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This Culminate Platform Agreement is entered into as of the date of the last signature below (the “Effective Date”) between Culminate, Inc., a Delaware corporation (“Culminate”) and _________, a [insert State] corporation (“Customer”) and sets forth the terms and conditions of Customer’s use of Culminate’s proprietary, AI-based, automated security event investigation software-as-a-service (the “Platform”). The “Order” means the Order Form referencing this Culminate Platform Agreement signed by Customer. The “Agreement” means this Culminate Platform Agreement together with the Order and any statement of work referencing this Culminate Platform Agreement.

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1. Access to the Platform; Misuse; Restrictions.‍
   
   • Access. Culminate hereby grants Customer, a non-exclusive, worldwide, non- transferable, non-sublicensable right and license during the Subscription Period listed in the Order to display, access and use the Platform solely for Customer’s internal business purposes. Culminate continually strives to improve its products and services, and reserves the right to improve or modify the Platform and its features during the Term, at its sole discretion; provided however that such modifications will not materially reduce the functionality of the Platform.
   • Misuse. In the event that Culminate reasonably concludes that Customer is using the Platform in violation of this Agreement, Culminate may suspend Customer’s access to the Platform without advanced notice in addition to and without prejudice to any other remedies Culminate may have, until Culminate identifies the cause of the breach or resolves the suspected breach, but not to exceed ten (10) days.
   • Restrictions. Customer agrees that it will not, and will not permit any other party to: (a) permit any third party to access the Platform or any accompanying documentation (“Documentation”); (b) modify, adapt, alter or translate the Platform or Documentation; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Platform or Documentation to any third party; (d) 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 Platform; or (e) publish or disclose to any third party any performance benchmark tests or analyses or other non-public information relating to the Platform or the use thereof.‍
2. Support Services; Professional Services.
   
   1. Support Services. Subject to Customer’s payment of all applicable Fees, during the Subscription Period Culminate will provide the Support Services for the Platform described  in this Section 2 (the “Support Services”) for a reasonable number of Customer’s employees, Monday through Friday, 10:00 a.m. to 6:00 p.m. Pacific Time, excluding national U.S. holidays via [support@culminatesecurity.com]. Culminate’s obligation to provide support services is conditioned upon the following: (a) Customer makes reasonable efforts to solve the problem after consulting with Culminate; (b) Customer provides Culminate with sufficient information and resources to correct the problem, as well as access to the personnel, hardware, and any additional software involved in discovering the problem; and (c) Customer maintains all hardware and communications interfaces necessary to access the Platformduring the Subscription Period.
   2. Professional Services. If Customer purchases Professional Services then this will be described in a statement of work signed by the parties (“SOW”), together with the related fees.

1. Customer Data; Safeguards.

1. Definitions. “Customer Data” means: (a) any and all information, data, texts, files, and other materials provided by Customer to Culminate or the Platform, including Customer’s Confidential Information and (b) any and all data generated by the Platform during Customer’s use of the Platform.
2. Ownership of Customer Data; License; Restrictions. As between Customer and Culminate, Customer is and will at all times remain the exclusive owner of Customer Data. Customer hereby grants to Culminate a non-exclusive, worldwide, royalty- free and fully paid license: (a) to use the Customer Data as necessary to provide the Platform to Customer and (b) to use aggregated and anonymized Customer Data (i) to improve the Platform and Culminate’s related product and service offerings and (ii) to generate and disclose statistics regarding use of the Platform. Culminate shall store Customer Data solely for the period necessary to provide the Platform to Customer and shall delete Customer Data promptly at the end of this period.  Culminate shall not process, store or otherwise use Customer Data for AI model training or for any other purpose not stated in this Section 3 without Customer’s express, prior written consent.

1. Safeguards. Culminate will ensure that Customer Data is processed by Culminate only as permitted in this Agreement. Culminate will use industry standard procedural, technical, and administrative safeguards for the Platform designed to protect the confidentiality, security, integrity, availability, and privacy of Customer Data stored in the Platform, including logical access control, physical access control, data access control and data transfer control. Culminate will maintain auditing procedures to audit its controls. However, Customer is solely responsible for data security configurations controlled by Customer in its facility and security breaches resulting from Customer’s security configurations.

1. Return. Upon request, Culminate shall export and provide all Customer Data to Customer in a format reasonably acceptable to Customer.

e.  Subprocessors. Supplier shall not subcontract any processing of the Customer Data to a third party subprocessor without the prior written consent of Customer. A list of approved subprocessors as of the Effective Date is attached at Exhibit A (the “Subprocessors”). Supplier is permitted to disclose Customer Data to each approved Subprocessor solely for the purpose of providing the Platform to Customer pursuant to a written agreement that is consistent with this Agreement.

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4. Term and Termination.

a. Term of Agreement. This Agreement shall begin on the POC Term Start Date listed in the Order and shall continue in effect until the POC Term End Date listed in the Order (the “POC Term”), unless earlier terminated as provided in this Section 4 or Section 5. Thereafter, this Agreement shall continue for the Initial Full Deployment Start Date listed in the Order and shall continue in effect until the Initial Full Deployment End Date listed in the Order (the “Initial Term”), unless earlier terminated as provided in this Section 4. Thereafter, this Agreement shall automatically renew for successive one-year periods (each, a “Renewal Term”), unless Customer gives written notice of non-renewal to Culminate at least 30 days prior to the end of the Initial Term or the then-current Renewal Term, as applicable. The POC Term, Initial Term and the Renewal Term(s) (if any) are referred to herein collectively as the “Term”.

b. Termination for Breach. Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement, provided that: (a) such party gives 30 days notice to the breaching party describing the manner in which this Agreement has been breached, and (b) the breach remains uncontested and uncured during such notice period. Notwithstanding the foregoing, Culminate may suspend access to the Platform by Customer as described at Subsection 5(b) (Misuse).

c. Termination for Insolvency. Either party may terminate this Agreement immediately upon written notice if the other Party: (a) becomes insolvent and becomes unwilling or unable to meet its obligations under this Agreement; (b) files a petition in bankruptcy; or (c) is subject to the filing of an involuntary petition for bankruptcy that is not rescinded within a period of sixty (60) days.

d. Effect of Termination or Expiration. Upon any termination or expiration of this Agreement: (a) Customer shall immediately cease all use of Platform, (b) each party will delete or return the other party’s Confidential Information and (c) Culminate shall delete all other Customer Data from the Platform and Culminate’s records.  Provisions of this Agreement that by their nature are intended to survive will continue to apply in accordance with their terms including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, limitations of liability and the general provisions of Section 11.

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‍POC Term. During the POC Term, notwithstanding anything to the contrary in this Agreement:

a. Customer may terminate this Agreement for convenience on written notice to Culminate without any liability whatsoever;

b. the Platform, Support Services and Professional Services are provided “as-is” and “as available” with no warranties, express or implied, of any kind; and

c. the total, aggregate liability of each party under this Agreement shall not exceed USD $100.00, except for each party’s liability for: (i) gross negligence and intentional misconduct, (ii) misappropriation of the other party’s intellectual property or (iii) liability for death or personal injury.

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Fees; Invoicing.

a. Fees. Customer will pay: (i) the fees set forth in the Order and (ii) the Professional Services fees set forth in an SOW, if any (collectively, the “Fees”). All Fees are non-refundable and non-cancelable, except as explicitly provided in this Agreement. Fees are exclusive of taxes, except for taxes on gross proceeds or income that are levied on Culminate. Customer is responsible for payment of all other sales taxes, use taxes, withholding taxes and other taxes.

b. Invoicing. Culminate will invoice Customer for the Fees set forth in the Order on the schedule set forth in the Order. Culminate will invoice Customer for the Fees listed in the SOW on the schedule set forth in the SOW.

c. Payment Terms. Customer will pay invoices from Culminate within 30 days of receipt of valid invoice. All payments pursuant to this Agreement will be made in United States dollars.

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Intellectual Property Rights in the Platform.

The Platform, including its operation, code, architecture and implementation, and all worldwide intellectual property rights therein, are the exclusive property of Culminate. Nothing in this Agreement gives Customer any intellectual property rights in the Platform, other than the limited license set out in Section 1 (Access to Platform) and Culminate reserves all rights not expressly granted in this Agreement.

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Confidentiality.

The party disclosing information under this Agreement is referred to as “Discloser,” and the party receiving information as “Recipient”. "Confidential Information" means information designated as such or that a reasonable person would assume is confidential, but does not include information that: (a) is now or subsequently becomes generally available without violation of this Agreement; (b) Recipient rightfully had in its possession prior to disclosure without an obligation of confidentiality; or (c) is independently developed by Recipient without the use of any Confidential Information. Recipient must carefully restrict access to the Confidential Information to its employees, Subproccessors and professional advisors who clearly need such access to meet the obligations of this Agreement and who are bound in writing by obligations of confidentiality at least as restrictive as those in this Agreement. Except as provided in this Section, Recipient may not directly or indirectly disclose Confidential Information to any third party without Discloser’s prior written consent.  Recipient may disclose Confidential Information if required by law or legal proceeding only after providing Discloser with sufficient prior notice for Discloser to contest such requirement or to otherwise protect against its disclosure. Any improper disclosure or misappropriation of Confidential Information may cause Discloser irreparable harm, not compensable by monetary damages, and Discloser has the right hereunder to seek equitable relief in addition to any other available remedies.

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Warranty; Disclaimer.

1. Warranty. Culminate warrants that the Platform will perform in accordance with its documentation for a period of thirty (30) days from the Subscription Period Start Date listed in the Order. This warranty covers problems reported to Culminate in writing during this warranty period. Customer’s exclusive remedy for breach of warranty is that Culminate will, at its option, repair or replace the Platform to make the Platform conform to the foregoing warranty. Following the warranty period, issues with the Platform will continue to be addressed under the Support Services program.
2. Disclaimer of Implied Warranties. EXCEPT AS PROVIDED IN THIS SECTION 9, TO THE MAXIMUM EXTENT PROVIDED BY APPLICABLE LAWS, THE PLATFORM AND SUPPORT SERVICES, INCLUDING ALL UPDATES, BUG FIXES, WORK AROUNDS, OR ERROR CORRECTIONS, ARE PROVIDED TO CUSTOMER “AS-IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INTEGRATION, NON-INFRINGEMENT, TITLE, PERFORMANCE, AND ACCURACY AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.

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Limitation of Liability.

1. Disclaimer of Indirect Damages. Except as stated in Section 10(c), neither party shall be liable for any indirect, incidental, consequential, special, exemplary or punitive damages (including loss of use, data, business or profits) regardless of the theory of liability.
2. Cap on Liability. Except as stated in Section 4 and Section 10(c), neither party shall be liable for aggregate damages in excess of the fees paid or payable by Customer under this Agreement during the twelve months prior to the event giving rise to liability, regardless of the theory of liability.
3. Exclusions. The limitations of liability set forth in Sections 10(a) and 10(b) do not apply to either party’s liability for: (a) gross negligence and intentional misconduct, (b) misappropriation of the other party’s intellectual property, or (c) liability for death or personal injury.
4. Independent Allocation of Risk. The limitations and exclusions of this Section apply even if the liable party has been advised of the possibility of such damages, even if the damages were foreseeable and even if a limited remedy fails of its essential purpose. Each provision of this Agreement that provides for a disclaimer of warranties, exclusion of damages or limitation of liability is to allocate the risks of this Agreement between the parties. This allocation of risk is reflected in the pricing offered by Culminate to Customer and is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of this Agreement. If applicable law limits the application of the provisions of this Section then the limitations will apply to the maximum extent permissible.

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General.

1. Use of Subcontractors. Culminate may use subcontractors to complete any part of its work under this Agreement. Culminate will be responsible for the performance of its subcontractors, who will remain under Culminate’s direction and control at all times.
2. Publicity. Culminate may use Customer’s name and logo in listings of Culminate’s customers on it website and in other public statements or disclosures for the purposes of marketing the Platform only with the expressed written permission provided by Customer; provided Customer may require Culminate to cease or modify any use of Customer’s name or logo that is misleading or tends to dilute Customer’s brand.
3. Governing Law; Venue. This Agreement shall be governed by the laws of the State of California without regard to conflict of law principles. Customer and Culminate agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located in San Francisco, California for the purpose of litigating all claims or disputes, and waive any and all objections regarding venue or inconvenient forum in such courts.
4. Waiver. A party’s failure to require performance of any provision shall not affect its right to require performance at any time thereafter, nor shall a waiver of any breach or default constitute a waiver of any subsequent breach or default.
5. Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
6. Interpretation. Use of paragraph headers in this Agreement is for convenience only and shall not have any impact on the interpretation of particular provisions. In the event that any part of this Agreement is held to be invalid or unenforceable, the unenforceable part shall be given effect to the greatest extent possible and the remaining parts will remain in full force and effect.
7. Assignment. Neither party may assign this Agreement without the other party’s express written consent, except to the assigning party’s successor by way of merger, acquisition, reorganization, or sale of stock or assets.
8. Notices and Contact Information. Each party will send notices made pursuant to this Agreement in writing by postal delivery or a reputable international courier service, in either case with all postage and delivery fees pre-paid and a delivery confirmation required, to the address provided for such party in the Order “Attn: Legal”, or to such updated address as the party provides by notice in accordance with this Subsection. Notice will be deemed given when actually received by the other party, or when delivery is refused. Customer questions or communications regarding the Platform or this Agreement can be sent to support@sfelc.com but will not serve as notice under this Agreement.
9. Independent Contractors. The relationship between the parties is that of independent contractors. Neither party is or will represent itself as the agent of the other.
10. Force Majeure. To the extent caused by hurricane, earthquake, other natural disaster or act of God, terrorism, war, labor unrest, general failure of the Internet or of communications systems, or other forces beyond the performing party’s reasonable control (collectively, “Force Majeure”), no delay, failure, or default, other than Customer’s failure to make payments when due, will constitute a breach of this Agreement. The time for performance shall be extended for a period equal to the duration of the Force Majeure event. The performing party shall use reasonable efforts to minimize the delays, to notify the other party promptly, and to inform the other party of its plans to resume performance.
11. Governing Law; Venue. This Agreement has been executed and delivered, and will be interpreted, construed and enforced pursuant to and in accordance with the laws of State of California, without reference to its conflicts of laws provisions. Customer and Culminate agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located in San Francisco, California for the purpose of litigating all claims or disputes, and waive any and all objections regarding venue or inconvenient forum in such courts.
12. Entire Agreement. This Agreement constitutes the entire and exclusive understanding and agreement between Customer and Culminate regarding Customer’s use of and access to the Platform. This Agreement prevails over any conflicting or additional terms of any quote, order, invoice or other communication which are rejected. This Agreement supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter of this Agreement.
13. Amendments. This Agreement may not be amended other than by a written instrument executed by authorized representatives of each party.
14. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute the same instrument.

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Culminate Platform Agreement

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This Culminate Platform Agreement is entered into as of the date of the last signature below (the “Effective Date”) between Culminate, Inc., a Delaware corporation (“Culminate”) and _________, a [insert State] corporation (“Customer”) and sets forth the terms and conditions of Customer’s use of Culminate’s proprietary, AI-based, automated security event investigation software-as-a-service (the “Platform”). The “Order” means the Order Form referencing this Culminate Platform Agreement signed by Customer. The “Agreement” means this Culminate Platform Agreement together with the Order and any statement of work referencing this Culminate Platform Agreement.

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1. Access to the Platform; Misuse; Restrictions.‍
   
   • Access. Culminate hereby grants Customer, a non-exclusive, worldwide, non- transferable, non-sublicensable right and license during the Subscription Period listed in the Order to display, access and use the Platform solely for Customer’s internal business purposes. Culminate continually strives to improve its products and services, and reserves the right to improve or modify the Platform and its features during the Term, at its sole discretion; provided however that such modifications will not materially reduce the functionality of the Platform.
   • Misuse. In the event that Culminate reasonably concludes that Customer is using the Platform in violation of this Agreement, Culminate may suspend Customer’s access to the Platform without advanced notice in addition to and without prejudice to any other remedies Culminate may have, until Culminate identifies the cause of the breach or resolves the suspected breach, but not to exceed ten (10) days.
   • Restrictions. Customer agrees that it will not, and will not permit any other party to: (a) permit any third party to access the Platform or any accompanying documentation (“Documentation”); (b) modify, adapt, alter or translate the Platform or Documentation; (c) sublicense, lease, rent, loan, distribute, or otherwise transfer the Platform or Documentation to any third party; (d) 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 Platform; or (e) publish or disclose to any third party any performance benchmark tests or analyses or other non-public information relating to the Platform or the use thereof.‍
2. Support Services; Professional Services.
   
   1. Support Services. Subject to Customer’s payment of all applicable Fees, during the Subscription Period Culminate will provide the Support Services for the Platform described  in this Section 2 (the “Support Services”) for a reasonable number of Customer’s employees, Monday through Friday, 10:00 a.m. to 6:00 p.m. Pacific Time, excluding national U.S. holidays via [support@culminatesecurity.com]. Culminate’s obligation to provide support services is conditioned upon the following: (a) Customer makes reasonable efforts to solve the problem after consulting with Culminate; (b) Customer provides Culminate with sufficient information and resources to correct the problem, as well as access to the personnel, hardware, and any additional software involved in discovering the problem; and (c) Customer maintains all hardware and communications interfaces necessary to access the Platformduring the Subscription Period.
   2. Professional Services. If Customer purchases Professional Services then this will be described in a statement of work signed by the parties (“SOW”), together with the related fees.

1. Customer Data; Safeguards.

1. Definitions. “Customer Data” means: (a) any and all information, data, texts, files, and other materials provided by Customer to Culminate or the Platform, including Customer’s Confidential Information and (b) any and all data generated by the Platform during Customer’s use of the Platform.
2. Ownership of Customer Data; License; Restrictions. As between Customer and Culminate, Customer is and will at all times remain the exclusive owner of Customer Data. Customer hereby grants to Culminate a non-exclusive, worldwide, royalty- free and fully paid license: (a) to use the Customer Data as necessary to provide the Platform to Customer and (b) to use aggregated and anonymized Customer Data (i) to improve the Platform and Culminate’s related product and service offerings and (ii) to generate and disclose statistics regarding use of the Platform. Culminate shall store Customer Data solely for the period necessary to provide the Platform to Customer and shall delete Customer Data promptly at the end of this period.  Culminate shall not process, store or otherwise use Customer Data for AI model training or for any other purpose not stated in this Section 3 without Customer’s express, prior written consent.

1. Safeguards. Culminate will ensure that Customer Data is processed by Culminate only as permitted in this Agreement. Culminate will use industry standard procedural, technical, and administrative safeguards for the Platform designed to protect the confidentiality, security, integrity, availability, and privacy of Customer Data stored in the Platform, including logical access control, physical access control, data access control and data transfer control. Culminate will maintain auditing procedures to audit its controls. However, Customer is solely responsible for data security configurations controlled by Customer in its facility and security breaches resulting from Customer’s security configurations.

1. Return. Upon request, Culminate shall export and provide all Customer Data to Customer in a format reasonably acceptable to Customer.

e.  Subprocessors. Supplier shall not subcontract any processing of the Customer Data to a third party subprocessor without the prior written consent of Customer. A list of approved subprocessors as of the Effective Date is attached at Exhibit A (the “Subprocessors”). Supplier is permitted to disclose Customer Data to each approved Subprocessor solely for the purpose of providing the Platform to Customer pursuant to a written agreement that is consistent with this Agreement.

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4. Term and Termination.

a. Term of Agreement. This Agreement shall begin on the POC Term Start Date listed in the Order and shall continue in effect until the POC Term End Date listed in the Order (the “POC Term”), unless earlier terminated as provided in this Section 4 or Section 5. Thereafter, this Agreement shall continue for the Initial Full Deployment Start Date listed in the Order and shall continue in effect until the Initial Full Deployment End Date listed in the Order (the “Initial Term”), unless earlier terminated as provided in this Section 4. Thereafter, this Agreement shall automatically renew for successive one-year periods (each, a “Renewal Term”), unless Customer gives written notice of non-renewal to Culminate at least 30 days prior to the end of the Initial Term or the then-current Renewal Term, as applicable. The POC Term, Initial Term and the Renewal Term(s) (if any) are referred to herein collectively as the “Term”.

b. Termination for Breach. Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement, provided that: (a) such party gives 30 days notice to the breaching party describing the manner in which this Agreement has been breached, and (b) the breach remains uncontested and uncured during such notice period. Notwithstanding the foregoing, Culminate may suspend access to the Platform by Customer as described at Subsection 5(b) (Misuse).

c. Termination for Insolvency. Either party may terminate this Agreement immediately upon written notice if the other Party: (a) becomes insolvent and becomes unwilling or unable to meet its obligations under this Agreement; (b) files a petition in bankruptcy; or (c) is subject to the filing of an involuntary petition for bankruptcy that is not rescinded within a period of sixty (60) days.

d. Effect of Termination or Expiration. Upon any termination or expiration of this Agreement: (a) Customer shall immediately cease all use of Platform, (b) each party will delete or return the other party’s Confidential Information and (c) Culminate shall delete all other Customer Data from the Platform and Culminate’s records.  Provisions of this Agreement that by their nature are intended to survive will continue to apply in accordance with their terms including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, limitations of liability and the general provisions of Section 11.

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‍POC Term. During the POC Term, notwithstanding anything to the contrary in this Agreement:

a. Customer may terminate this Agreement for convenience on written notice to Culminate without any liability whatsoever;

b. the Platform, Support Services and Professional Services are provided “as-is” and “as available” with no warranties, express or implied, of any kind; and

c. the total, aggregate liability of each party under this Agreement shall not exceed USD $100.00, except for each party’s liability for: (i) gross negligence and intentional misconduct, (ii) misappropriation of the other party’s intellectual property or (iii) liability for death or personal injury.

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Fees; Invoicing.

a. Fees. Customer will pay: (i) the fees set forth in the Order and (ii) the Professional Services fees set forth in an SOW, if any (collectively, the “Fees”). All Fees are non-refundable and non-cancelable, except as explicitly provided in this Agreement. Fees are exclusive of taxes, except for taxes on gross proceeds or income that are levied on Culminate. Customer is responsible for payment of all other sales taxes, use taxes, withholding taxes and other taxes.

b. Invoicing. Culminate will invoice Customer for the Fees set forth in the Order on the schedule set forth in the Order. Culminate will invoice Customer for the Fees listed in the SOW on the schedule set forth in the SOW.

c. Payment Terms. Customer will pay invoices from Culminate within 30 days of receipt of valid invoice. All payments pursuant to this Agreement will be made in United States dollars.

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Intellectual Property Rights in the Platform.

The Platform, including its operation, code, architecture and implementation, and all worldwide intellectual property rights therein, are the exclusive property of Culminate. Nothing in this Agreement gives Customer any intellectual property rights in the Platform, other than the limited license set out in Section 1 (Access to Platform) and Culminate reserves all rights not expressly granted in this Agreement.

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Confidentiality.

The party disclosing information under this Agreement is referred to as “Discloser,” and the party receiving information as “Recipient”. "Confidential Information" means information designated as such or that a reasonable person would assume is confidential, but does not include information that: (a) is now or subsequently becomes generally available without violation of this Agreement; (b) Recipient rightfully had in its possession prior to disclosure without an obligation of confidentiality; or (c) is independently developed by Recipient without the use of any Confidential Information. Recipient must carefully restrict access to the Confidential Information to its employees, Subproccessors and professional advisors who clearly need such access to meet the obligations of this Agreement and who are bound in writing by obligations of confidentiality at least as restrictive as those in this Agreement. Except as provided in this Section, Recipient may not directly or indirectly disclose Confidential Information to any third party without Discloser’s prior written consent.  Recipient may disclose Confidential Information if required by law or legal proceeding only after providing Discloser with sufficient prior notice for Discloser to contest such requirement or to otherwise protect against its disclosure. Any improper disclosure or misappropriation of Confidential Information may cause Discloser irreparable harm, not compensable by monetary damages, and Discloser has the right hereunder to seek equitable relief in addition to any other available remedies.

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Warranty; Disclaimer.

1. Warranty. Culminate warrants that the Platform will perform in accordance with its documentation for a period of thirty (30) days from the Subscription Period Start Date listed in the Order. This warranty covers problems reported to Culminate in writing during this warranty period. Customer’s exclusive remedy for breach of warranty is that Culminate will, at its option, repair or replace the Platform to make the Platform conform to the foregoing warranty. Following the warranty period, issues with the Platform will continue to be addressed under the Support Services program.
2. Disclaimer of Implied Warranties. EXCEPT AS PROVIDED IN THIS SECTION 9, TO THE MAXIMUM EXTENT PROVIDED BY APPLICABLE LAWS, THE PLATFORM AND SUPPORT SERVICES, INCLUDING ALL UPDATES, BUG FIXES, WORK AROUNDS, OR ERROR CORRECTIONS, ARE PROVIDED TO CUSTOMER “AS-IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INTEGRATION, NON-INFRINGEMENT, TITLE, PERFORMANCE, AND ACCURACY AND ANY IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.

‍

Limitation of Liability.

1. Disclaimer of Indirect Damages. Except as stated in Section 10(c), neither party shall be liable for any indirect, incidental, consequential, special, exemplary or punitive damages (including loss of use, data, business or profits) regardless of the theory of liability.
2. Cap on Liability. Except as stated in Section 4 and Section 10(c), neither party shall be liable for aggregate damages in excess of the fees paid or payable by Customer under this Agreement during the twelve months prior to the event giving rise to liability, regardless of the theory of liability.
3. Exclusions. The limitations of liability set forth in Sections 10(a) and 10(b) do not apply to either party’s liability for: (a) gross negligence and intentional misconduct, (b) misappropriation of the other party’s intellectual property, or (c) liability for death or personal injury.
4. Independent Allocation of Risk. The limitations and exclusions of this Section apply even if the liable party has been advised of the possibility of such damages, even if the damages were foreseeable and even if a limited remedy fails of its essential purpose. Each provision of this Agreement that provides for a disclaimer of warranties, exclusion of damages or limitation of liability is to allocate the risks of this Agreement between the parties. This allocation of risk is reflected in the pricing offered by Culminate to Customer and is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of this Agreement. If applicable law limits the application of the provisions of this Section then the limitations will apply to the maximum extent permissible.

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General.

1. Use of Subcontractors. Culminate may use subcontractors to complete any part of its work under this Agreement. Culminate will be responsible for the performance of its subcontractors, who will remain under Culminate’s direction and control at all times.
2. Publicity. Culminate may use Customer’s name and logo in listings of Culminate’s customers on it website and in other public statements or disclosures for the purposes of marketing the Platform only with the expressed written permission provided by Customer; provided Customer may require Culminate to cease or modify any use of Customer’s name or logo that is misleading or tends to dilute Customer’s brand.
3. Governing Law; Venue. This Agreement shall be governed by the laws of the State of California without regard to conflict of law principles. Customer and Culminate agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located in San Francisco, California for the purpose of litigating all claims or disputes, and waive any and all objections regarding venue or inconvenient forum in such courts.
4. Waiver. A party’s failure to require performance of any provision shall not affect its right to require performance at any time thereafter, nor shall a waiver of any breach or default constitute a waiver of any subsequent breach or default.
5. Severability. If any part of this Agreement is determined to be invalid or unenforceable by applicable law, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect.
6. Interpretation. Use of paragraph headers in this Agreement is for convenience only and shall not have any impact on the interpretation of particular provisions. In the event that any part of this Agreement is held to be invalid or unenforceable, the unenforceable part shall be given effect to the greatest extent possible and the remaining parts will remain in full force and effect.
7. Assignment. Neither party may assign this Agreement without the other party’s express written consent, except to the assigning party’s successor by way of merger, acquisition, reorganization, or sale of stock or assets.
8. Notices and Contact Information. Each party will send notices made pursuant to this Agreement in writing by postal delivery or a reputable international courier service, in either case with all postage and delivery fees pre-paid and a delivery confirmation required, to the address provided for such party in the Order “Attn: Legal”, or to such updated address as the party provides by notice in accordance with this Subsection. Notice will be deemed given when actually received by the other party, or when delivery is refused. Customer questions or communications regarding the Platform or this Agreement can be sent to support@sfelc.com but will not serve as notice under this Agreement.
9. Independent Contractors. The relationship between the parties is that of independent contractors. Neither party is or will represent itself as the agent of the other.
10. Force Majeure. To the extent caused by hurricane, earthquake, other natural disaster or act of God, terrorism, war, labor unrest, general failure of the Internet or of communications systems, or other forces beyond the performing party’s reasonable control (collectively, “Force Majeure”), no delay, failure, or default, other than Customer’s failure to make payments when due, will constitute a breach of this Agreement. The time for performance shall be extended for a period equal to the duration of the Force Majeure event. The performing party shall use reasonable efforts to minimize the delays, to notify the other party promptly, and to inform the other party of its plans to resume performance.
11. Governing Law; Venue. This Agreement has been executed and delivered, and will be interpreted, construed and enforced pursuant to and in accordance with the laws of State of California, without reference to its conflicts of laws provisions. Customer and Culminate agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located in San Francisco, California for the purpose of litigating all claims or disputes, and waive any and all objections regarding venue or inconvenient forum in such courts.
12. Entire Agreement. This Agreement constitutes the entire and exclusive understanding and agreement between Customer and Culminate regarding Customer’s use of and access to the Platform. This Agreement prevails over any conflicting or additional terms of any quote, order, invoice or other communication which are rejected. This Agreement supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter of this Agreement.
13. Amendments. This Agreement may not be amended other than by a written instrument executed by authorized representatives of each party.
14. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute the same instrument.

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