1. Overview

1.1 General

This Agreement states the terms and conditions by which VORTIA will deliver and Customer will receive any or all of the Subscription Services, as set forth on the Order Form. The specific services to be provided hereunder are identified in the Order Form, which is hereby incorporated by reference into this Agreement. In the event of conflict between the terms of the Order Form and the terms set forth in these Terms and Conditions, the terms of the Order Form will govern. This Agreement is intended to cover any and all Subscription Services ordered by Customer and provided by VORTIA.

1.2 Reserved Rights

Customer acknowledges that VORTIA may unilaterally make changes or amend these Terms and Conditions provided that if it does so, it will give Customer at least 30 days' notice prior to such changes becoming effective and for the 30 days following notice, Customer shall have the right to opt out of the amended Terms for the duration of the then-current Term until the end of the Initial Term or then-current Renewal Term.

1.3 Definitions

(a) "Aggregate Data" means any data that is derived or aggregated in deidentified form from (i) any Customer Materials; or (ii) Customer's and/or its Authorized Users' access and/or use of the Subscription Services, including, without limitation, any usage data or trends with respect to the Subscription Services.

(b) "Annual Automated Chat Maximum" means the limit on the number of Automated Chats between the Subscription Services and end users of Customer's website (or other property), as set forth in the applicable Order Form, based on Customer's subscription tier.

(c) "Authorized User" means an employee or contractor whom Customer has authorized to access and use the Subscription Services.

(d) "Automated Chat" means any Chat in which the Subscription Services responds to one or more questions from an end user of Customer's website (or other property).

(e) "Chat" means any text conversation initiated by an end user of Customer's website (or other property), beginning with first message and ending with the last message sent within 60 minutes from the first message. An additional Chat is accrued for each 60-minute period. For example, a conversation initiated by an end user that ends between 60 and 120 minutes after the first message will be deemed to be two Chats and such a conversation that ends between 120 and 180 minutes after the first message will be deemed to be three Chats.

(f) "Customer Materials" means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the Subscription Services or to VORTIA in connection with Customer's access and/or use of the Subscription Services, but excluding, for clarity, Aggregate Data and any other information, data, data models, content or materials owned or controlled by VORTIA and made available through or in connection with the Subscription Services.

(g) "Documentation" means the operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by VORTIA to Customer (including any revised versions thereof) relating to the Subscription Services, which may be updated from time to time upon notice to Customer.

(h) "Intellectual Property Rights" means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.

(i) "Person" means any individual, corporation, partnership, trust, limited liability company, association, governmental authority or other entity.

(j) "VORTIA IP" means the Subscription Services, the underlying software provided in conjunction with the Subscription Services, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Subscription Services, the Documentation, and Aggregate Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.

(k) "Subscription Services" means VORTIA's proprietary software-as-a-service platform, and all associated technology, in object code format only, which is made available by VORTIA to Customer pursuant to an Order Form and is intended to enable Customer to create and operate chatbots on Customer's website or other property that respond to end user requests and inquiries.

2. Subscription Services; Access and Use

2.1 Subscription Services

Subject to the terms and conditions of this Agreement, VORTIA hereby grants to Customer a limited, non-exclusive, non-transferable (except in compliance with Section 10.6) right to access and use the Subscription Services during the Term, solely for Customer's internal business purposes in accordance with, and subject to, the Annual Automated Chat Maximum.

2.2 Restrictions

Customer will not at any time and will not permit any Person (including, without limitation, Authorized Users) to, directly or indirectly:

1. access or use the Subscription Services in any manner beyond the scope of rights expressly granted in this Agreement;
2. modify or create derivative works of the Subscription Services or Documentation, in whole or in part;
3. reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Subscription Services, in whole or in part;
4. frame, mirror, sell, resell, rent or lease any access or use of the Subscription Services to any other Person, or otherwise allow any Person to access or use the Subscription Services for any purpose other than for the benefit of Customer in accordance with this Agreement;
5. access or use the Subscription Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable law;
6. contact any end user to Customer's property using contact information obtained through use of the Subscription Services without obtaining such end user's express written consent;
7. interfere with, or disrupt the integrity or performance of, the Subscription Services, or any data or content contained therein or transmitted thereby;
8. access or search the Subscription Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Subscription Services features provided by VORTIA for use expressly for such purposes; or
9. access or use the Subscription Services, Documentation or any other VORTIA Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Subscription Services.

2.3 Authorized Users

Customer will not allow any Person other than Authorized Users to access or use the Subscription Services. Customer may permit Authorized Users to access and/or use the Subscription Services, provided that Customer ensures each Authorized User complies with all applicable terms and conditions of this Agreement. Customer will be responsible for all acts, omissions and obligations of Authorized Users in connection with the activities contemplated by this Agreement and/or the Subscription Services, as though such acts, omissions and/or obligations were those of Customer. Customer will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Subscription Services in accordance with customary security protocols, and will promptly notify VORTIA if Customer knows or reasonably suspects that any user name and/or password has been compromised.

2.4 API

In order to use the Subscription Services on Customer's properties, Customer may be given a key for VORTIA's application programming interface ("API"). Customer is solely responsible for the security of the API key, is required to take appropriate measures to safeguard the API key and shall be responsible for any unauthorized access to the API key. Customer's property must maintain absolute compatibility with the API in order to be granted access to the Subscription Services.

2.5 Third-Party Services

Certain features and functionalities within the Subscription Services may allow Customer and its Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology and content (collectively, "Third-Party Services") through the Subscription Services. Company does not provide any aspect of the Third-Party Services and is not responsible for any compatibility issues, errors or bugs in the Subscription Services or Third-Party Services caused in whole or in part by the Third-Party Services or any update or upgrade thereto. Customer is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Customer to use the Third-Party Services in connection with the Subscription Services.

2.6 Reservation of Rights

Subject to the limited rights expressly granted hereunder, VORTIA reserves and, as between the Parties will solely own, the VORTIA IP and all rights, title and interest in and to the VORTIA IP. No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.

2.7 Support

VORTIA will provide reasonable technical support to Customer by electronic mail in connection with its use of the Subscription Services on weekdays during the hours of 9:00 a.m. to 5:00 p.m. Eastern Time, with the exception of U.S. federal holidays ("Support Hours"), subject to the following conditions:

1. prior to initiating any support request, Customer (and its own personnel responsible for information technology support) will have first attempted to resolve the issue generating the need for such support; and
2. Customer will reasonably cooperate with VORTIA support staff as needed to resolve the issue. Customer may initiate a helpdesk ticket during Support Hours by emailing info@blueoceanmarketings.com

2.8 Feedback

From time to time Customer or its employees, contractors, or representatives may provide VORTIA with suggestions, comments, feedback or the like with regard to the Subscription Services (collectively, "Feedback"). Customer hereby grants VORTIA a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with VORTIA's business purposes, including, without limitation, the testing, development, maintenance and improvement of the Subscription Services.

3. Fees and Payment

3.1 Fees

Customer will pay VORTIA the fees set forth in the relevant Order Form in accordance with the terms therein ("Fees") and without offset or deduction. VORTIA will issue invoices to Customer in accordance with the Order Form, and Customer will pay all amounts set forth on any such invoice no later than thirty (14) days after the date of such invoice. If Customer has signed up for automatic billing, VORTIA will charge Customer's selected payment method (such as a credit card, debit card, gift card/code, or other method available in Customer's home country) for any Fees on the applicable payment date, including any applicable taxes. If VORTIA cannot charge Customer's selected payment method for any reason (such as expiration or insufficient funds), Customer remains responsible for any uncollected amounts, and VORTIA will attempt to charge the payment method again as Customer may update its payment method information. In accordance with local law, VORTIA may update information regarding Customer's selected payment method if provided such information by Customer's financial institution.

3.2 Payments

Payments due to VORTIA under this Agreement must be made in U.S. dollars or EUR euro by check, credit card, debit card, wire transfer of immediately available funds to an account designated by VORTIA or such other payment method mutually agreed by the Parties. All payments are non-refundable and neither Party will have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other Party under this Agreement. If Customer fails to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law and VORTIA may suspend Services until all payments are made in full. Customer will reimburse VORTIA for all reasonable costs and expenses incurred (including reasonable attorneys' fees) in collecting any late payments or interest. VORTIA reserves the right to suspend the Subscription Services with notice in the event of Customer non-payment of past due invoices.

3.3 Taxes

Customer is responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Customer to VORTIA hereunder, other than any taxes imposed on VORTIA's income. Without limiting the foregoing, in the event that Customer is required to deduct or withhold any taxes from the amounts payable to VORTIA hereunder, Customer will pay an additional amount, so that VORTIA receives the amounts due to it hereunder in full, as if there were no withholding or deduction.

4. Confidential Information

4.1 Definition

As used herein, "Confidential Information" means any information that one Party (the "Disclosing Party") provides to the other Party (the "Receiving Party") in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity, the Subscription Services and the Documentation will be deemed Confidential Information of VORTIA. However, Confidential Information will not include any information or materials that:

1. are at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party;
2. are rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party;
3. are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or
4. are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party.

4.2 Obligations

The Receiving Party will maintain the Disclosing Party's Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that VORTIA may use and modify Confidential Information of Customer in deidentified form for purposes of developing and deriving Aggregate Data. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except

1. to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or
2. as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.