Terms of Use

The Terms of Use herein (the “Agreement”) is made and entered into by and between Miso Technologies, Inc. (“Miso”) and the customer who wishes to integrate the Miso Services into their own commercial or business offerings (“Customer”, Miso and Customer each a “Party,” or together the “Parties”). This Agreement is effective as of the date of Customer’s agreement to the same, communicated to Miso by the acceptance of these terms in the signup process, which may be done online or offline through written agreements that reference this Agreement. If you are accepting on behalf of Customer, you represent and warrant that: (i) you have full legal authority to bind Customer to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Customer, to this Agreement. This Agreement governs Customer’s access to and use of the Service.

WHEREAS, Miso provides artificial-intelligence powered personalized search, recommendation, and summarization services that can be integrated into product and content offerings of Customer or on Customer’s external or internal web locations (the “Services”); and

WHEREAS, Customer wishes to integrate the Services into its product offerings so that its End Users may access and interact with Customer’s Repositories in a manner benefiting both the End User and Customer.

NOW THEREFORE, the parties agree to the following:

1. Privacy Statements.

Miso believes that each Customer should have ownership and control over its Content. In furtherance of this belief, Miso has constructed its platform and Services to segregate and protect Customer’s Content. Miso separates Customer’s Content from its other service databases and creates individual versions of the Miso Services used to learn from and provide insight into Customer’s Content so that other customers of Miso will not have insight into Customer’s Content. Stated another way, unlike services provided from other companies, Customer’s Content will not be used as Miso’s training data unless you give us express permission to do so. In addition, upon termination of an engagement with Miso, Miso’s access to Customer’s Content will be removed and Customer’s customized version of the Miso’s Services that were trained on Customer’s Content will be purged from Miso’s system.

2. Provision of the Services.

Use of the Services. Subject to this Agreement and any limitations set out in any Service Plan selected by the Customer, Customer may, during the Term: (a) use the Services, and (b) integrate the Services into any Application that has material value independent of the Services and provide the Services, solely as integrated into that Application, to End Users. Customer may not sublicense or transfer these rights except as permitted under the Assignment section of the Agreement.

Customer Repositories. The Miso Services permit End Users to engage with Customer’s Content in Customer’s Repositories in certain augmented ways. Customer therefore authorizes Miso to connect the Services to its Repositories and to provide the Content of such Repositories to the End User and grants Miso a worldwide, royalty-free license to use, present, display, and otherwise provide such Content to Customer’s End Users in connection with the provision of the Services.

Limitations on Use. Customer shall not, and shall not permit any End User to, access, view or use the Services in any of the following ways (“Prohibited Uses”):

1. distribute in any medium, publicly display, publicly perform, communicate to the public, or create derivative works from any part of the Services without our prior written authorization, unless Miso makes available the means for limited distribution through functionality offered on the Services;
2. alter, copy, modify, reverse engineer, reproduce, deface, tarnish, mutilate, hack, interfere with, or otherwise use and exploit the Services in a way so as to exceed any Service Limitations placed on Customer or to circumvent this Agreement in any way;
3. use the Services for any uses without our express written approval that are not otherwise contemplated by this Agreement, or rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Services to any person (other than End Users as permitted and authorized hereunder), including on or in connection with the internet or any time-sharing, service bureau, software as-a-service, cloud or other technology or service;
4. use, permit the use of, or launch any automated system, including, without limitation, “robots,” “spiders,” or “offline readers,” that accesses the Services in a manner that sends more API Calls in a given period of time than a human can reasonably produce in the same period
5. use any software, technology or device to collect, scrape, crawl, manipulate or harvest any Behavioral Insights, End User Data or other data, including account names, from the Services;
6. use the Services in connection with any Repositories which contain any information that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously or otherwise objectionable and offensive, or that are designed to harass, abuse or harm another person or group;
7. provide false or inaccurate information (or information that is misleading or incomplete or intended to deceive any person) when registering for a user account, or interfere or attempt to interfere in any way with the proper functioning of the Services;
8. attempt to circumvent, disable or otherwise interfere with security-related features of the Services or features that prevent or restrict use or copying of any Content;
9. use the Services for any unlawful purpose or for the promotion of illegal activities;
10. access or use the Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable law;
11. access or use the Services for purposes of competitive analysis of the Services, the development, provision or use of a competing software service or product or any other purpose that is to Miso’s detriment or commercial disadvantage;
12. remove or otherwise alter any markings denoting Miso’s Intellectual Property Rights in the Services, or otherwise access or use the Services beyond the scope of the authorization to use the Services granted hereunder.

The Services may contain technological measures designed to prevent unauthorized or illegal use of the Services. Customer acknowledges and agrees that Miso may use these and other lawful measures to verify Customer’s compliance with the terms of this Agreement and enforce Miso’s rights, including all Intellectual Property Rights, in and to the Services.

New Features. Miso may make new applications, tools, features or functionality available from time to time through the Services (“New Features”), the use of which may be contingent upon Customer’s agreement to additional and/or different terms. Following Customer’s agreement to such terms, such New Features shall be considered Services for purposes of this Agreement.

Updates. During the Term, Miso will provide Customer with all Updates (including updated Documentation) that Miso may, in its sole discretion, make generally available to its licensees at no additional charge. All Updates provided by Miso to Customer are deemed part of the Services from the time of provision to the Customer.

3. Data Processing.

Results. Subject to Customer’s continued compliance with this Agreement and any Service Limitations, Customer and its End Users may submit against the Content in the Customer’s Repository queries or other data calls (“API Calls”) for processing by the Services. Such API Calls may be made intentionally by an End User (such as by entering a query into a search or recommendation field) or may be indirectly performed on behalf of the End User (such as by sending the End User recommendations for additional content they may be interested in or providing End User’s other insights based on their interactions with the Services or the Content). Miso shall provide directly to each End User results or answers to such API Calls (“Results”). All API Calls and Results, in the form presented by and to the End User, shall belong to Customer.

Machine-Learning. Customer acknowledges that the Services contain cutting-edge machine learning technology whereby the Services monitor engagement by the End Users with the Results to further enhance future Results. Customer therefore grants to Miso a license to use all API Calls and Results for purposes of improving future Results and (where the data contained in the API Calls and Results has been appropriately aggregated and de-identified as having belonged to Customer) for purposes of improving the Services as they apply to Customer. Notwithstanding the foregoing, Miso confirms that any such improvements to the Services shall be used solely on behalf of Customer and its End Users, and that Customer’s Content, API Calls, and Results will not be used with any other Miso customer, without Customer’s express written permission.

Behavioral Insights and Feedback. Through the End User's use of the Services, certain usage data and trends will be generated by the Services regarding the End User's queries and interaction with the Customer Data and the Application (“Behavioral Insights”). Examples of Behavioral Insights would include quality of results measurements (ex, “thumbs up” or “thumbs down” voting on results or queries), as well as other indications of End User interaction with the Output. In addition, Customer or End Users may provide Feedback to Miso with regard to the Services (ex., comments on length of results, common questions or search tips). Customer agrees that Miso may use Behavioral Insights and Feedback to improve the Services generally. For the avoidance of doubt, Behavioral Insights and Feedback do not and will not include any of Customer’s Content or any personally-identifying information of any End User (or a portion or derivative work thereof). In addition, All Behavioral Insights generated by the Services shall belong in their entirety to Miso and shall be used by Miso solely in accordance with the Miso Privacy Policy.

End User Data. The Services may collect certain information that could personally identify an End User as the End User interacts with the Services, including IP address and device information (“End User Data”). Miso shall process all End User Data in accordance with the Miso Privacy Policy and shall retain only such End User Data as permitted by such End User or to the extent such End User Data has been de-personalized so as to no longer identify such End User.

Processing. Miso has implemented industry standard systems and procedures to (i) ensure the security and confidentiality of all API Calls and Results, and to (ii) protect against anticipated threats or hazards to the security or integrity of Customer Content and Repositories. The processing of all data processed via the Services takes place in the United States or as set out in the Miso Privacy Policy or otherwise agreed to in writing by Customer. By using the Services, Customer consents to this processing, and agrees that for purposes of worldwide data protection law, Miso constitutes a data processor in providing the Services to the Customer.

End User Privacy. Customer represents and warrants that it has all necessary licenses or other permissions to access, monitor, use, or disclose to Miso any End User Data processed by the Services, and that all such disclosure fully complies with all Relevant Laws.

Performance Data. Through the use of the Services, certain anonymized data related to the performance of the Services (uptime, fragmentation, latency) is generated. Miso retains all right, title and interest in such Performance Data.

4. Customer Obligations.

Compliance. Customer is solely responsible for its Applications, Content, and Repositories and for making sure its use of the Services complies with all Relevant Laws. Miso reserves the right to review Customer’s use of the Services for compliance, but shall not be obligated to conduct such review, or to ensure Customer’s compliance with Relevant Law. Customer is responsible for ensuring all End Users comply with Customer’s obligations and restrictions in this Agreement.

Restrictions. Customer will not, unless expressly authorized in writing by Miso, use the Services in connection with any Content or Repository that contains personal health information or any other information subject to heightened data security restrictions. Miso expressly makes no representations that the Services satisfy HIPAA requirements. Customer also will not use the Services in connection with any High Risk Activities.

Documentation. Miso may provide Documentation for Customer’s use of the Services. The Documentation may specify restrictions (e.g. attribution) on how the Applications may be built or the Services may be used and Customer will comply with any such restrictions specified.

5. Suspension and Removals.

Suspension/Removals. If Customer becomes aware that any End User is using or accessing the Services in violation of this Agreement, Customer shall immediately act to prevent such End User from accessing or using the Services. If Customer fails to comply with the foregoing within twenty-four hours of learning of such Prohibited Use, then Miso may: (i) suspend access to Services by the applicable End Users, if possible, and/or (ii) disable the Customer’s access to the Services until such violation is corrected.

Emergency Security Issues. If there is an Emergency Security Issue, then Miso may automatically and immediately suspend access to the Services by Customer and all of Customer’s End Users. Suspension will be to the minimum extent required, and of the minimum duration, to prevent or resolve the Emergency Security Issue. If Miso suspends access to Services for any reason, without prior notice to Customer, at Customer’s request, Miso will provide Customer the reason for the suspension as soon as is reasonably possible.

6. Intellectual Property Rights

Ownership. The Services (including any New Features or Updates or improvements thereto) and any Documentation are the proprietary property of Miso to which Miso retain all right, title, and interest. Customer owns and shall retain all right, title, and interest in the Customer Application, any Repositories connected to the Services, and in all Content in such Repositories. Except as expressly set forth in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or any of the other’s intellectual property or any derivatives thereof.

Data Ownership. Ownership over the different types of data submitted to or created by the Services shall be as set out in Section 3 above.

Customer Feedback. If Customer or End User provides Miso Feedback about the Services, then Miso may use that information without obligation to Customer, and Customer hereby irrevocably assigns to Miso all right, title, and interest in that Feedback.

Content Accessible Through Services. Content held in Repositories will be made accessible through the Services. The Content is the sole responsibility of Customer. Miso does not accept any responsibility nor make any warranties as to the completeness or accuracy of the Content. Customer represents and warrants that Customer has all necessary rights to make accessible all Content in the Repositories, and that Customer is in compliance with all restrictions imposed by third parties on the sharing of any Content (for example, attribution requirements or commercial use restrictions). Miso reserves the right to delete or purge any information from the Repository it reasonably believes is in violation of Relevant Laws, the terms of this Agreement, or could otherwise cause the Miso Platform to infringe the rights of any third party.

7. Confidential Information.

Confidential Information. Each Party acknowledges that by reason of its relationship to the other Party under this Agreement it will have access to and acquire knowledge, material, data, systems and other information concerning the operation, business, financial affairs and intellectual property of the other Party that may not be accessible or known to the general public, including the terms of this Agreement (“Confidential Information”).

Use and Disclosure of Confidential Information. Each Party agrees that it will use the Confidential Information of the Disclosing Party only for the purpose of performing its obligations under this Agreement, and shall:

1. maintain and preserve the confidentiality of all Confidential Information received from the other Party (the “Disclosing Party”), both orally and in writing, including taking such steps to protect the confidentiality of the Disclosing Party’s Confidential Information as the Party receiving such Confidential Information (the “Receiving Party”) takes to protect the confidentiality of its own confidential or proprietary information; provided, however, that in no instance shall the Receiving Party use less than a reasonable standard of care to protect the Disclosing Party’s Confidential Information;
2. disclose such Confidential Information only to its own employees, contractors, agents, or representatives on a “need-to-know” basis, and only to those persons who have agreed to maintain the confidentiality thereof pursuant to a written agreement containing terms at least as stringent as those set forth in this Agreement; and
3. not disclose such Confidential Information to any third party without the prior written consent of the Disclosing Party; provided, however, that each Party may disclose the financial terms of this Agreement to its legal and business advisors and to potential investors so long as such third parties agree to maintain the confidentiality of such Confidential Information.

Obligations. The Receiving Party’s obligation of confidentiality shall survive this Agreement for a period of five (5) years from the date of its termination or expiration and thereafter shall terminate and be of no further force or effect; provided, however, that with respect to Confidential Information which constitutes a trade secret, such information shall remain confidential so long as such information continues to remain a trade secret. The parties also mutually agree to (1) not alter or remove any identification or notice of any copyright, trade mark, or other proprietary rights which indicates the ownership of any part of the Disclosing Party’s Confidential Information; and (2) notify the Disclosing Party of the circumstances surrounding any possession or use of the Confidential Information by any person or entity other than those authorized under this Agreement.

Exclusions. The obligations of the parties in this Section shall not apply to Confidential Information which the Receiving Party can prove: (i) has become a matter of public knowledge through no fault, action or omission of or by the Receiving Party; (ii) was rightfully in the Receiving Party’s possession prior to disclosure by the Disclosing Party; (iii) subsequent to disclosure by the Disclosing Party, was rightfully obtained by the Receiving Party from a third party who was lawfully in possession of such Confidential Information without restriction; (iv) was independently developed by the Receiving Party without resort to the Disclosing Party’s Confidential Information; or (v) must be disclosed by the Receiving Party pursuant to law, judicial order or any applicable regulation (including any applicable stock exchange rules and regulations); provided, however, that in the case of disclosures made in accordance with the foregoing clause (v), the Receiving Party must provide prior written notice to the Disclosing Party of any such legally required disclosure of the Disclosing Party’s Confidential Information as soon as practicable in order to afford the Disclosing Party an opportunity to seek a protective order, or, in the event that such order cannot be obtained, disclosure may be made in a manner intended to minimize or eliminate any potential liability.

8. Fees

Fees. Customer will pay Miso the applicable fees for the chosen Service Plan as set out in Customer’s Account Portal or other written agreement between the Parties (the “Fees”). If the Service Plan specifies service capacity or usage restrictions, or otherwise limits or constrains use of the Services and Customer exceeds such limit or constraint, Miso may notify Customer, and the Fees due from Customer may be increased to account for such excess use; such Fees to be calculated at Miso’s then current rates and policies for the Service Plan selected by Customer and subject to any additional excess use by Customer, such adjusted Fees shall continue to apply thereafter during the remainder of the applicable term. Upon each Renewal Term, Fees will be recalculated based on the then-current rates and policies.

Unpaid Fees. All unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. All fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding taxes based on Miso’s net income) unless Customer has provided Miso with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Miso on account thereof.

Credit Card. If Customer elects to pay Fees by credit card, Customer represents and warrants that: (i) the credit information supplied to Miso is true, correct, and complete, (ii) charges incurred will be honored by the credit card company, (iii) Customer agrees to pay all processing fees incurred by Miso due to the use of a credit card.

Taxes. Customer agrees that it is solely responsible for all applicable federal, state, or local sales, use, excise, export or other applicable taxes (other than the taxes on the net income of Miso) related to its use of the Services.

9. Term and Termination.

Agreement Term. Unless otherwise set out in the Account Portal or other written agreement between the parties, this Agreement shall commence on the Effective Date and continue for one (1) year (“Initial Term”) or until the Agreement is terminated as set forth in in this Section of this Agreement. Following the Initial Term, this Agreement shall automatically renew for additional term(s) of equal length upon receipt by Miso of payment (“Renewal Term(s)”, together with the Initial Term, the “Term”).

Termination for Breach. Either party may terminate this Agreement for breach if: (i) the other party is in material breach of the Agreement and fails to cure that breach within thirty days after receipt of written notice; (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within ninety days; or (iii) the other party is in material breach of this Agreement more than two times notwithstanding any cure of such breaches.

Termination for Inactivity. Miso reserves the right to terminate the Services for inactivity, if, for a period exceeding 180 days, Customer has failed to access the Service.

Termination for Convenience. Customer may stop using the Services at any time with or without notice. Customer shall remain liable for all Fees for the remainder of the then-current Term.

Effect of Termination. If the Agreement is terminated, then: (i) the rights granted by one party to the other will immediately cease; (ii) Customer and Miso will disintegrate the Services from any Application; and (iii) upon request, each party will use commercially reasonable efforts to return or destroy all Confidential Information of the other party.

10. Publicity.

Attribution. Unless otherwise agreed in writing between the Parties, Customer agrees that it shall retain and reproduce in all copies of the Services (and in the integrations of such Services with the Customer Application) the copyright, trademark, and other proprietary notices and disclaimers of Miso and third parties as they appear in the Documentation. Customer further agrees to place the following notices in the credits (replacing xxxx with the current year) for any Application, to the extent such Application has credits:

“[Application name] uses the Miso® [NAME OF API?]. Miso® is a registered trademark of Miso Technologies, Inc. in the United States of America and elsewhere. “Miso®, copyright [year you wrote the code] – 2021, Miso Technologies, Inc. All rights reserved.”

Miso Brand Features. No other license or right in the Miso Brand Features is granted under this Agreement. All use of the Miso Brand Features will inure to the sole benefit of Miso. Customer agrees not to engage in any activity that could tarnish, dilute, or affect the validity or enforceability of the Miso Brand Features or cause consumer confusion or diminish any goodwill relating to any Miso Brand Features. If you wish to make further use of the Miso Brand Features, please contact Miso at OFFICE@ASKMISO.COM.

Customer Brand Features. Customer agrees that Miso may include Customer’s name or Brand Features in a list of Miso customers, online or in promotional materials. Miso may also verbally reference Customer as a customer of the Services. Customer may revoke Miso’s right to use its Brand Features under this Section with written notice.

Publicity. Except as set out in this Section 10, the terms of this Agreement shall constitute the Confidential Information of the Parties and shall not be disclosed except as permitted by this Agreement. Neither party needs approval if it is repeating a public statement made by the other party.

11. Representations and Warranties.

Representations by the Parties. Each party hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (ii) that it has the legal power and authority to enter into this Agreement; and (iii) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms.

Miso Representations. Miso shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and to regularly test the Services in a manner which aims to (a) minimize errors and interruptions in the Services, and (b) detect and remediate viruses, Trojan horses, worms, logic bombs, or other harmful and malicious code or programs that (i) are designed to negatively impact the operation or performance of the Services (ii) damage, destroy or alter any software or hardware, (iii) reveal, damage, destroy or alter any data; (iv) disable any computer program automatically, or (v) permit unauthorized access to any software or hardware. Miso may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Miso or by third-party providers, or because of other causes beyond Miso’s reasonable control, but Miso shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.

Disclaimer of Warranties. MISO DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND MISO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MISO AND ITS SUPPLIERS ARE NOT RESPONSIBLE OR LIABLE FOR THE DELETION OF OR FAILURE TO STORE ANY CONTENT AND OTHER COMMUNICATIONS MAINTAINED OR TRANSMITTED THROUGH USE OF THE SERVICES. CUSTOMER IS SOLELY RESPONSIBLE FOR SECURING AND BACKING UP ITS APPLICATION AND REPOSITORIES. NEITHER MISO NOR ITS SUPPLIERS, WARRANTS THAT THE OPERATION OF THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED. THE SERVICES ARE NOT DESIGNED, MANUFACTURED, OR INTENDED FOR HIGH RISK ACTIVITIES AND SHALL NOT BE USED IN CONNECTION WITH SUCH.

12. Limitation of Liability.

Limitation on Indirect Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR MISO’S SUPPLIERS, WILL BE LIABLE UNDER THIS AGREEMENT FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY.

Limitation on Amount of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY, NOR MISO’S SUPPLIERS, MAY BE HELD LIABLE UNDER THIS AGREEMENT FOR MORE THAN THE AMOUNT PAID BY CUSTOMER TO MISO UNDER THIS AGREEMENT DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.

Exceptions to Limitations. These limitations of liability set out in this Section 12 do not apply to violations of Miso’s Intellectual Property Rights by Customer or to Customer’s indemnification obligations.

13. Indemnification.

Defense and Indemnity. Unless prohibited by applicable law, Customer will defend and indemnify Miso and its Affiliates against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from: (i) any Application, any use or presentation of any Content, or Customer Brand Features; or (ii) Customer’s, or its End Users’, use of the Services in violation of this Agreement. Such defense shall be at the direction of Customer, but Miso may appoint non-controlling counsel and any settlement agreement must first be agreed to by Miso before acceptance by Customer.

Exclusions. This Section will not apply to the extent the underlying Allegation arises from:

1. Miso’s material breach of this Agreement;
2. modifications to Customer’s technology or Brand Features by anyone other than Customer; or
3. combination of Customer’s technology or Brand Features with materials not provided by Customer.

Sole Rights and Obligations. Without affecting either party’s termination rights, this Section states the parties’ only rights and obligations under this Agreement for any third party’s Intellectual Property Rights Allegations and Third-Party Legal Proceedings.

14. Government & Regulatory.

FAR Regulations. The Services were developed solely at private expense and are commercial computer software and related documentation within the meaning of the applicable Federal Acquisition Regulations and their agency supplements.

Export Compliance. The Services and Documentation may be subject to export laws and regulations of the United States and other jurisdictions, and any use or transfer of the Services and Documentation must be permitted under these laws and regulations. Each party represents that it is not named on any U.S. government denied-party list. Subscriber shall not enable use of the Services in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan, the Crimea region of Ukraine, or Syria) or in violation of any U.S. export law or regulation.

15. Definitions

For purposes of this Agreement, the following capitalized terms shall have the meaning set out in this Section:

1. “Account Portal” means Customer’s Miso “Dojo” admin account portal, currently hosted at https://dojo.askmiso.com/, through which Customer may make changes to the Customer’s Service Plan and Services.
2. “Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.
3. “Allegation” means an unaffiliated third party’s allegation.
4. “Application(s)” means any web, mobile, or other application into which Customer wishes to integrate the Services for an augmented End User experience with the same.
5. “Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
6. “Content” means the items made available to Customer’s End Users as included in the Repository.
7. “Control” means control of greater than fifty percent of the voting rights or equity interests of a party.
8. “Documentation” means the Miso documentation (as may be updated from time to time) in the form generally made available by Miso to its customers for use with the Services.
9. “Emergency Security Issue” means either: (a) any Customer’s or its End User’s use of the Services that disrupt: (i) the Services; (ii) other Customers’ or their End Users’ use of the Services; or (iii) the Miso network or servers used to provide the Services; or (b) unauthorized third party access to the Services.
10. “End Users” means the individuals Customer permits to use the Services or Application.
11. “Feedback” means feedback or suggestions about the Services provided to Miso by Customer.
12. “High Risk Activities” means uses such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Services could lead to death, personal injury, or environmental damage.
13. “HIPAA” means the Health Insurance Portability and Accountability Act of 1996 as it may be amended from time to time, and any regulations issued under it.
14. “Indemnified Liabilities” means any (i) settlement amounts approved by the indemnifying party; and (ii) damages and costs finally awarded against the indemnified party and its Affiliates by a court of competent jurisdiction.
15. “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, and moral rights laws, and other similar rights.
16. “Relevant Laws” shall mean all laws governing the use or provision of the Services in the particular industry Customer operates in, including any and all data privacy laws governing the collection and processing of data related to Customer and Customer’s End Users.
17. “Repository(ies)” means the set of Customer’s Content the Services connects to for access by End Users.
18. “Service Plan” means that tier of Services selected by the Customer, with the usage limitations (“Service Limitations”) and pricing as set out in Customer’s Account Portal.
19. “Third-Party Legal Proceeding” means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any appellate proceeding).
20. “Updates” means the periodic software updates provided by Miso to Customer from time to time. Updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and completely new versions.

16. Miscellaneous.

Notices. All notices must be in writing and addressed to the other party’s legal department and primary point of contact. The email address for notices being sent to Miso’s Legal Department is legal-notices@Miso.com. Notice will be treated as given on receipt as verified by written or automated receipt or by electronic log (as applicable).

Assignment. Neither party may assign any part of this Agreement without the written consent of the other, except to an Affiliate where: (a) the assignee has agreed in writing to be bound by the terms of this Agreement; (b) the assigning party remains liable for obligations under the Agreement if the assignee defaults on them; and (c) the assigning party has notified the other party of the assignment. Any other attempt to assign is void.

Change of Control. If a party experiences a change of Control (for example, through a stock purchase or sale, merger, or other form of corporate transaction): (a) that party will give written notice to the other party within thirty days after the change of Control; and (b) the other party may immediately terminate this Agreement any time between the change of Control and thirty days after it receives that written notice.

Force Majeure. Neither party will be liable for failure or delay in performance to the extent caused by circumstances beyond its reasonable control.

No Agency. This Agreement does not create any agency, partnership or joint venture between the parties.

No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.

Severability. If any term (or part of a term) of this Agreement is invalid, illegal, or unenforceable, the rest of the Agreement will remain in effect.

No Third-Party Beneficiaries. This Agreement does not confer any benefits on any third party unless it expressly states that it does.

Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.

Governing Law. ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES WILL BE GOVERNED BY CALIFORNIA LAW, EXCLUDING THAT STATE’S CONFLICT OF LAWS RULES, AND WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF SAN FRANCISCO OR SAN MATEO COUNTIES, CALIFORNIA, USA; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS.

Amendments. Any amendment must be in writing, signed by both parties, and expressly state that it is amending this Agreement.

Survival. In addition to any provision which by their context must survive termination of this Agreement, the following Sections will survive expiration or termination of this Agreement: 4, 5, 6, 8.5, 12, 13, and 16.

Entire Agreement. Together with the fee schedule and usage limitations set out in Customer’s Account Portal, this Agreement sets out all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty (whether made negligently or innocently), except those expressly set out in this Agreement. The terms located at a URL referenced in this Agreement and the Documentation are incorporated by reference into the Agreement. After the Effective Date, Miso may provide an updated URL in place of any URL in this Agreement.

Conflicting Terms. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Agreement, and the terms at any URL.

Last Updated August, 18, 2023