under any agreement to which it is a party; and (c) it is not a party to any agreement with a third party, the performance of which is reasonably likely to conflict with its ability to fully perform its respective obligations hereunder.

4.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, QUALIA DISCLAIMS ALL WARRANTIES, WHETHER IMPLIED, EXPRESSED, STATUTORY OR OTHERWISE, REGARDING OR RELATING TO THE QUALIA PLATFORM, THE VENDOR MARKETPLACE, THE API, ANY RELATED DOCUMENTATION OR ANY INFORMATION OR DATA ORDERED, PROCESSED, PROVIDED OR MADE AVAILABLE IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, QUALITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE OR THAT ANY PRODUCT, SERVICE, SOFTWARE OR PLATFORM WILL BE UNINTERRUPTED OR ERROR FREE.

4.3 Limitations of Liability. EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS OR ANY BREACH OF CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF PROFIT, REVENUE OR GOODWILL, ANY BUSINESS INTERRUPTION OR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE. EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE IN THE AGGREGATE IN EXCESS OF THE GREATER OF (X) $10,000 OR (Y) THE TOTAL AMOUNTS PAID BY QUALIA TO VENDOR UNDER THIS AGREEMENT DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS FIRST GIVING RISE TO THE CLAIM.

ARTICLE 5 INDEMNIFICATION

5.1 Indemnification by Vendor. Vendor shall defend, indemnify, and hold Qualia, its officers, directors, employees, agents and contractors harmless from and against any and all third party claims and proceedings, and all associated liability, loss and expense (including reasonable attorneys' fees), to the extent arising out of (a) the performance of the Services; (b) any actual or alleged infringement or violation of any third party intellectual property or other rights by the Services or the Vendor Marketplace (or by any other software or other materials provided or made available to Qualia by or on behalf of Vendor); or (c) a breach by Vendor of any material provision of this Agreement.

5.2 Indemnification by Qualia. Qualia shall defend, indemnify, and hold Vendor, its officers, directors, employees, agents and contractors harmless from and against any and all third party claims and proceedings, and all associated liability, loss and expense (including reasonable attorneys' fees), to the extent arising out of (a) any actual or alleged infringement or violation of any third party intellectual property rights by the Qualia Platform or the API, except to the extent arising from any modification thereto (unless Qualia made or expressly authorized such modification), any unauthorized use thereof or any combination thereof with any other product, service, software or other item or materials; or (b) a breach by Qualia of any material provision of this Agreement.

5.3 Indemnification Procedure. In connection with any claim subject to the indemnification obligations of this Article, each Party shall reasonably cooperate and the indemnifying Party shall not settle such claim without the indemnified Party’s prior written consent if such settlement would impose any liabilities or obligations on any indemnified individual or entity.

ARTICLE 6 INTELLECTUAL PROPERTY

6.1 Ownership by Vendor. As between Vendor and Qualia, Vendor shall own all right, title and interest in and to the Service, including any modifications or derivatives thereof and any intellectual property rights in or appurtenant to any of the foregoing.

6.2 Ownership by Qualia. As between Qualia and Vendor, Qualia shall own all right, title and interest in and to the Qualia Platform and the API, including any modifications or derivatives thereof and any intellectual property rights in or appurtenant to any of the foregoing.

6.3 Qualia Client Data. Vendor agrees that End Users grant Qualia certain rights to access and use any information or data (a) obtained, accessed, hosted or otherwise collected by Qualia from End Users; and/or (b) associated with or processed via or in connection with the Vendor Marketplace (collectively, “Qualia Client Data”). This Agreement does not in any way limit Qualia’s rights in, to or to use, distribute or otherwise exploit (and Vendor shall not in any way limit or restrict Qualia’s access to or use or distribution of) any Qualia Client Data. Notwithstanding anything to the contrary in this Agreement, Qualia shall not have any confidentiality obligations under this Agreement with respect to Qualia Client Data.

6.4 Freedom of Operation. Either Party may, at any time during or after the term of this Agreement, conduct any business or develop, sell or otherwise commercialize any products or services, even if such business, products or services are competitive with any business, products or services of the other Party, provided that such action does not violate the terms set forth in this Agreement.

6.5 Reservation of Rights. Each Party reserves all rights not expressly granted to the other Party under this Agreement.

ARTICLE 7 MISCELLANEOUS

7.1 Choice of Law. This Agreement shall be subject to, governed by, and construed in accordance with the laws of California without regard to its rules governing conflicts of law. Vendor consents and submits to the exclusive jurisdiction and venue over any action, suit, or other legal proceedings that may arise out of or in connection with this Agreement in the courts located in San Francisco, California, provided that either Party may seek preliminary injunctive relief in any court of competent jurisdiction for any breach or threatened breach of this Agreement relating to intellectual property rights or confidentiality obligations.

7.2 Confidentiality. Neither Party shall disclose, transfer or otherwise make available to any third party (other than to such Party's legal advisors and accountants who shall be bound by obligations no less restrictive than the terms of this Section) the terms of this Agreement (including, without limitation, pricing), or any other information disclosed or made available hereunder that is marked confidential by the disclosing Party or would otherwise be reasonably considered confidential (collectively “Confidential Information”). Each Party shall give access to Confidential Information solely to those employees and agents and affiliates with a need to have access thereto. Each Party shall take the same security precautions to protect against disclosure or unauthorized use of the Confidential Information that it takes with its own confidential information of a similar kind, which in no event shall be less than a reasonable standard of care. Neither Party shall be in breach of this provision if Confidential Information is: (a) disclosed with the other Party's prior written approval; (b) known to the general public through no breach of this Agreement (or any other agreement) by the receiving Party; (c) developed independently by the receiving Party without use of or reference to the Confidential Information; (d) received from a third party, which has the right to make such disclosure, without confidentiality restrictions; or (e) disclosed pursuant to any judicial or governmental request, requirement or order, provided that reasonable steps are taken to give the other Party sufficient prior notice in order to contest such request, requirement or order. Notwithstanding anything to the contrary in this Agreement, Qualia may disclose to End Users any information regarding this Agreement or any reseller, vendor marketplace or distribution activities related to Qualia, which disclosure Qualia reasonably deems necessary or appropriate. Vendor shall disclose to End Users, as reasonably directed by Qualia, information regarding this Agreement or any reseller, vendor marketplace or distribution activities related to Qualia.

7.3 Notices. All notices to either Party shall be in writing and delivered by hand or by certified mail or overnight delivery service to the address set forth by Vendor or Qualia or to such other address as either Party shall give by notice to the other Party. Notices shall be effective when delivered in accordance with the foregoing.

7.4 Independent Contractors. The relationship of Qualia and Vendor established by this Agreement is that of independent contractors, and nothing contained in this Agreement shall be construed to: (a) establish an employer employee relationship between Qualia and Vendor; (b) give either Party the power to direct and control the day-to-day activities of the other; or (c) constitute the Parties as partners, joint venturers, co-owners or otherwise as participants in a joint or common undertaking. The Parties acknowledge and agree that neither Party is under any obligation to direct any individual or entity regarding, or otherwise facilitate, the purchase of or subscription to the other Party’s (or any of its affiliates’ or related persons’) products or services, and that any such activity shall be based on such Party’s independent discretion and judgment and not based on the expected receipt of any Reward or any additional or subsequent compensation or business. During the term of this Agreement, Qualia may identify itself as a reseller or distributor of the Service (and Deliverables) and use Vendor’s name, trademarks and other proprietary indicia as reasonably necessary or appropriate, subject to standard trademark usage guidelines provided by Vendor to Qualia, in connection with this Agreement (including in relation to the Service, Deliverables, Qualia Platform and Vendor Marketplace).

7.5 Force Majeure. Each Party shall not be in breach of this Agreement to the extent resulting from any cause beyond its reasonable control and not resulting from its negligence.

7.6 No Waiver. No term or provision hereof will be considered to have been waived by either Party, and no breach consented to by either Party, unless such waiver or consent is in writing and is signed by the Party against whom the waiver or consent is asserted. No consent to or waiver of a breach by either Party will constitute a consent to, waiver of, or excuse for any other, different, or subsequent breach by such Party.

7.7 Entire Agreement. This Agreement, including the API Terms which are incorporated herein by reference, constitutes the entire agreement between the Parties with respect to the subject matter hereof. This Agreement supersedes all prior or simultaneous representations, discussions, negotiations, letters, proposals, agreements and understandings between the Parties with respect to the subject matter hereof and thereof, whether written or oral. Nothing in this Agreement is intended to confer benefits, rights or remedies unto any person other than the Parties and their permitted successors and assigns, and no third party shall have the right to enforce the provisions of this Agreement.

7.8 Amendment. From time to time, in Qualia’s sole discretion, Qualia may amend the terms and conditions of this Agreement. Such changes will become effective once made by Qualia but will not apply retroactively. If a change is material, in Qualia’s reasonable discretion, Qualia will notify Vendor. By continuing to use or access the Vendor Marketplace, Vendor agrees to be bound by the amended terms of this Agreement. No other change of any of the provisions hereof shall be effective unless and until set forth in a writing duly signed by an officer of Qualia and by Vendor.

7.9 Assignment. Neither Party may assign or subcontract this Agreement, or any rights or obligations hereunder, by operation of law or otherwise, without the prior written consent of the other Party, and any purported assignment or transfer in violation of the foregoing is void. Notwithstanding the foregoing, Qualia may assign its rights hereunder (a) to any of its affiliates; (b) in connection with a sale of all or substantially all of its assets or stock; or (c) in connection with a merger or other corporate reorganization. Subject to the foregoing, all of the terms, conditions and provisions of this Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of the respective Parties.

7.10 Severability. If any term of provision of this Agreement, or the application thereof shall be found invalid, void or unenforceable by any government or governmental organization having jurisdiction over the subject matter, the remaining provisions, and any application thereof, shall nevertheless continue in full force and effect.

7.11 Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original as against the Party whose signature appears thereon, but all of which taken together shall constitute but one and the same instrument.

API TERMS

1. GENERAL. These terms and conditions (these “API Terms”) govern your access to and use of any application programming interface or email integration system and any related documentation (collectively, the “API”) that Qualia Labs, Inc. (together with our affiliates, “Qualia”, “us”, “we” or “our”) may provide or make available to you in order to allow you to integrate your service, platform or application (collectively, “Service”) with our proprietary platform (the “Qualia Platform”) in the support of our clients (each, an “End User”). By accepting these API Terms, either (i) by clicking a box indicating your acceptance; (ii) by your signature below; or (iii) by accessing or using the API, you agree to the terms and conditions contained herein and acknowledge that these API Terms supersede any prior or contemporaneous terms and conditions, including any terms or conditions you may provide, and any such additional or different terms or conditions shall have no force or effect. You hereby consent to receiving any notices and communications from us electronically in connection with these API Terms.

2. API LICENSE; RESPONSIBILITIES; RESTRICTIONS

2.1. API License. Subject to the terms of these API Terms, we grant you a limited, non-exclusive, non-transferable, non-sublicensable license while these API Terms are in effect to access and use the API solely for the purpose and to the extent reasonably necessary to integrate your Service with the Qualia Platform to enable the proper and secure submission and delivery of orders to End Users via such integration.

2.2. Responsibilities. You shall, and shall cause any other individual or entity (“Person”) acting on your behalf to, (i) comply with any applicable laws, regulations, industry standards and third party rights in connection with your access to and use of the API; (ii) use commercially reasonable and diligent efforts and measures to protect information collected by your Service, including personally identifiable information, from unauthorized access or use (including through the maintenance of a commercially reasonable, accurate and not misleading privacy policy describing such principles) and will promptly report to Persons using your Service, in accordance with applicable law and in consultation and coordination with us, details of any unauthorized access or use of such information; (iii) display any attribution(s) required by us and use our trade names, trademarks, service marks, logos and other proprietary indicia (collectively, “Qualia Marks”), solely to the extent expressly authorized by us in writing, in accordance with these API Terms (and all applicable Qualia guidelines) and only for the purpose of fulfilling your obligations under this subsection; and (iv) not make any statement regarding your use of the API which suggests partnership with, sponsorship by, or endorsement by us without our prior written consent.

2.3. Restrictions. You shall not, and shall not permit any other Person to, access or use the API except as expressly authorized in these API Terms. For purposes of clarity and without limiting the generality of the foregoing, you shall not, nor permit any other Person to: (i) copy, download, modify or distribute the API in any time-sharing, service bureau, software as a service, cloud or other technology or service; (ii) sublicense or otherwise assign, transfer or make available the API for use by any Person (other than the End User); (iii) reverse engineer, disassemble, modify, decompile, decode, adapt or otherwise attempt (x) to derive or gain access to the source code of the API or any related software, (y) to re-identify methodologies or processes used therein or (z) to extract any ideas, algorithms or procedures therefrom, in each case in whole or in part; (iv) bypass or breach any security device or protection used by the API or access or use the API or Qualia Platform other than as expressly authorized in these API Terms; (v) input, upload, transmit or otherwise provide to or through the API or Qualia Platform any information or materials that are unlawful or injurious or any virus, worm, malware or other malicious computer code designed to disrupt, disable or harm the API or Qualia Platform; (vi) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede, harm or materially alter the functionality of the API, Qualia Platform, related systems or our provision of services to the End User or any third party, in whole or in part; (vii) access or use the API or Qualia Platform (or any related systems, software, hardware, data, materials or services) in any manner or for any purpose that infringes, misappropriates or otherwise violates any intellectual property right or other right of any third party or that violates any applicable law or that is obscene, defamatory, harassing, harmful or otherwise inappropriate or unauthorized; (viii) remove, delete, alter or obscure any of our trademarks, specifications, documentation, terms, warranties or disclaimers, or any intellectual property or proprietary rights notices; or (ix) access or use the API or Qualia Platform, or related materials, for purposes of competitive analysis of the Qualia Platform, the development, provision or use of a competing software service or product or any other purpose that is to our detriment or commercial disadvantage (for the avoidance of doubt, you will not create any application programming interface or associated tools and documentation that function substantially the same as the API or offer the same for use by third parties (including the End User)).

2.4. Third Party Content. The API may contain third party content (such as text, images, videos, audio, or software), which is the sole responsibility of the Person that makes it available. While we may review third party content, we assume no responsibility to determine whether it is illegal, offensive or violates these API Terms or it is subject to third party intellectual property rights and may remove or refuse to display certain content. Unless expressly permitted by the content owner or by applicable law, you will not, and will not permit and Person acting on your behalf to, (i) scrape, build databases, or otherwise create permanent copies of such content, or keep cached copies longer than permitted by the cache header; (ii) copy, translate, modify, create a derivative work of, sell, lease, lend, convey, distribute, publicly display, or sublicense such content to any third party; (iii) misrepresent the source or ownership of such content; or (iv) remove, obscure, or alter any copyright, trademark, or other proprietary rights notices; or falsify or delete any author attributions, legal notices, or other labels of the origin or source of material of such content.

3. PROPRIETARY RIGHTS; CONFIDENTIALITY

3.1. Ownership. As between you and us, we own all right, title and interest, including all intellectual property rights, in and to the API, Qualia Platform, Qualia Marks and any Confidential Information provided hereunder, together with all improvements, enhancements or modifications thereto (including as a result of any suggestion, enhancement request, recommendation, correction or other feedback thereto provided by you, for which we shall have no obligation to you) (collectively, “Qualia Materials”). Except for the express license and limited use rights granted in these API Terms, we do not grant you any right, title or interest in or to any Qualia Materials.

3.2. Confidential Information. For purposes of these API Terms, “Confidential Information” means any information disclosed or made available by us to you, regardless of format or medium, including any financial information, technical and non-technical data, services, products, processes, operations, reports, analyses, test results, technology, specifications, protocols, performance standards, know-how, methodologies, trade secrets, trade practices, marketing plans and materials, strategies, forecasts, research, concepts, ideas, and names, addresses and any other characteristics or identifying information of our existing or potential licensors, suppliers, customers or employees or any information derived from any of the foregoing; provided that such information is either (i) clearly designated as “Confidential” in writing (if communicated in writing) or at the time of disclosure (if disclosed orally or visually) or (ii) of the nature or type, or disclosed under circumstances, which should reasonably be regarded as confidential. Our Confidential Information includes the Qualia Materials and any data or personally identifiable information regarding or associated with End Users (collectively, “End User Data”). Confidential Information shall not include any information, other than End User Data, which (i) is or becomes available to the public other than as the consequence of a breach of these API Terms; (ii) is actually known to you or in your possession without any limitation on use or disclosure prior to receipt from us; (iii) is rightfully received without confidentiality restrictions from a third party in possession of such information who is not under obligation to us not to disclose the information; or (iv) is independently developed by you without use of or reference to the Confidential Information. The burden of proving the applicability of these exceptions shall be on you.

3.3. Non-Disclosure of Confidential Information. You shall (i) hold in strict confidence and trust all Confidential Information, using the same degree of care that you use to protect the confidentiality of your own confidential information of similar type, and in any event no less than a reasonable degree of care; and (ii) not disclose, sell, rent or otherwise provide or transfer, directly or indirectly, any Confidential Information to any Person without our prior written consent, except that you may disclose Confidential Information to your or your affiliates’ employees, agents, contractors, legal counsel and accountants who need to know such information, only to the extent reasonably necessary, consistent with the obligations of the parties under these API Terms and who are bound by confidentiality obligations no less stringent than those set forth in these API Terms. You may use the Confidential Information only as expressly authorized in these API Terms and not for any other purpose. You shall require any of your employees or representatives who obtain Confidential Information to comply with these API Terms and shall be responsible for any breach of these API Terms by such employees or representatives.

3.4. Compelled Disclosure. Notwithstanding the foregoing, you shall be permitted to disclose Confidential Information pursuant to a court order, government order or any other legal requirement of disclosure, or pursuant to the listing rules of any stock exchange to which such party is subject, in each case if no suitable protective order or equivalent remedy is available; provided that, to the extent permitted, you give us written notice of such court order, government order, legal requirement or listing rule requiring disclosure immediately upon knowledge thereof and allow us a reasonable opportunity to seek to obtain a protective order or other appropriate remedy prior to such disclosure to the extent permitted by law; and further provided that you shall furnish only that portion of the Confidential Information which you are advised by a written opinion of counsel is legally required, and will exercise your best efforts to obtain a protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information so disclosed.

4. TERMINATION

4.1. Termination. You may stop using the API at any time with or without notice; provided, however, that in order to terminate these API Terms, you must provide us with prior written notice and upon termination, cease your use of the API. We reserve the right to terminate these API Terms or discontinue the API or any portion or feature or your access thereto for any reason and at any time without liability or other obligation to you. You shall promptly notify us if at any point you cease providing your Service to End Users.

4.2. Effect of Termination. Upon any termination of these API Terms or the discontinuance or suspension of your access to the API, (i) all rights and licenses granted to you will terminate immediately; (ii) you will immediately stop using the API and Qualia Marks; and (iii) you will immediately delete and destroy any Confidential Information in your possession or control and any cached or stored content that was permitted under Section 2.4 (and, upon our request, certify such destruction in writing, which certification shall include representations that (x) describe the nature and scope of the efforts undertaken to remove/expunge the information and (y) certify that the information is no longer accessible or usable by you).

4.3. Suspension. In addition to any other remedies we may have, in lieu of termination, we may elect to immediately suspend your access in the event of our belief in good faith after reasonable inquiry that you (i) breached any of Section 2, Section 3 or Section 7.2 (Monitoring), or (ii) are engaged in fraudulent, harmful or unlawful activities.

4.4. Surviving Provisions. All provisions of these API Terms that by their nature should survive termination will survive termination, including accrued rights to payment, ownership, confidentiality obligations, warranty disclaimers and limitations of liability.

5. DISCLAIMER OF WARRANTIES; LIABILITY

5.1. Disclaimer of Warranties. THE API AND ALL OTHER MATERIALS AND INFORMATION PROVIDED BY US UNDER THESE API TERMS ARE PROVIDED ON AN “AS IS” AND “AS-AVAILABLE” BASIS WITH NO WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, WE DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, ACCURACY OF DATA, AND NONINFRINGEMENT. FOR THE AVOIDANCE OF DOUBT, WE DO NOT WARRANT THAT THE API WILL FUNCTION WITHOUT INTERRUPTION OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE API.

5.2. Force Majeure. Qualia shall not be responsible or liable for any delay or failure resulting from any events, circumstances or causes beyond Qualia’s reasonable control.

5.3. Excluded Damages. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER WE NOR ANY OTHER PERSON WHO HAS CONTRIBUTED TO THE DESIGN, DEVELOPMENT OR DEPLOYMENT OF THE API, SHALL BE LIABLE FOR ANY (I) INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES; (II) LOST BUSINESS OR ANTICIPATED SAVINGS, LOST PROFITS, LOST GOODWILL OR DIMINUTION IN VALUE; OR (III) LOST, DAMAGED, CORRUPTED OR INACCURATE DATA, WHETHER FORESEEABLE OR NOT, ARISING OUT OF OR IN CONNECTION WITH THE API, QUALIA PLATFORM OR THESE API TERMS, EVEN IF WE HAVE BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

5.4. Maximum Liability. To the fullest extent permitted under applicable law, our total liability, if any, for any and all claims arising out of or in connection with providing you access to and use of the API shall not exceed $500 USD.

6. INDEMNIFICATION. To the fullest extent permitted under applicable law, you agree to defend, indemnify and hold harmless us and any other Person who has contributed to the design, development or deployment of the API, and our and their respective directors, officers, employees, agents, shareholders, suppliers and consultants, against all liabilities, damages, losses, costs, fees (including legal fees), and expenses relating to any allegation or third-party legal proceeding to the extent arising from or related to (i) your use of the API or Qualia Platform other than as expressly authorized in these API Terms; (ii) sales, value-added, use, excise or other taxes, duties, fees, levies or other governmental charges arising from your business transactions; (iii) a violation of any law or regulation governing, or of any intellectual property or other rights by, your goods, services, software or other materials; or (iv) your breach of these API Terms or any unlawful conduct by you or on your behalf.

7. MISCELLANEOUS

7.1. Entire Agreement; Amendment. These API Terms are the complete and exclusive agreement between us and you concerning the subject matter of these API Terms and supersedes any and all prior or contemporaneous proposals, agreements, verbal or written, and may not be modified except in writing, signed by both parties. These API Terms shall take precedence over any additional or different terms and conditions you may provide, to which notice of objection is hereby given.

7.2. Monitoring. You acknowledge that (i) we may monitor use of the API to ensure quality, improve our offerings and verify your compliance with these API Terms, and agree not to interfere with this monitoring; (ii) this monitoring may include our accessing and using your Service to identify security issues that could affect us or End Users; (iii) we may use any technical means to overcome any interference identified by this monitoring.

7.3. Waiver; Severability. The failure to enforce at any time the provisions of these API Terms or to require at any time performance by the other party of any of the provisions of these API Terms shall in no way be construed to be a waiver of such provisions or rights. If any provision of these API Terms is held to be invalid or unenforceable by a judicial or regulatory authority, the meaning of such provision shall be construed, to the extent feasible, so as to render the provision enforceable. If no feasible interpretation would save the provision, it shall be severed and the remainder shall not be affected and shall be enforced as nearly as possible according to its original terms and intent.

7.4. Governing Law. These API Terms shall be construed and governed in accordance with the laws of the State of California, excluding its conflict of laws provisions.

7.5 Equitable Relief. You acknowledge that any breach of Section 2 or Section 3 may irreparably harm us, that the damages suffered by us as a result of such breach will be difficult to ascertain, and that we may not have an adequate remedy at law for such breach. You agree and consent that in the event of such actual or threatened breach, we shall be entitled, without posting bond, in addition to all other rights and remedies to which we may be entitled, to obtain injunctive or other equitable relief.

By agreeing to these API Terms, you intend to be legally bound as of the Effective Date.