PLATFORM ACCESS AND USAGE AGREEMENT

PLATFORM ACCESS AND USAGE AGREEMENT

This Platform Access and Usage Agreement is made as of the date that Customer indicates its acceptance to the terms hereof, whether by executing an Order Form providing for Customer’s use of the Platform, accepting these terms via a clickwrap mechanism (including by checking a box indicating “I accept,” “I agree,” or similar acceptance) at account creation, or otherwise beginning to make any use of the Platform (the “Effective Date”), by and between Embedchain, Inc., d/b/a Mem0 (“Mem0”), and the entity or individual entering into this Agreement (e.g., via any of the foregoing methods) (“Customer”).

Mem0 has developed a cloud-based service through which Mem0 offers a sophisticated hybrid database system that efficiently manages and retrieves memories for AI agents and assistants (“Platform” or “Service”). Customer desires to secure access to the Mem0 Service (as defined below), and Mem0 desires to provide access to the Mem0 Service to Customer.

This Agreement consists of the attached Terms and Conditions (“Terms and Conditions”), the terms of any Order Form(s) that incorporate the Terms and Conditions by reference, the terms displayed on the Platform regarding the permitted use hereof, the applicable subscription plan, the fees therefor, and other terms and conditions applicable thereto (collectively, including any addenda executed by authorized representatives of the parties, the “Agreement”). In the event that Customer would use the Platform in connection with healthcare products and services, Customer agrees to execute Mem0’s standard form Business Associate Agreement applicable to such use. Customer’s access to and use of the Mem0 Service is governed solely by the terms of this Agreement.

TERMS AND CONDITIONS

1. Definitions. Capitalized terms have the meaning set forth below or as defined within this Agreement.

1.1 “Aggregate Data” has the meaning given in Section 5.3.

1.2 “API Key(s)” means the unique application programming interface key(s) provisioned by Mem0 to Customer for purposes of accessing and using the Mem0 Service programmatically.

1.3 “AI Tools” means generative artificial intelligence and machine learning services or applications that are integrated into the Mem0 Service, including without limitation, third-party large language models.

1.4 “Applicable Privacy Laws” means the data protection, data security and privacy laws and regulations of any jurisdiction applicable to the Mem0 Service under this Agreement.

1.5 “Confidential Information” means all information regarding a party’s business, including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information, that (a) is clearly identified as confidential or proprietary at the time of disclosure, or (b) the receiving party knew or should have known, given the nature of the information and the circumstances of its disclosure, was considered confidential or proprietary.

1.6 “Customer Content” means Inputs, Outputs, and any other content or information uploaded or transmitted to the Mem0 Service by Customer or Users, including from Third-Party Services. Customer Content does not include Performance Data or Aggregate Data.

1.7 “Documentation” means all specifications, user manuals, and other technical materials relating to the Mem0 Service that are provided or made available to Customer, and as may be modified by Mem0 from time to time.

1.8 “Feedback” has the meaning given in Section 5.5.

1.9 “Fees” means the fees for the Mem0 Service as set forth on an applicable Order Form or, for self-serve subscriptions, as published on the Platform at the time of Customer’s subscription or renewal thereof (as such published rates may be updated by Mem0 from time to time in its sole discretion).

1.10 “Free Plan” means a subscription tier that enables access to and use of the Mem0 Service on a no-charge, usage-capped basis, as described on the Platform.

1.11 “HIPAA” means the Health Insurance Portability and Accountability Act of 1996, as amended, and the implementing rules and regulations thereunder related to privacy, security and breach notification.

1.12 “Initial Term” has the meaning given in Section 10.1.

1.13 “Inputs” has the meaning given in Section 2.7.

1.14 “Order Form(s)” means an order form executed by the parties and referring to this Agreement which specifies the Mem0 Service and applicable Fees.

1.15 “Order Term” has the meaning given in Section 10.1.

1.16 “Outputs” has the meaning given in Section 2.7.

1.17 “Paid Plan” means any subscription to the Mem0 Service for which Customer pays Fees, including the Starter, Pro, and Enterprise tiers, as described on the Platform.

1.18 “Personal Data” means Customer Content that constitutes “personal data,” “personal information,” or “personally identifiable information” defined in Applicable Privacy Laws or information of a similar character regulated thereby, except that Personal Data does not include such information pertaining to Customer personnel who are business contacts of Customer, or such information received by Mem0 directly or from other sources (such as its other customers) independent of Mem0’s relationship with Customer.

1.19 “Prohibited Data” means (a) payment card data subject to the Payment Card Industry Data Security Standard (PCI DSS), (b) Protected Health Information, except where Customer and Mem0 have executed a Business Associate Agreement, and (c) any other categories of data designated as prohibited in the Documentation or on the Platform. Customer shall not upload or transmit any Prohibited Data to the Mem0 Service except as expressly authorized in writing by Mem0.

1.20 “Performance Data” means general performance and usage data about the Mem0 Service, including Customer’s use of the Mem0 Service (such as technical logs). Performance Data does not include any Customer Content.

1.21 “Protected Health Information” or “PHI” has the meaning as set forth in 45 CFR Section 160.103.

1.22 “Mem0 Service” means Mem0’s proprietary service, including the application programming interfaces, software development kits, and the web-based dashboard made available by Mem0 to Customer, as further described in the Documentation or an applicable Order Form.

1.23 “Mem0 Technology” means the Mem0 Service, Performance Data, the Aggregate Data, the Documentation, and all applicable software, data, or technical information used by Mem0 or provided to Customer in connection with the foregoing.

1.24 “Renewal Term” has the meaning given in Section 10.1.

1.25 “Term” has the meaning given in Section 10.1.

1.26 “Third-Party Service” means any third-party service or application connected to, or integrated with, the Mem0 Service by or on behalf of Customer.

1.27 “Users” means employees, independent contractors, and end users of applications of Customer that are authorized by Customer to access the Mem0 Service pursuant to Customer’s rights under this Agreement, including through the use of API Key(s).

2. MEM0 SERVICE; ACCESS; RESTRICTIONS.

2.1 Subscription to the Mem0 Service. Subject to the terms and conditions of this Agreement, Mem0 hereby grants to Customer a revocable, non-sub-licensable, non-transferable (except as provided in Section 15.3), non-exclusive right to access and use the Mem0 Service and accompanying Documentation solely for Customer’s internal business purposes.

2.2 Access. Customer will access and use the Mem0 Service through API Key(s) provisioned by Mem0 and, where applicable, through the web-based dashboard using unique account credentials. API Key(s) are confidential and may not be shared with any unauthorized third party. Customer may provision multiple API Key(s) within its account and may use such API Key(s) in Customer’s own applications to serve Users. Customer is responsible for maintaining the confidentiality of all API Key(s) and account credentials and is solely responsible for all activities that occur thereunder. Customer is responsible for ensuring that its Users comply with the terms of this Agreement and shall be liable for any acts or omissions of its Users that would constitute a breach of this Agreement. Customer will promptly notify Mem0 of any actual or suspected unauthorized use or access to its account or API Key(s).

2.3 Restrictions. Customer will not, and will not permit any User or other party to: (a) allow any third party to access the Mem0 Technology except as expressly allowed herein; (b) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Mem0 Technology for the benefit of any unauthorized third party; (c) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Mem0 Technology, except as permitted by law; (d) use any automated software, devices or other processes to “scrape,” extract, or download data from the Mem0 Technology (other than Customer Content) without the prior written consent of Mem0; (e) interfere in any manner with the operation of the Mem0 Technology or the hardware and network used to operate the same, or attempt to probe, scan or test vulnerability of the Mem0 Technology without the prior written consent of Mem0; (f) attempt to access the Mem0 Technology through any unapproved interface; (g) attempt to circumvent any usage restrictions of the Mem0 Technology; (h) modify, copy or make derivative works based on any part of the Mem0 Technology; (i) access or use the Mem0 Technology to build a similar or competitive product or service, or to develop a product or service that is substantially similar to or competes with the Mem0 Service, or otherwise engage in competitive analysis or benchmarking; (j) remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Mem0 or its licensors on the Mem0 Technology or any copies thereof; (k) upload or transmit any Prohibited Data to the Mem0 Service except as expressly authorized in writing by Mem0; or (l) otherwise use the Mem0 Technology in any manner that exceeds the scope of use permitted under Section 2.1 or in a manner inconsistent with applicable law, the Documentation, the Order Form or this Agreement.

2.4 Suspension. Mem0 reserves the right to suspend Customer’s or any User’s access to the Mem0 Service for any failure, or suspected failure, to comply with the restrictions set forth in Section 2.3. Mem0 may also suspend Customer’s or any User’s access to all or any part of the Mem0 Service, without notice and without incurring any resulting obligation or liability, if Mem0 believes, in its good faith and reasonable discretion, that Customer’s or any User’s use of the Mem0 Service poses a risk to the security or integrity of Mem0’s systems, interferes with Mem0’s ability to reliably provide the Mem0 Service to other customers, or may subject Mem0 to liability. Mem0 will use reasonable efforts to notify Customer or the applicable User(s) prior to suspension and will restore access to Customer or the applicable User(s) as soon as such risks no longer apply.

2.5 Customer Content. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content. The Customer Content will not: (a) be deceptive, defamatory, obscene, pornographic or unlawful; (b) include any Prohibited Data, except as expressly authorized in writing by Mem0; (c) knowingly contain any viruses, worms or other malicious computer programming codes intended to damage the Mem0 Service; or (d) violate the intellectual property, privacy, or other rights of any third party or violate any Applicable Privacy Laws.

2.6 Third-Party Services. Customer may elect, or where it is a necessary part of the Service may be required, to link certain Third-Party Services to the Mem0 Service. Customer is responsible for enabling the integration of each Third-Party Service, and by doing so, Customer acknowledges that: (a) Mem0 may access any Customer Content provided via a Third-Party Service so that it may be used in accordance with the terms of this Agreement, and (b) it is instructing Mem0 to share Customer Content (including Personal Data where directed) with the providers of such Third-Party Services. Third-Party Services are not under the control of Mem0 and Mem0 is not responsible for any Third-Party Services. Customer’s use of the Third-Party Services is governed by the Customer’s agreement with providers of the Third-Party Services. Customer acknowledges and agrees that, for the purposes of Applicable Privacy Laws, each of Mem0 and providers of any Third-Party Service are not processors or subprocessors of Personal Data with respect to each other.

2.7 Use of AI Tools. The Mem0 Service may include AI Tools. Customer may submit queries or other Customer Content to the AI Tools (“Inputs”) and receive back outputs generated by the AI Tools in response to Customer’s Inputs (“Outputs”). Inputs and Outputs are both Customer Content. Inputs will be shared with Third-Party Services that provide the AI Tools in order to generate Outputs. Mem0’s rights to use Inputs, Outputs, and related metadata for training or improving the AI Tools are subject to the limitations set forth in Section 5.2. Customer acknowledges and agrees that Mem0 does not represent or warrant that Outputs will (a) be free from third-party content or (b) not infringe third-party intellectual property rights. Customer acknowledges that the services leverage AI Tools and that Mem0 is not liable, and Customer agrees not to seek to hold Mem0 liable, for any third-party AI Tools. Customer is solely responsible for ensuring that its and its Users’ use of the Mem0 Service and Outputs comply with all applicable laws. Customer will be solely responsible for Customer’s and its Users’ use of the Mem0 Service and any Outputs resulting therefrom. Customer should evaluate the fitness of any Output as appropriate for Customer’s specific use case.

3. SUPPORT. The terms of this Section 3 apply only to Customers accessing or using the Platform pursuant to an Order Form. Subject to the terms and conditions of this Agreement, Mem0 will exercise commercially reasonable efforts to: (a) provide support to Customer for the use of Mem0 Service; and (b) keep the Mem0 Service operational and available to Customer, in each case in accordance with industry standards and its standard policies and procedures.

4. FEES AND PAYMENT.

4.1 Fees. Customer will pay Mem0 the applicable Fees. For self-serve subscriptions, Fees are prepaid via credit card or other payment method accepted by Mem0 and are charged at the beginning of each billing period at the rates then in effect. Mem0 may update the Fees applicable to self-serve subscriptions at any time by publishing revised rates on the Platform; provided that Mem0 will provide Customer with at least thirty (30) days’ prior notice (which may be provided via email or through the Platform) before any such revised Fees take effect. Any revised Fees will apply beginning with the first billing period commencing after the effective date of the change; Fees for the then-current billing period will not be affected. Usage-based overages beyond applicable plan limits will be billed in accordance with the rates published on the Platform or set forth in the applicable Order Form. Notwithstanding the foregoing, for enterprise subscriptions: (a) Customer will pay the Fees set forth on the applicable Order Form within thirty (30) days of receipt of an invoice; (b) all Fees are non-refundable (except as expressly set out in this Agreement or an Order Form) and are not eligible for set off; (c) Customer will maintain complete, accurate and up-to-date Customer billing and contact information; and (d) unless otherwise stated on an Order Form, at the end of the Initial Term or any subsequent Renewal Term, Mem0 reserves the right to increase the Fees payable for the forthcoming Renewal Term upon written notice to Customer at least sixty (60) days prior to the commencement of the Renewal Term and such revised Fees will take effect immediately upon the commencement of the Renewal Term.

4.2 Taxes. All Fees owed by Customer in connection with this Agreement are exclusive of, and Customer will pay, all sales, use, excise and other taxes and applicable export and import fees, customs duties and similar charges that may be levied upon Customer in connection with this Agreement, except for employment taxes and taxes based on Mem0’s income.

4.3 Late Payment. Payments by Customer that are past due will be subject to interest at the rate of one and one-half percent (1½%) per month (or, if less, the maximum allowed by applicable law) of that overdue balance. Mem0 reserves the right (in addition to any other rights or remedies Mem0 may have) to suspend Customer’s access to the Mem0 Service if any Fees are more than thirty (30) days overdue until such amounts are paid in full. Notwithstanding the foregoing, if any Fees remain unpaid for more than fifteen (15) days after written notice of such nonpayment from Mem0, Mem0 may terminate this Agreement or the applicable Order Form upon written notice to Customer.

5. PROPRIETARY RIGHTS.

5.1 Mem0 Technology. Customer acknowledges that Mem0 retains all right, title and interest in and to the Mem0 Technology, including any enhancements, improvements, or derivatives thereto, and that the Mem0 Technology is protected by intellectual property rights owned by or licensed to Mem0. Other than as expressly set forth in this Agreement, no license or other rights in the Mem0 Technology are granted to the Customer.

5.2 Customer Content. Customer retains all right, title and interest in and to the Customer Content. Customer hereby grants to Mem0 the following licenses with respect to Customer Content:

Paid Plan Customers. For Customers on a Paid Plan, Customer grants Mem0 a non-exclusive, worldwide, royalty-free and fully paid-up license during the Term to access and use Customer Content solely to provide the Mem0 Service and any accompanying support to Customer as set forth in this Agreement. For the avoidance of doubt, Mem0 will not use Customer Content of Customer’s accessing the Mem0 Service on a Paid Plan to train or improve any machine learning or artificial intelligence models, except as expressly set forth in Section 5.3.

Free Plan Customers. For Customers on a Free Plan, Customer grants Mem0 a non-exclusive, worldwide, perpetual, irrevocable, royalty-free and fully paid-up license to access, use, reproduce, modify, and create derivative works from Customer Content for any lawful purpose, including to provide the Mem0 Service, to train and improve machine learning and artificial intelligence models, and to develop and improve Mem0’s products and services.

5.3 Aggregate Data. Notwithstanding Section 5.2, for all Customers (including Customer accessing the Mem0 Service through a Paid Plan), Mem0 may create aggregated and de-identified data derived from Customer Content and Performance Data (“Aggregate Data”). Mem0 shall own all right, title, and interest in and to the Aggregate Data, and may use such Aggregate Data for any purpose, including to improve the Mem0 Service and to develop and improve Mem0’s products and services. Aggregate Data will not identify Customer or any individual.

5.4 Performance Data. Mem0 may monitor Customer’s use of the Mem0 Service and may collect and compile Performance Data. As between Mem0 and Customer, all right, title, and interest in the Performance Data, and all intellectual property rights therein, belong to and are retained solely by Mem0. Mem0 may use Performance Data for any purpose, provided that any disclosure or use of Performance Data outside of Mem0’s internal operations will be in aggregated and de-identified form and will not identify Customer or Customer’s Confidential Information.

5.5 Feedback. Customer or its Users may give feedback to Mem0 on the use, operation, and functionality of the Mem0 Service, including information about operating results, known or suspected bugs, errors, or compatibility problems, suggested modifications, and user-desired features, functionality, or workflows (collectively, “Feedback”). Customer hereby grants Mem0 a perpetual, irrevocable, worldwide, royalty-free and fully paid-up license to use, reproduce, modify, and create derivative works of the Feedback in connection with its business, products and services without restriction or consideration to Customer. Mem0 will not identify Customer as the source of any such feedback. Mem0 acknowledges that all Feedback is provided to Mem0 on an “as is” basis and that Customer is not responsible for Mem0’s use of any Feedback, including any results therefrom.

6. DATA SECURITY. The terms of this Section 6 apply only to Customers accessing or using the Platform pursuant to an Order Form. During the Term, Mem0 will implement and maintain commercially reasonable administrative, technical and physical measures designed to safeguard against unauthorized access to or use or disclosure of any Customer Content or Personal Data. Customer and its Users will be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other usernames and passwords required to access the Mem0 Service. In the event Mem0 becomes aware of any loss or unauthorized access, disclosure or use of any Personal Data (“Security Incident”), Mem0 will (a) promptly notify Customer in writing of such Security Incident, and (b) take commercially reasonable steps designed to (i) identify the cause of such Security Incident, (ii) minimize the harm associated therewith and (iii) prevent reoccurrence thereof. Any notification of any Security Incident will describe, to the extent known, details of the Security Incident, including steps taken by Mem0, or that Mem0 recommends that Customer take, to mitigate the potential risks. Mem0’s notification of or response to a Security Incident will not be construed as Mem0’s acknowledgement of any fault or liability with respect to the Security Incident.

7. PRIVACY. Mem0 will process Personal Data only in accordance with Customer’s instructions to Mem0 contained in the Agreement. This Agreement is a complete expression of such instructions, and Customer’s additional instructions will be binding on Mem0 only pursuant to an amendment to this Agreement signed by both parties. By entering into this Agreement, Customer instructs Mem0 to process Personal Data to provide the Mem0 Service and to perform its other obligations and exercise its rights under the Agreement. Customer will ensure (and is solely responsible for ensuring) that it has given such notices to and obtained such consents and permissions from all relevant third parties, and has reserved all rights, in each case, as may be required under applicable law or otherwise for Mem0 to process Personal Data as contemplated by the Agreement. If Customer and Mem0 execute a Data Processing Addendum (“DPA”), upon mutual execution, the DPA will be incorporated into and form part of this Agreement. In the event of a conflict between the terms of this Agreement and the DPA, the DPA will govern and control with respect to the processing of Personal Data.

8. BUSINESS ASSOCIATE. In providing the Mem0 Service hereunder, Mem0 may be considered a “business associate” of Customer as defined under HIPAA. Customer acknowledges that the transmission of Protected Health Information to the Mem0 Service constitutes Prohibited Data unless and until Customer and Mem0 have executed a Business Associate Agreement (“BAA”). If Customer intends to use the Mem0 Service in connection with Protected Health Information, Customer must first execute Mem0’s standard form BAA. Upon mutual execution, the BAA will be incorporated into and form part of this Agreement. In the event of a conflict between the terms of this Agreement and the BAA, the BAA will govern and control with respect to the use and protection of Protected Health Information.

9. CONFIDENTIAL INFORMATION.

9.1 Restrictions. As a recipient of Confidential Information, each party will (a) use the Confidential Information of the disclosing party only as set forth in this Agreement, (b) not disclose to any third party any Confidential Information of the disclosing party, except as expressly permitted under this Agreement, (c) limit access to the Confidential Information of the disclosing party to its employees and contractors who have a need to know such information to use or provide the Mem0 Service, and ensure that such employees or contractors are bound by confidentiality obligations at least as protective as those contained herein, and (d) protect the Confidential Information of the disclosing party from unauthorized use, access, or disclosure in a reasonable manner.

9.2 Exclusions. The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information that (a) is or becomes generally known and available to the public through no act or omission of the receiving party, (b) was in the receiving party’s lawful possession without confidentiality restrictions prior to disclosure by the disclosing party, (c) is received without confidentiality restrictions from a third party with the right to make such a disclosure, or (d) is independently developed by the receiving party. The receiving party may disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, provided that the receiving party will, if permitted by law, provide advance notice of the disclosure to the disclosing party and cooperate so that the disclosing party has the opportunity to obtain appropriate confidential treatment for such Confidential Information.

10. TERM AND TERMINATION.

10.1 Term. The term of this Agreement will commence on the Effective Date and continue until all Order Forms or subscriptions have expired or been terminated, unless terminated earlier in accordance with the terms of this Agreement (the “Term”). For self-serve subscriptions, the subscription term will be monthly or annual as selected by Customer at the time of subscription and will automatically renew for successive periods of the same duration, unless Customer cancels prior to the end of the then-current billing period. For enterprise subscriptions, unless otherwise set forth in an Order Form, each Order Form will have an initial term of one (1) year (the “Initial Term”) and will automatically renew for successive one (1) year terms (each a “Renewal Term” and together with the Initial Term, the “Order Term”), unless either party provides written notice of its intent to terminate the Order Form no fewer than thirty (30) days prior to the end of the then-current term. Customers on a Free Plan may use the Mem0 Service on an at-will basis, subject to the terms of this Agreement, and either party may terminate such access at any time.

10.2 Termination. Either party may terminate this Agreement or any Order Form for convenience upon thirty (30) days’ prior written notice to the other party, such termination to be effective at the end of the then-current billing period. Either party may also terminate this Agreement upon written notice if: (a) the other party materially breaches the Agreement and does not cure such breach (if curable) within thirty (30) days after written notice of such breach, or (b) the other party: (i) becomes insolvent, (ii) files a petition in bankruptcy that is not dismissed within sixty (60) days of commencement, or (iii) makes an assignment for the benefit of its creditors.

10.3 Effect of Termination. Upon the expiration or termination of this Agreement for any reason, the rights and licenses granted to Customer hereunder will immediately terminate and Customer will cease use of the Mem0 Service and Documentation. Termination of this Agreement will not relieve Customer of its obligation to pay all Fees that accrued prior to such termination. Each party will return to the other or destroy all property (including any Confidential Information) of the other party. Notwithstanding the foregoing, (a) each party may retain the Confidential Information of the other in accordance with its standard backup procedures, subject to the requirements in Section 9 (Confidential Information) and Section 6 (Data Security), and (b) Mem0’s rights in Aggregate Data and Performance Data as set forth in Sections 5.3 and 5.4 will survive termination. Sections 1, 2.3, 2.6, 2.7, 4, 5 (excluding any term-limited license grants), 6, 9, 10.3, and 11-15 will survive the termination of this Agreement.

11. LIMITED WARRANTIES. Customer represents and warrants that it has all rights necessary to upload and use the Customer Content (including any Customer Content uploaded or transmitted by its Users) with the Mem0 Service and to grant Mem0 all licenses to Customer Content in this Agreement without violating any third-party intellectual property, privacy or other rights, including Applicable Privacy Laws. During the Term, Mem0 warrants that the Mem0 Service, when used in accordance with the Documentation and the terms of this Agreement, will operate as described in the Documentation in all material respects. If Customer notifies Mem0 of any breach of the foregoing warranty, Mem0 will, as Customer’s sole and exclusive remedy, use commercially reasonable efforts to repair and fix the non-conforming service.

12. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) THE MEM0 TECHNOLOGY IS PROVIDED “AS IS” AND “AS AVAILABLE” AND (B) MEM0 AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, AND HEREBY EXPRESSLY DISCLAIM ANY AND ALL OTHER WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. MEM0 DOES NOT WARRANT OR REPRESENT THAT THE MEM0 TECHNOLOGY WILL BE FREE FROM BUGS OR UNINTERRUPTED OR ERROR-FREE, OR MAKE ANY OTHER REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE MEM0 TECHNOLOGY IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. WITHOUT LIMITING THE FOREGOING, MEM0 MAKES NO WARRANTY THAT ANY OUTPUTS OR OTHER RESULTS GENERATED BY THE AI TOOLS WILL BE ACCURATE, COMPLETE, RELIABLE, NON-INFRINGING, OR FIT FOR ANY PARTICULAR PURPOSE. CUSTOMER ACKNOWLEDGES THAT AI-GENERATED OUTPUTS MAY CONTAIN ERRORS, OMISSIONS, OR INACCURACIES AND THAT CUSTOMER IS SOLELY RESPONSIBLE FOR EVALUATING AND VERIFYING ALL OUTPUTS BEFORE USE. CUSTOMER ACKNOWLEDGES AND AGREES THAT MEM0 IS NOT LIABLE, AND CUSTOMER AGREES IT WILL NOT SEEK TO HOLD MEM0 LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING ANY THIRD-PARTY SERVICE, AND THAT THE RISK OF INJURY FROM ANY THIRD PARTY RESTS ENTIRELY WITH CUSTOMER.

13. INDEMNITY.

13.1 By Mem0. The terms of this Section 13.1 apply only to Customers accessing or using the Platform pursuant to an Order Form. If any action is instituted by a third party against Customer based upon a claim that the Mem0 Technology, as delivered and when used in accordance with this Agreement, infringes any third party’s intellectual property rights, Mem0 will defend such action at its own expense on behalf of Customer and will pay all damages attributable to such claim that are finally awarded against Customer or paid in settlement. The foregoing indemnification obligation does not apply to alleged infringement or misappropriation arising from Outputs. If the Mem0 Technology is enjoined or, in Mem0’s determination is likely to be enjoined, Mem0 will, at its option and expense (a) procure for Customer the right to continue using the Mem0 Technology, (b) replace or modify the Mem0 Technology so that it is no longer infringing but continues to provide comparable functionality, or (c) terminate this Agreement and Customer’s access to the Mem0 Technology and refund any amounts previously paid for the Mem0 Technology attributable to the remainder of the then-current Order Term. Mem0 will have no obligation under this Section 13.1 or otherwise with respect to any infringement claim based upon: (i) any use of the Mem0 Technology not in accordance with this Agreement or as specified in the Documentation; (ii) any use of the Mem0 Technology in combination with other products, equipment, software or data not supplied by Mem0, including Third-Party Services; or (iii) any modification of the Mem0 Technology by any person other than Mem0 or its authorized agents. This Section 13.1 sets forth the entire obligation of Mem0 and the exclusive remedy of Customer against Mem0 for any claim that the Mem0 Technology infringes a third party’s intellectual property rights.

13.2 By Customer. If any action is instituted by a third party against Mem0 relating to (a) Customer Content (including any Customer Content uploaded or transmitted by Users), (b) any act or omission of Customer’s Users in connection with the Mem0 Service, or (c) Customer’s breach or alleged breach of Section 2.5 or Customer’s representations and warranties set forth in Section 11, Customer will defend such action at its own expense on behalf of Mem0 and will pay all damages attributable to such claim that are finally awarded against Mem0 or paid in settlement of such claim.

13.3 Procedure. Any party that is seeking to be indemnified under the provision of this Section 13 (the “Indemnified Party”) must (a) promptly notify the other party (the “Indemnifying Party”) of any third-party claim, suit, or action for which it is seeking an indemnity hereunder (a “Claim”), (b) give the Indemnifying Party the sole control over the defense of such Claim, and (c) reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense. The Indemnifying Party will not agree to any settlement that requires the Indemnified Party to admit to fault or to take or refrain from taking any action without the Indemnified Party’s prior written consent.

14. Limitation of Liability. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL MEM0 BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST PROFITS IN ANY WAY RELATING TO THIS AGREEMENT. IN NO EVENT WILL MEM0’S AGGREGATE, CUMULATIVE LIABILITY IN ANY WAY RELATING TO THIS AGREEMENT EXCEED THE GREATER OF (A) THE AMOUNT OF FEES ACTUALLY RECEIVED BY MEM0 FROM CUSTOMER PURSUANT TO THE APPLICABLE ORDER FORM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM; AND (B) $100. THE FOREGOING LIMITATIONS WILL NOT APPLY TO LIABILITIES THAT CANNOT BE LIMITED BY LAW. THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR SUCH LIMITATIONS.

15. General Provisions.

15.1 Governing Law. This Agreement will be governed by, and all disputes arising under or in connection with this Agreement will be resolved in accordance with, the laws of the State of California, United States of America, exclusive of conflict or choice of law rules.

15.2 Dispute Resolution. All disputes arising out of or in connection with this Agreement, including any question regarding its formation, existence, validity or termination, will be finally settled under the Commercial Arbitration Rules of the American Arbitration Association (the “Arbitration Rules”) by one or more arbitrators appointed in accordance with the said Arbitration Rules. The seat, or legal place, of the arbitration will be San Francisco, California, United States of America. The language of the arbitration will be English. Except as otherwise specifically limited in this Agreement, the arbitral tribunal will have the power to grant any remedy or relief that it deems appropriate, whether provisional or final, including but not limited to conservatory relief and injunctive relief. Each party retains the right to apply to any court of competent jurisdiction for interim and/or conservatory measures, including pre-arbitral attachments or preliminary injunctions, and any such request will not be deemed incompatible with, or a waiver of, this agreement to arbitrate. The existence and content of the arbitral proceedings and any rulings or awards will be kept confidential by the parties and members of the arbitral tribunal except (a) to the extent that disclosure may be required of a party to fulfill a legal duty, protect or pursue a legal right, or enforce or challenge an award in bona fide legal proceedings before a state court or other judicial authority, (b) with the consent of all parties, (c) where needed for the preparation or presentation of a claim or defense in this arbitration, (d) where such information is already in the public domain other than as a result of a breach of this clause, or (e) by order of the arbitral tribunal upon application of a party. The arbitration award will be final and binding on the parties, and the parties undertake to carry out any award without delay. The parties will be deemed to have waived their right to any form of recourse insofar as such waiver can validly be made. Judgment on the award may be entered in any court of competent jurisdiction.

15.3 Assignment; Subcontractors. Neither party may assign this Agreement, including any rights or obligations arising hereunder, without the prior written consent of the other, except that either party may assign this Agreement without the consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment or transfer in violation of the foregoing will be null and void. This Agreement will be binding upon each party’s respective permitted successors and assigns. Customer agrees that Mem0 may subcontract certain aspects of the Mem0 Service to qualified third parties, provided that any such subcontracting arrangement will not relieve Mem0 of any of its obligations hereunder.

15.4 Order of Precedence. In the event of a conflict between the Terms and Conditions, an Order Form, or an exhibit to the Agreement, the following order of precedence will govern: an Order Form (as applicable), the Terms and Conditions, and then the other exhibits, if any. Notwithstanding the foregoing, an Order Form will take precedence over the Terms and Conditions if the Order Form expressly states which sections of these Terms and Conditions are intended to be superseded by the Order Form.

15.5 Notices. Any notice under this Agreement must be given in writing to the other party at the email or physical address set forth on an Order Form. Notices will be deemed to have been given upon: (a) receipt (or when delivery is refused) if delivered in person or sent by recognized courier service, or (b) delivery is sent by email. To be deemed effective, any email notice of the other party’s material breach pursuant to Section 10.2 must reference Section 10.2.

15.6 Force Majeure. Any delay in the performance of any duties or obligations of either party (except for the obligation to pay Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, war, fire, earthquake, typhoon, flood, natural disasters, governmental action, pandemic/epidemic, cloud-service provider outage, or any other event beyond the control of such party (collectively, a “Force Majeure Event”), provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible. If the Mem0 Service is unavailable or materially degraded for a continuous period of fourteen (14) days due to a Force Majeure Event, either party will have the right to terminate the Agreement, and Mem0 will refund any amounts previously paid for the Mem0 Service attributable to the remainder of the then-current Order Term.

15.7 Publicity. Mem0 may use Customer’s name and logo to identify Customer as a customer, including on Mem0’s website, social media and in sales and marketing materials, in the same manner in which it uses the names of its other customers. Mem0 will use Customer’s name and logo in accordance with Customer’s applicable branding guidelines and Mem0 may not use Customer’s name or logo in any other way without Customer’s prior written consent. Customer may opt out of the foregoing right at any time by providing written notice to Mem0 (including via email), and Mem0 will remove Customer’s name and logo from its marketing materials within a commercially reasonable period following receipt of such notice.

15.8 Export. Customer agrees not to use, export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from Mem0, or any products utilizing such data, in violation of the United States export laws or regulations. Further, each party agrees to comply with all relevant export laws and regulations of the United States and the country or territory in which the Mem0 Service is provided (“Export Laws”) to assure that neither any deliverable, if any, nor any direct product thereof is (a) exported, directly or indirectly, in violation of Export Laws or (b) intended to be used for any purposes prohibited by the Export Laws, including without limitation nuclear, chemical, or biological weapons proliferation. Customer further represents that (i) Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) Customer is not listed on any U.S. Government list of prohibited or restricted parties. Customer acknowledges and agrees that products, services or technology provided by Mem0 are subject to the export control laws and regulations of the United States, agrees to comply with these laws and regulations, and agrees that it will not, without prior U.S. government authorization, export, re-export, or transfer Mem0 products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.

15.9 U.S. Government Restricted Rights. If Customer is a government end user, then this provision also applies to Customer. The software contained within the Mem0 Service and provided in connection with this Agreement has been developed entirely at private expense, as defined in FAR section 2.101, DFARS section 252.227-7014(a)(1) and DFARS section 252.227- 7015 (or any equivalent or subsequent agency regulation thereof), and is provided as “commercial items,” “commercial computer software” and/or “commercial computer software documentation.” Consistent with DFARS section 227.7202 and FAR section 12.212, and to the extent required under U.S. federal law, the minimum restricted rights as set forth in FAR section 52.227-19 (or any equivalent or subsequent agency regulation thereof), any use, modification, reproduction, release, performance, display, disclosure or distribution thereof by or for the U.S. Government will be governed solely by this Agreement and will be prohibited except to the extent expressly permitted by this Agreement.

15.10 Miscellaneous. This Agreement (as modified by the parties from time to time) is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings. Only a written amendment signed by both parties may modify this Agreement. This Agreement may be executed in counterparts, which taken together will form one legal instrument. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.” The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement. There are no third-party beneficiaries of this Agreement.