Master Cloud Services Agreement

Last updated: April 2, 2026

This Master Cloud Services Agreement is the default agreement governing enterprise use of the Kraken AI platform. Specific services, fees, and subscription terms are defined in individual Order Forms executed under this agreement. For questions, contact legal@optima.engineering.

This Master Cloud Services Agreement ("Agreement") governs the relationship between Optima Engineering LLC, a Delaware limited liability company ("Provider"), and the entity that executes an Order Form referencing this Agreement ("Customer").

Provider and Customer are each a "Party" and collectively the "Parties."

1. Definitions

1.1"Acceptable Use Policy" or "AUP" means Provider's acceptable use policy, as updated from time to time and made available at /legal/acceptable-use or as otherwise provided to Customer.

1.2"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party, where "control" means ownership of more than fifty percent (50%) of the voting securities or equivalent ownership interest.

1.3"Agent" means an autonomous or semi-autonomous AI software agent created, configured, deployed, or managed using the Platform.

1.4"Authorized User" means any individual who is authorized by Customer to access and use the Services under Customer's account, including employees, contractors, and agents of Customer or its Affiliates.

1.5"Beta Service" means any feature, functionality, or service of the Platform that is clearly designated as "beta," "preview," "experimental," "early access," or similar, that is provided prior to general commercial release, and that Provider at its sole discretion offers to Customer and Customer at its sole discretion elects to use.

1.6"Cloud Infrastructure" means the cloud or other compute, storage, or networking infrastructure controlled by a Party or by a third-party cloud service provider, used in connection with the delivery or consumption of the Services.

1.7"Confidential Information" has the meaning set forth in Section 7.

1.8"Customer Content" means all data, information, materials, text, prompts, instructions, configurations, agent definitions, and other content that Customer or its Authorized Users submit to, input into, or make available through the Services, including Customer Data.

1.9"Customer Data" means any data provided by or on behalf of Customer to the Services, including personal data, business data, and any data processed by Agents on Customer's behalf, but excluding Provider Materials.

1.10"Documentation" means Provider's then-current technical documentation, user guides, API references, and specifications for the Services, as made available by Provider.

1.11"Fees" means all amounts payable by Customer to Provider under this Agreement and any applicable Order Form.

1.12"Intellectual Property Rights" means all patent rights, copyrights, moral rights, trademark rights, trade secret rights, database rights, and any other intellectual property rights (registered or unregistered) throughout the world.

1.13"Law" means all applicable laws, regulations, rules, orders, and governmental requirements, including data protection and privacy laws.

1.14"Order Form" means an ordering document, subscription agreement, or statement of work executed by both Parties that references this Agreement and specifies the Services, Fees, Term, and other commercial terms.

1.15"Output" means any content, data, results, recommendations, decisions, or other materials generated by the Services or Agents in response to Customer Content.

1.16"Platform" means the Kraken AI Platform, including all software, APIs, tools, dashboards, and infrastructure provided by Provider for AI agent orchestration, governance, and management.

1.17"Professional Services" means implementation, configuration, training, consulting, or other professional services described in an Order Form or statement of work.

1.18"Provider Materials" means the Platform, Services, Documentation, and all software, models, algorithms, tools, templates, methodologies, and other materials provided or made available by Provider, including any modifications, improvements, or derivative works thereof, but excluding Customer Content and Outputs.

1.19"Security Addendum" means the Platform Services security addendum, as updated from time to time and made available at /legal/securityor as otherwise provided to Customer, which sets forth Provider's detailed security commitments for the Platform.

1.20"Services" means the Platform services, Professional Services, and any other services described in an Order Form, together with any updates, upgrades, or enhancements thereto provided by Provider during the Term.

1.21"Service Level Agreement" or "SLA" means the service level commitments applicable to the Services, as set forth in the applicable Order Form or as otherwise agreed by the Parties.

1.22"Subscription Term" means the period during which Customer is authorized to access and use the Services, as specified in the applicable Order Form.

1.23"Third-Party Components" means third-party software, models, APIs, or services incorporated into or used in connection with the Services.

1.24"Usage Data" means data and telemetry collected by Provider relating to Customer's use of the Platform Services. Usage Data may contain queries or instructions entered by an Authorized User but not the results of those queries. Usage Data does not include Customer Content or Outputs.

2. Scope of Services

2.1 Provision of Services. Subject to the terms of this Agreement and the applicable Order Form, Provider shall make the Services available to Customer during the Subscription Term. Provider will provide the Services in accordance with the Documentation and any applicable SLA.

2.2 Order Forms. The specific Services, quantities, Fees, Subscription Terms, and other commercial terms shall be set forth in one or more Order Forms executed by both Parties. Each Order Form is incorporated into and governed by this Agreement. In the event of a conflict between this Agreement and an Order Form, the Order Form shall control solely with respect to the subject matter of that Order Form, unless the Order Form expressly states otherwise.

2.3 Affiliates.Customer's Affiliates may enter into Order Forms under this Agreement. Each such Affiliate shall be bound by the terms of this Agreement as if it were an original Party. Customer shall remain responsible for its Affiliates' compliance with this Agreement.

2.4 Access and Use Rights.Provider grants Customer a non-exclusive, non-transferable (except as set forth in Section 15.1), non-sublicensable right to access and use the Services during the applicable Subscription Term, solely for Customer's and its Affiliates' internal business purposes and in accordance with this Agreement, the applicable Order Form, the Documentation, and the AUP.

2.5 Restrictions.Customer shall not, and shall not permit any third party to: (a) license, sublicense, sell, resell, transfer, assign, or distribute the Services; (b) modify, copy, or create derivative works based on the Services or Provider Materials; (c) reverse engineer, disassemble, decompile, or otherwise attempt to derive the source code, underlying algorithms, model weights, system prompts, prompt templates, guardrail configurations, or system architecture of the Services, including through the use of artificial intelligence, automated inference, systematic API probing, or analysis of Outputs, except to the extent expressly permitted by applicable Law; (d) access the Services for the purpose of building a competitive product or service or for benchmarking purposes without Provider's prior written consent; (e) use the Services to store or transmit any material that infringes any third party's Intellectual Property Rights; (f) use the Services in violation of the AUP or any applicable Law; or (g) exceed the scope of use authorized in the applicable Order Form.

2.6 Authorized Users.Customer is responsible for all activities that occur under its accounts and for its Authorized Users' compliance with this Agreement. Customer shall maintain appropriate access controls and shall promptly notify Provider of any unauthorized access or use.

2.7 AI Agent Operations. Customer acknowledges that Agents operate with varying degrees of autonomy as configured by Customer. Customer is responsible for: (a) defining appropriate delegation-of-authority boundaries and policy guardrails for its Agents; (b) configuring human-in-the-loop approval thresholds where appropriate; and (c) reviewing and validating Agent Outputs before relying on them for consequential decisions.

2.8 Third-Party Components.The Services may incorporate or interoperate with Third-Party Components. Use of Third-Party Components may be subject to separate terms and conditions. Provider shall identify material Third-Party Components in the Documentation or upon Customer's request.

2.9 Beta Services.Provider may make Beta Services available to Customer from time to time. Beta Services are provided for evaluation and testing purposes only and are not considered "Services" for purposes of any SLA. Beta Services are provided in "AS IS" condition, with all faults. The Customer acknowledges and accepts Beta Services without any representations, guarantees, or warranties from Provider, either expressed or implied, as to suitability or condition. Provider may modify, suspend, or discontinue any Beta Service at any time without notice or liability. Customer acknowledges that Beta Services may contain bugs, errors, or other defects and agrees that use of Beta Services is at Customer's sole risk. Provider shall have no obligation to make any Beta Service generally available or to continue offering a Beta Service for any period of time. Customer shall not disclose any information about Beta Services to third parties without Provider's prior written consent.

2.10 Shared Responsibilities. Customer acknowledges that the Services may be implemented in a manner that involves both Provider-managed and Customer-managed Cloud Infrastructure components. In such instances, each Party must undertake certain technical and organizational measures within its area of responsibility to protect the Services, Customer Content, and Customer Data. Provider is responsible for securing the portions of the Platform under its control; Customer is responsible for securing its own Cloud Infrastructure, systems, networks, and credentials used to access the Services. Provider shall describe the shared responsibility model in the Documentation or Security Addendum.

2.11 Regulated Data.Customer shall not include in Customer Content any protected health information ("PHI") as defined under the Health Insurance Portability and Accountability Act ("HIPAA"), any cardholder data as defined under PCI-DSS ("Cardholder Data"), or any other categories of data subject to heightened regulatory requirements, unless: (a) Customer has entered into an applicable Order Form or addendum expressly permitting processing of such data; (b) Customer configures and operates the Services in accordance with the applicable Documentation; and (c) in the case of PHI, Customer has entered into a Business Associate Agreement ("BAA") with Provider. Provider shall have no liability under this Agreement relating to Regulated Data that is not processed in accordance with the terms of this Section.

2.12 Service Evolution.Provider delivers the Platform Services according to different architectural models and configurations, which may evolve over time. Customer acknowledges that different portions of the Services are and may in the future be subject to changes reflected in the Documentation, and that such changes may provide for different rights, responsibilities, or terms applicable to those portions. Provider shall provide reasonable advance notice of material architectural changes that may affect Customer's use of the Services.

3. Term and Termination

3.1 Agreement Term.This Agreement commences on the Effective Date and continues until all Order Forms have expired or been terminated, unless earlier terminated in accordance with this Section 3 (the "Term").

3.2 Subscription Term. Each Order Form shall specify its Subscription Term. Unless otherwise stated in the applicable Order Form, Subscription Terms shall automatically renew for successive periods equal to the initial Subscription Term, unless either Party provides written notice of non-renewal at least thirty (30) days prior to the end of the then-current Subscription Term.

3.3 Termination for Cause. Either Party may terminate this Agreement or any Order Form upon written notice if: (a) the other Party materially breaches this Agreement and fails to cure such breach within thirty (30) days after receiving written notice thereof (or ten (10) days in the case of non-payment); or (b) the other Party becomes insolvent, makes an assignment for the benefit of creditors, or becomes subject to any proceeding under bankruptcy or insolvency law that is not dismissed within sixty (60) days.

3.4 Termination for Convenience.Unless otherwise specified in the applicable Order Form, either Party may terminate an Order Form for convenience upon ninety (90) days' prior written notice to the other Party, provided that Customer shall remain obligated to pay all Fees for the remainder of any committed Subscription Term.

3.5 Effect of Termination.Upon expiration or termination of this Agreement or any Order Form: (a) Customer's right to access and use the affected Services shall immediately cease; (b) Customer shall delete all stored elements of the Services from Customer's systems; (c) each Party shall return or destroy all Confidential Information of the other Party in its possession, except as required by Law or reasonable data retention policies; and (d) the following sections shall survive: Sections 1, 5, 6.2, 6.6, 7, 8, 9, 10, 11, 12, 13, 14, and 15. All provisions of this Agreement that by their nature should survive termination will so survive.

3.6 Data Retrieval.Upon Customer's written request made within thirty (30) days after expiration or termination, Provider shall make Customer Data available for export in a standard, machine-readable format. After such thirty (30) day period, Provider shall have no obligation to maintain or provide Customer Data and may delete it in accordance with its data retention policies, unless prohibited by Law.

4. Fees and Payment

4.1 Fees. Customer shall pay all Fees specified in the applicable Order Form. Unless otherwise stated in the Order Form, all Fees are quoted and payable in United States Dollars (USD).

4.2 Invoicing and Payment. Provider shall invoice Customer in accordance with the billing terms specified in the applicable Order Form. Unless otherwise stated in the Order Form, invoiced amounts are due and payable within thirty (30) days of the invoice date. Fees for committed Services shall be invoiced in advance; usage-based Fees shall be invoiced monthly in arrears.

4.3 Late Payments and Suspension

(a) Interest. Overdue amounts shall bear interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by applicable Law, calculated from the due date until the date of payment.

(b) Suspension for Non-Payment.Provider may suspend Customer's access to the Services upon thirty (30) days' written notice if any undisputed invoice remains unpaid for more than thirty (30) days past its due date.

(c) Suspension for Cause.Provider may temporarily suspend Customer's access to any or all Services immediately without notice if Provider reasonably suspects that Customer has: (i) violated the AUP, Section 2.5 (Restrictions), or Section 2.11 (Regulated Data) in a manner that may cause material harm or material risk of harm to Provider, the Services, or any third party; or (ii) violated applicable Law in connection with its use of the Services. Provider shall use commercially reasonable efforts to provide notice to Customer promptly after any such suspension and to limit the scope and duration of the suspension to the minimum reasonably necessary to address the triggering event. Customer shall be afforded a reasonable opportunity to cure the violation prior to termination.

(d) Notice of Suspension.Notwithstanding the notice provisions in Section 15.2 (Notices), notice under this Section 4.3 may be provided by email sent to a person the providing Party reasonably believes to have responsibility for the other Party's activities under the Agreement.

4.4 Taxes.All Fees are exclusive of taxes, levies, duties, and similar governmental assessments ("Taxes"). Customer is responsible for all Taxes associated with its purchases under this Agreement, excluding taxes based on Provider's net income. If Provider is required to collect or pay any Taxes, such Taxes shall be invoiced to and paid by Customer, unless Customer provides Provider with a valid tax exemption certificate.

4.5 Fee Adjustments. Provider may adjust Fees for any renewal Subscription Term by providing Customer with written notice at least sixty (60) days prior to the commencement of the renewal term. If Customer does not agree to the adjusted Fees, Customer may elect not to renew the applicable Order Form by providing written notice of non-renewal prior to the commencement of the renewal term. The notice of non-renewal shall be made at least thirty (30) days prior to the commencement of the renewal term, unless the terms of the Order Form state otherwise.

4.6 Disputes. Customer may dispute any invoice in good faith by providing written notice to Provider within fifteen (15) days of the invoice date, specifying the nature and basis of the dispute. The Parties shall work in good faith to resolve any billing dispute. Undisputed amounts remain due and payable in accordance with this Section 4.

4.7 Pay-As-You-Go Services.Notwithstanding anything in this Agreement to the contrary, Provider may suspend or terminate any Services provided on a month-to-month, consumption-based basis (with payment based only on Customer's usage during the billing period) upon thirty (30) days' prior written notice (email sufficient), if Provider reasonably determines that the account is inactive. In such case, Provider may also delete any Customer Content relating to such suspended Services that may be stored within the Platform upon expiration of such notice period. This Section 4.7 does not apply to Services subject to a committed Subscription Term under an Order Form.

4.8 Third-Party Marketplace Transactions.To the extent that Customer enters into an Order or accepts an Order via a third-party cloud service provider's marketplace or through an authorized reseller, Customer's payment terms shall be as separately arranged with such third party, provided that should Customer fail to pay Fees when due to such reseller or through such marketplace, Provider may seek payment directly from Customer. All other terms of this Agreement shall apply to Services procured through such channels.

5. Intellectual Property Rights

5.1 Provider Materials. As between the Parties, Provider retains all right, title, and interest (including all Intellectual Property Rights) in and to the Provider Materials. No rights are granted to Customer except as expressly set forth in this Agreement.

5.2 Customer Content. As between the Parties, Customer retains all right, title, and interest (including all Intellectual Property Rights) in and to Customer Content. Customer grants Provider a non-exclusive, worldwide, royalty-free license to use, host, store, reproduce, modify, and display Customer Content solely to the extent necessary to provide the Services to Customer in accordance with this Agreement.

5.3 Outputs.As between the Parties, Customer shall own all Outputs generated through Customer's use of the Services. Provider retains no ownership interest in Outputs. Customer acknowledges that: (a) Outputs are generated through probabilistic AI processes and may be similar or identical to outputs generated for other customers; and (b) such similarity shall not constitute a breach of this Agreement or any claim of ownership by Provider.

5.4 Feedback.If Customer provides suggestions, enhancement requests, recommendations, or other feedback regarding the Services ("Feedback"), Provider may use such Feedback without restriction or obligation to Customer. Customer hereby assigns to Provider all right, title, and interest in and to any Feedback.

5.5 Model Training Restriction.Provider shall not use Customer Content or Outputs to train, fine-tune, improve, or develop Provider's or any third party's machine learning models, algorithms, or AI systems without Customer's prior written consent. This restriction does not prevent Provider from using aggregated, anonymized, and de-identified usage data that cannot be attributed to Customer to improve the general performance and reliability of the Services.

5.6 Professional Services Deliverables. Unless otherwise specified in the applicable Order Form, all deliverables created by Provider in the course of performing Professional Services shall be owned by Provider, and Customer shall receive a non-exclusive, perpetual, royalty-free license to use such deliverables for its internal business purposes. Any pre-existing intellectual property of either Party incorporated into deliverables shall remain the property of the contributing Party.

5.7 Usage Data.Notwithstanding anything to the contrary in this Agreement, Provider may collect and use Usage Data to develop, improve, operate, and support its products and services. Provider shall not disclose any Usage Data to any third party unless: (a) it is anonymized and aggregated such that it does not identify Customer or Customer Confidential Information; or (b) disclosure is in accordance with Section 7 (Confidentiality) of this Agreement or is necessary to perform the Services. For the avoidance of doubt, Usage Data is not Customer Content and Section 5.5 (Model Training Restriction) does not restrict Provider's use of Usage Data as described in this Section 5.7.

6. Representations and Warranties

6.1 Mutual Representations and Warranties. Each Party represents and warrants that: (a) it has the legal power and authority to enter into this Agreement; (b) this Agreement constitutes a valid and binding obligation enforceable against it in accordance with its terms; and (c) its execution and performance of this Agreement does not conflict with any other agreement to which it is a party.

6.2 Provider Warranties

Provider warrants that:

  • (a) the Services shall perform materially in accordance with the Documentation during the applicable Subscription Term;
  • (b) Professional Services shall be performed in a professional and workmanlike manner, consistent with generally accepted industry standards, by qualified personnel;
  • (c) Provider shall maintain commercially reasonable administrative, physical, and technical safeguards designed to protect the security, confidentiality, and integrity of Customer Data, in accordance with Section 8;
  • (d) Provider has and shall maintain all rights, licenses, and consents necessary to provide the Services as contemplated by this Agreement;
  • (e) to Provider's knowledge, the Services, when used in accordance with this Agreement, do not infringe any third party's Intellectual Property Rights; and
  • (f) Provider shall employ commercially reasonable efforts in accordance with industry standards to prevent the transmission of malware or malicious code via the Platform Services.

6.3 Customer Warranties.Customer represents and warrants that: (a) it has all rights, licenses, and consents necessary to submit Customer Content to the Services; and (b) Customer Content, and Customer's use of the Services, shall not violate any applicable Law or third party's rights.

6.4 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6, EACH PARTY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. PROVIDER DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY SECURE, OR THAT ALL DEFECTS WILL BE CORRECTED. CUSTOMER ACKNOWLEDGES THAT AI-GENERATED OUTPUTS ARE PROBABILISTIC IN NATURE AND MAY CONTAIN INACCURACIES, AND PROVIDER DOES NOT WARRANT THE ACCURACY, COMPLETENESS, RELIABILITY, OR SUITABILITY OF ANY OUTPUT FOR ANY PARTICULAR PURPOSE.

6.5 Remedy for Breach of Warranty.If the Services fail to conform to the warranty in Section 6.2(a), Customer's sole and exclusive remedy shall be for Provider to, at its option: (a) correct the non-conformity; or (b) if Provider cannot reasonably correct the non-conformity, terminate the affected Order Form and refund to Customer any prepaid Fees for the unused portion of the Subscription Term.

6.6 Professional Services Warranty Claim Window. The warranty in Section 6.2(b) with respect to Professional Services shall not apply unless Customer provides Provider with written notice of a claim within ninety (90) days from the date of performance of the deficient Professional Services.

7. Confidentiality

7.1 Incorporation of MNDA.The Parties' obligations with respect to Confidential Information shall be governed by the Mutual Non-Disclosure Agreement entered into between the Parties (the "MNDA"), which is incorporated herein by reference and forms part of this Agreement. All definitions, obligations, restrictions, and remedies set forth in the MNDA shall apply to Confidential Information exchanged in connection with this Agreement. In the event of a conflict between the MNDA and this Section 7, the provision that is more protective of the Disclosing Party's Confidential Information shall control.

7.2 Supplemental Terms.In addition to the terms of the MNDA, the Parties agree that: (a) Customer Data shall be deemed Customer's Confidential Information; (b) the terms and conditions of this Agreement (including pricing) shall be deemed Confidential Information of both Parties; (c) Provider's non-public technical specifications, algorithms, and methodologies underlying the Services shall be deemed Provider's Confidential Information; (d) information shall not be deemed excluded from the definition of Confidential Information solely because it has been incorporated into, memorized by, or is reproducible from an artificial intelligence system's parameters, weights, or outputs, whether or not the Receiving Party can independently reproduce such information through prompting, querying, or otherwise interacting with such system; (e) information shall not be deemed non-confidential merely because it is embraced by more general information that is publicly available, or merely because individual features or components thereof are publicly known — any combination of features, elements, or details shall not be deemed public or within the exclusion exceptions unless the specific combination itself is publicly known or falls under one of the exceptions; (f) with respect to Confidential Information consisting of machine learning model weights, training data, training methodologies, agent definitions, and prompt engineering techniques, the obligations of confidentiality and non-use shall continue indefinitely, as the risk of incorporation into AI systems cannot be remediated after a fixed period; and (g) each Party acknowledges that the other Party may operate multi-tenant platform architectures, and that the design, implementation, and operational characteristics of tenant isolation mechanisms, data segregation strategies, security boundaries between tenants, and infrastructure topology constitute Confidential Information — neither Party shall use knowledge of such architectures to attempt to access, identify, or interfere with other tenants' data or operations.

7.3 Customer and End-User Data Protection.Neither Party shall use Confidential Information to identify, contact, solicit, or engage with any customer, end-user, or partner of the other Party whose identity or information is learned through access to Confidential Information, unless such Party obtains the other Party's prior written consent. Customer identities, usage patterns, deployment configurations, and business relationships constitute Confidential Information of the highest sensitivity. This obligation shall survive termination of this Agreement indefinitely with respect to customer identities and relationships.

8. Data Protection and Security

8.1 Data Processing. To the extent Provider processes personal data on behalf of Customer in connection with the Services, the Parties shall enter into a Data Processing Agreement("DPA") that governs such processing, which shall be incorporated into and form part of this Agreement. In the event of a conflict between this Agreement and the DPA with respect to data protection matters, the DPA shall control.

8.2 Security Measures. Provider shall implement and maintain commercially reasonable administrative, physical, and technical safeguards designed to protect Customer Data against unauthorized access, disclosure, alteration, loss, or destruction. Such safeguards shall be consistent with industry standards and shall include, at a minimum: (a) encryption of Customer Data in transit and at rest; (b) access controls and authentication mechanisms; (c) regular security assessments and vulnerability testing; (d) incident detection and response procedures; and (e) employee security awareness training.

8.3 Security Incidents.Provider shall notify Customer without undue delay (and in no event later than seventy-two (72) hours) after becoming aware of any confirmed unauthorized access to, or unauthorized disclosure, alteration, or destruction of, Customer Data (a "Security Incident"). Such notification shall include: (a) a description of the nature of the Security Incident; (b) the categories and approximate number of records affected; (c) the likely consequences; and (d) the measures taken or proposed to address the Security Incident. Provider shall cooperate with Customer in investigating and remediating any Security Incident.

8.4 Data Location.Provider shall process and store Customer Data only in the geographic regions specified in the applicable Order Form or DPA. Provider shall not transfer Customer Data to a jurisdiction outside such specified regions without Customer's prior written consent, except as required by applicable Law.

8.5 Subprocessors. Provider may engage subprocessors to assist in providing the Services, provided that: (a) Provider maintains a current list of subprocessors, made available to Customer upon request or at /legal/subprocessors; (b) Provider provides Customer with at least thirty (30) days' prior written notice before engaging a new subprocessor; (c) Customer may object to a new subprocessor on reasonable grounds within fifteen (15) days of receiving notice, and the Parties shall work in good faith to resolve any objection; and (d) Provider shall impose data protection obligations on each subprocessor that are no less protective than those set forth in this Agreement and the DPA.

8.6 Audit Rights.Upon Customer's reasonable written request (not more than once per twelve (12) month period), Provider shall make available to Customer information necessary to demonstrate compliance with its obligations under this Section 8. Provider shall cooperate with and permit reasonable audits or inspections conducted by Customer or a qualified third-party auditor designated by Customer and reasonably acceptable to Provider, subject to reasonable confidentiality obligations.

9. Indemnification

9.1 Indemnification by Provider.Provider shall defend, indemnify, and hold harmless Customer, its Affiliates, and their respective officers, directors, employees, and agents (collectively, "Customer Indemnified Parties") from and against any third-party claims, demands, lawsuits, or proceedings ("Claims") alleging that: (a) the Services, as provided by Provider and used by Customer in accordance with this Agreement, infringe any third party's Intellectual Property Rights; or (b) Provider's breach of its obligations under Section 8 (Data Protection and Security) has resulted in a violation of applicable data protection Law. Provider shall pay all damages, costs, and expenses (including reasonable attorneys' fees) finally awarded against Customer Indemnified Parties or agreed to in settlement by Provider with respect to such Claims.

9.2 IP Infringement Remedies.If the Services become, or in Provider's reasonable opinion are likely to become, the subject of an infringement claim, Provider may, at its option and expense: (a) procure the right for Customer to continue using the Services; (b) modify the Services to make them non-infringing without materially diminishing their functionality; or (c) if neither (a) nor (b) is commercially practicable, terminate the affected Order Form and refund to Customer any prepaid Fees for the unused portion of the Subscription Term.

9.3 Indemnification by Customer.Customer shall defend, indemnify, and hold harmless Provider, its Affiliates, and their respective officers, directors, employees, and agents (collectively, "Provider Indemnified Parties") from and against any Claims arising from: (a) Customer Content or Customer's use of the Services in violation of this Agreement, the AUP, or applicable Law; (b) Customer's configuration, deployment, or operation of Agents in a manner that causes harm to third parties, except to the extent caused by a defect in the Services; or (c) Customer's breach of its representations and warranties under Section 6.3.

9.4 Indemnification Procedures.The indemnified Party shall: (a) promptly notify the indemnifying Party in writing of any Claim (provided that failure to provide prompt notice shall not relieve the indemnifying Party of its obligations except to the extent materially prejudiced); (b) grant the indemnifying Party sole control of the defense and settlement of such Claim; and (c) provide reasonable cooperation and assistance in the defense at the indemnifying Party's expense. The indemnifying Party shall not settle any Claim in a manner that imposes any obligation or liability on the indemnified Party without the indemnified Party's prior written consent (not to be unreasonably withheld).

9.5 Exclusions.Provider's indemnification obligations under Section 9.1 shall not apply to Claims arising from: (a) modifications to the Services made by Customer or at Customer's direction (other than by Provider); (b) Customer's use of the Services in combination with products, services, or technologies not provided or authorized by Provider, to the extent such combination gives rise to the Claim; (c) Customer's use of the Services after Provider has notified Customer of the need to cease such use; (d) Customer Content; or (e) the publicly available open-source versions of Provider's software (such as the Kraken AI SDK licensed under Apache License 2.0), if the Claim does not allege specifically that the infringement arises from the proprietary Platform Services as distinct from such open-source software itself.

10. Limitation of Liability

10.1 Exclusion of Consequential Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUE, GOODWILL, DATA, OR BUSINESS OPPORTUNITIES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE) AND REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10.2 Cap on Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER TO PROVIDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY (THE "LIABILITY CAP").

10.3 Enhanced Liability Cap.Notwithstanding Section 10.2, the following categories of liability shall be subject to an enhanced cap equal to two (2) times the Liability Cap: (a) Provider's indemnification obligations under Section 9.1; (b) Provider's obligations under Section 8 (Data Protection and Security); and (c) either Party's breach of Section 7 (Confidentiality).

10.4 Exceptions.The limitations set forth in Sections 10.1 and 10.2 shall not apply to: (a) liability arising from a Party's gross negligence, willful misconduct, or fraud; (b) Customer's payment obligations under this Agreement; (c) either Party's indemnification obligations with respect to third-party Intellectual Property Rights claims under Section 9 (subject, in the case of Provider's obligations under Section 9.1, to the Enhanced Liability Cap set forth in Section 10.3); or (d) liability that cannot be limited under applicable Law.

10.5 Basis of the Bargain. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 10 REFLECT THE ALLOCATION OF RISK BETWEEN THE PARTIES AND ARE AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE FEES CHARGED BY PROVIDER REFLECT THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.

10.6 Beta Services and Free Services. NOTWITHSTANDING ANYTHING IN THIS SECTION 10 TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY LAW, PROVIDER'S LIABILITY RELATING TO BETA SERVICES OR ANY SERVICES PROVIDED FREE OF CHARGE, INCLUDING ANY SERVICES PROVIDED DURING A FREE TRIAL PERIOD, SHALL BE LIMITED TO FIVE THOUSAND US DOLLARS (USD $5,000).

10.7 Non-Cumulative Caps. IN NO EVENT SHALL PROVIDER BE LIABLE FOR THE SAME EVENT UNDER BOTH THE LIABILITY CAP AND THE ENHANCED LIABILITY CAP. THE LIABILITY CAP AND ENHANCED LIABILITY CAP SHALL NOT BE CUMULATIVE; IF THERE ARE ONE OR MORE CLAIMS SUBJECT TO EACH OF THOSE CAPS, THE MAXIMUM TOTAL LIABILITY FOR ALL CLAIMS IN THE AGGREGATE SHALL NOT EXCEED THE ENHANCED LIABILITY CAP.

11. Force Majeure

11.1 Force Majeure Events.Neither Party shall be liable for any failure or delay in performing its obligations under this Agreement (other than payment obligations) to the extent that such failure or delay is caused by circumstances beyond the Party's reasonable control, including natural disasters, acts of God, epidemics or pandemics, war, terrorism, riots, civil unrest, government actions, embargoes, sanctions, labor disputes, utility or telecommunications failures, cyberattacks (provided the affected Party maintained commercially reasonable security measures), or failures of third-party service providers (collectively, "Force Majeure Events").

11.2 Notification and Mitigation. The affected Party shall: (a) promptly notify the other Party in writing of the Force Majeure Event and its expected duration; (b) use commercially reasonable efforts to mitigate the impact of the Force Majeure Event and resume performance as promptly as practicable; and (c) provide periodic updates on the status of the Force Majeure Event.

11.3 Right to Terminate. If a Force Majeure Event continues for a period of sixty (60) consecutive days or more, either Party may terminate the affected Order Form(s) upon written notice to the other Party. In such event, Provider shall refund to Customer any prepaid Fees for the portion of the Subscription Term during which the Services were unavailable due to the Force Majeure Event.

12. Governing Law and Dispute Resolution

12.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Arizona, without regard to its conflict of laws principles or rules that would cause the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

12.2 Informal Resolution.Before initiating any formal dispute resolution proceeding, the Parties shall first attempt to resolve any dispute, controversy, or claim arising out of or relating to this Agreement ("Dispute") through good-faith negotiations between senior executives of each Party. Either Party may initiate informal dispute resolution by providing written notice to the other Party describing the Dispute. The Parties shall have thirty (30) days from receipt of such notice to resolve the Dispute informally.

12.3 Arbitration. If the Parties are unable to resolve a Dispute through informal negotiations within the period specified in Section 12.2, such Dispute shall be finally resolved by binding arbitration administered by the American Arbitration Association ("AAA") in accordance with its Commercial Arbitration Rules then in effect (and, where applicable, its Expedited Procedures for claims under $75,000). The arbitration shall be conducted by a single arbitrator mutually agreed upon by the Parties, or, failing agreement within fifteen (15) days, appointed by the AAA. The arbitration shall be conducted in Maricopa County, Arizona, or such other location as the Parties may mutually agree. The arbitrator's award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. The arbitrator shall have the authority to grant interim or emergency relief, including injunctive relief and specific performance, without the requirement of posting a bond or proving actual damages. Each Party hereby irrevocably waives any right to a jury trial in any action, suit, or proceeding arising out of or relating to this Agreement.

12.4 Class Action Waiver. Each Party agrees that any Dispute shall be conducted solely on an individual basis and not as a class action, consolidated action, or representative action.

13. Compliance and Regulatory

13.1 Compliance with Laws. Each Party shall comply with all applicable Laws in connection with its performance of its obligations and exercise of its rights under this Agreement.

13.2 Export Controls.Customer shall not export, re-export, or transfer the Services or any technical data received from Provider in violation of any applicable export control laws or regulations, including the U.S. Export Administration Regulations and sanctions programs administered by the U.S. Department of the Treasury's Office of Foreign Assets Control ("OFAC").

13.3 Anti-Corruption. Neither Party shall, directly or indirectly, offer, promise, give, or authorize the giving of anything of value to any government official, political party, or candidate for political office for the purpose of influencing any official act or decision, in violation of the U.S. Foreign Corrupt Practices Act, the UK Bribery Act, or any other applicable anti-corruption law.

13.4 AI Regulatory Compliance.Provider shall use commercially reasonable efforts to design and operate the Services in a manner consistent with applicable AI-specific laws and regulations, including requirements related to transparency, bias mitigation, and human oversight. Provider shall notify Customer of any material changes to the Services that may affect Customer's regulatory compliance obligations.

14. Insurance

14.1 Insurance Requirements. During the Term and for a period of twelve (12) months thereafter, Provider shall maintain the following minimum insurance coverage: (a) Commercial General Liability insurance with limits of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate; (b) Professional Liability / Technology Errors and Omissions insurance with limits of not less than $2,000,000 per claim and in the aggregate; and (c) Cyber Liability / Data Breach insurance with limits of not less than $2,000,000 per claim and in the aggregate. Provider shall provide certificates of insurance to Customer upon written request.

15. General Provisions

15.1 Assignment. Neither Party may assign this Agreement or any of its rights or obligations hereunder without the prior written consent of the other Party (which shall not be unreasonably withheld), except that either Party may assign this Agreement without consent: (a) to an Affiliate; or (b) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, provided the assignee agrees in writing to be bound by the terms of this Agreement. If any such assignment upon a change of control would result in the Agreement being held by a direct competitor of the other Party, or would cause the other Party to be in violation of applicable Law, the other Party may terminate this Agreement upon written notice. Any purported assignment in violation of this Section shall be null and void. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties and their respective successors and permitted assigns.

15.2 Notices. All notices required or permitted under this Agreement shall be in writing and shall be deemed given when: (a) delivered personally; (b) sent by confirmed email (for notices that do not relate to breach or termination); (c) one (1) business day after deposit with a nationally recognized overnight courier; or (d) three (3) business days after deposit in the mail, postage prepaid, certified or registered, return receipt requested. Notices shall be sent to the addresses specified on the applicable Order Form or such other address as a Party may designate by written notice.

15.3 Entire Agreement. This Agreement, together with all Order Forms, the DPA, the AUP, the Security Addendum, and any other documents expressly incorporated by reference, constitutes the entire agreement between the Parties with respect to its subject matter and supersedes all prior and contemporaneous agreements, proposals, representations, and understandings, whether written or oral. Any terms or conditions contained in Customer's purchase orders, vendor onboarding forms, or other business documents shall have no legal effect and are expressly rejected.

15.4 Amendments.This Agreement may not be modified or amended except by a written instrument signed by authorized representatives of both Parties. Notwithstanding the foregoing, Provider may update the AUP and Documentation from time to time, provided that such updates do not materially diminish the rights of Customer or materially increase Customer's obligations under this Agreement.

15.5 Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such provision shall be modified to the minimum extent necessary to make it valid and enforceable, or if it cannot be so modified, shall be severed from this Agreement. The remaining provisions shall continue in full force and effect.

15.6 Waiver. No failure or delay by either Party in exercising any right, power, or remedy under this Agreement shall operate as a waiver thereof. No single or partial exercise of any right, power, or remedy shall preclude any other or further exercise thereof or the exercise of any other right, power, or remedy. A waiver of any provision of this Agreement shall be effective only if made in writing and signed by the waiving Party.

15.7 Independent Contractors. The Parties are independent contractors. Nothing in this Agreement shall create or be construed to create a partnership, joint venture, franchise, agency, or employment relationship between the Parties.

15.8 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns. Nothing in this Agreement, express or implied, is intended to or shall confer upon any third party any legal or equitable right, benefit, or remedy of any nature under or by reason of this Agreement.

15.9 Publicity.Neither Party shall use the other Party's name, logo, or trademarks in any public announcement, press release, or marketing material without the other Party's prior written consent. Notwithstanding the foregoing, Provider may include Customer's name and logo in its customer list, provided that such use accurately represents the relationship.

15.10 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument. Electronic signatures shall be deemed original signatures for all purposes.

15.11 Construction.The headings in this Agreement are for convenience only and shall not affect the interpretation of this Agreement. The word "including" means "including without limitation." References to "days" mean calendar days unless otherwise specified.

15.12 Translations. Any translation of this Agreement that is provided as a courtesy shall not be legally binding. The English language version of this Agreement shall prevail in the event of any conflict or inconsistency with a translated version.

Supplemental Documents

The following documents are incorporated into this Agreement by reference and are available as separate documents: