Terms of Service

Terms of Service

Updated September, 2023

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Version 1.0

These Terms of Service (“Terms”) are between 228 Labs, Inc. d/b/a Freeplay (“Freeplay”) and the individual or entity listed in the initial Order (as defined below) referencing this Agreement (“Customer”). Together, these Terms and all Orders subject to these Terms form the parties’ entire agreement regarding any access to or use of the features and functionality of the Platform set forth in Orders (the “Agreement”).
By entering into an Order referencing this Agreement or by clicking “I agree” to this Agreement, Customer agrees to be bound by the terms of this Agreement. If you are entering into this Agreement on behalf of an organization or entity, by clicking “I agree” or by otherwise accepting this Agreement or an Order referencing this Agreement, you represent and warrant that you have authority to bind that organization or entity to this Agreement. If you do not have such authority or you do not agree to the terms of this Agreement, do not click “I agree” and do not otherwise accept this Agreement or any such Order.
Freeplay has developed and offers a hosted platform which facilitates and improves the use of Generative AI Models in other software (the “Platform”). “Generative AI Models” means computer programs that use artificial intelligence to process vast quantities of data and generate new content, such as text, images, videos, music, and source code (“Outputs”) based upon other data, content, or information, including text, images, videos, music, and source code submitted to the program (“Inputs”). Customer wishes to obtain the right to access and use the Platform. This Agreement sets forth the terms and conditions under which Freeplay is willing to provide Customer the right to access and use the Platform as set forth in Orders. In consideration of the foregoing, and in reliance on the mutual agreements contained herein, the parties agree as follows:
  1. DEFINITIONS. All capitalized terms used in this Agreement will have the meanings given to them herein. All other terms used in this Agreement will have their plain English (U.S.) meaning.

  2. TERM. This Agreement begins when Customer first enters into an Order referencing this Agreement or clicks “I agree” to these Terms, whichever occurs first (the “Effective Date”), and will continue in effect so long as any Order remains in effect, unless terminated as specified herein (“Term”). The term of each Order will begin as specified in the Order and will continue for the initial term stated in the Order (the “Initial Term”), and automatically renew for successive terms of equal length (each a “Renewal Term”), unless either party provides termination notice 30 days prior to the end of the Initial Term or then-current Renewal Term. The term of any then-active Order will end upon termination of this Agreement

  3. ORDERS. All access to the Platform and Freeplay Content (as defined below) under this Agreement will be strictly as set forth in orders either (a) submitted through Freeplay’s web-based customer portal and accepted by Freeplay or (b) executed by the parties (each an “Order”). All Orders will be as agreed to in writing by the parties and no other Order will be valid or binding on either party unless signed by the authorized representatives of both parties. Once signed by the authorized representatives of both parties, each Order will become a part of this Agreement. In the event of a conflict between the terms of an Order and these Terms, these Terms will control, except where an Order expressly indicates it is intended to control.

  4. ACCESS

    1. Platform. Subject to Customer’s compliance with this Agreement, during the term of such Order, Freeplay will provide Customer with a limited, non-exclusive, non-transferable, non-sublicensable right to access the functionality and tools of the Platform specified in such Order, solely for the purpose specified in such Order or, if no purpose is specified, solely for Customer’s own internal business purposes.

    2. Customer Account. Access to and use of the Platform will be through an account on the Platform provided for Customer (“Account”). Customer will be permitted to authorize its employees and contractors to access the Platform under Customer’s Account (“Authorized Users”). Customer will designate an Authorized User as the administrator of Customer’s Account (the “Admin”). Until an Admin is designated by Customer, the Admin will be the first Authorized User added to Customer’s Account. Customer may allow its Authorized Users to access and use the Platform solely under Customer’s Account for purposes of exercising the rights granted to Customer under this Agreement. Customer will ensure that all information about each Authorized User provided to Freeplay is and remains accurate and complete. Customer is solely responsible for all use of the Platform by each Authorized User and for compliance by each Authorized User with the applicable terms of this Agreement and any other agreement to which the Authorized User agrees in connection with the Platform. Customer will ensure the security and confidentiality of all user credentials associated with Customer’s Account and will prevent unauthorized access to or use of the Platform through any user credentials. Customer will notify Freeplay promptly of any such unauthorized access or use of the Platform or if any user credentials are lost, stolen, or otherwise compromised.

    3. Beta Access. If an Order provides for access to either the Platform or Freeplay Content on an alpha or beta basis (“Beta Access”), then, subject to the terms of this Agreement, Customer may access and use those portions of the Platform and Freeplay Content that Freeplay provides in connection with such Beta Access for Customer’s business purposes during the term set forth in the Order or, if no term is provided, for a period of 30 days beginning on the date the Freeplay provides Customer with access to the Platform or Content (“Beta Period”). Notwithstanding any other provision of this Agreement to the contrary: (1) ’S CUMULATIVE LIABILITY RELATING TO ANY BETA ACCESS, AND ANY ACCESS TO THE PLATFORM OR FREEPLAY CONTENT IN CONNECTION THEREWITH, IS LIMITED TO DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE GREATER OF (A) $100 OR (B) THE AMOUNT CUSTOMER ACTUALLY PAID FOR THE BETA ACCESS; and (2) Freeplay provides the Beta Access, and all access to the Platform and Freeplay Content in connection therewith: (a) on an “AS IS” and “AS AVAILABLE” basis without warranty of any kind; (b) without support, maintenance, training, or other services relating to the Platform or Freeplay Content; and (c) without any obligation or duty to indemnify, defend, or hold Customer harmless from any Claims or Losses. Freeplay may choose to extend the Beta Period in its sole discretion. Upon expiration of the Beta Period, Customer’s Beta Access will automatically terminate and, unless Customer has executed an Order with Freeplay providing for continued access to and use of the Platform and/or Content, Customer will cease all access to and use of the Platform and Freeplay Content and either return to or destroy any Freeplay Content in Customer’s possession or control.

    4. Third Party Offerings. The Platform provides Customer and its Authorized Users the option to access certain functionality, products, services, and other offerings provided by third party providers, including Generative AI Models (“Third Party Offerings”). Customer may access Third Party Offerings either (a) under Freeplay’s account with the applicable Third Party Offering or (b) under Customer’s account with the applicable Third Party Offering.

      1. Through the Freeplay Web Application. If Customer is accessing Third Party Offerings through Freeplay’s account with the applicable Third-Party Offering, Customer will comply with any additional terms and conditions Customer is required to enter into with Freeplay prior to receiving that access (“Additional Terms”) and agrees not to use such access to transmit, process or store any Sensitive Data.

      2. Through Customer’s Tokens. If Customer is accessing Third Party Offerings under Customer’s account or API credentials (“Token”), Customer may be required to provide Freeplay with Customer’s Tokens to the extent necessary to access Customer’s instance of that Third Party Offering. Each party will take reasonable steps to ensure the security and confidentiality of Customer’s Token and will notify the other party immediately if Customer’s Token is lost, stolen, or otherwise compromised. Customer’s access to and use of any Third Party Offering through Customer’s Tokens is subject to any additional terms, conditions, or agreement that Customer enters into in connection with the Third Party Offering (each, a “Third Party Agreement”). Each Third Party Agreement forms a separate and direct agreement between Customer and the provider of the applicable Third Party Offering and exclusively governs Customer’s use of the applicable Third Party Offering. The terms of any Third Party Agreement (which may include payment of additional fees) will apply to the applicable Third Party Offerings provided under that Third Party Agreement but will not otherwise apply to Customer’s access to or use of the Platform. Customer warrants that it will comply with the terms of each applicable Third Party Agreement at all times.

      3. Generally. All Third Party Offerings are provided by third parties and Freeplay does not control any Third Party Offering. Customer agrees that Freeplay is not responsible for any and all information or data that Customer may transmit, process, or transfer to or from such third party through the Platform after such information or data leaves the Platform. Freeplay cannot guarantee the c1ontinued availability of any Third Party Offerings and may block access provided by the Platform to any Third Party Offering without entitling Customer to any refund, credit, or other compensation, if for example the provider of Third Party Offering ceases to provision the Third Party Offering at a level or in a manner acceptable to Freeplay. If Freeplay cannot continue providing a Third Party Offering, as set forth in the preceding sentence, Freeplay will, as its sole obligation and Customer’s exclusive remedy, provide Customer a pro-rated refund of any pre-paid fees applicable to the Platform functionality dependent upon such Third Party Offering that is not provided.

    5. RESTRICTIONS. Customer acknowledges that the Platform, Freeplay Content (as defined below), and all software, hardware and other technology used by or on behalf of Freeplay to provide the Platform (collectively the “Platform Technology”), constitute the valuable IPR (as defined below) of Freeplay. As an express condition to the rights granted to Customer under this Agreement, and in addition to the other conditions in this Agreement, Freeplay Freeplay FREEPLAY Freeplay The Platform provides Customer and its Authorized Users the option to access certain functionality, products, services, and other offerings provided by third party providers, including Generative AI Models (“Third Party Offerings”). Customer may access Third Party Offerings either (a) under Freeplay’s account with the applicable Third Party Offering or (b) under Customer’s account with the applicable Third Party Offering. Customer will not and will not permit any third party to: (1) use or access any Platform Technology or any portion thereof, except as expressly provided in this Agreement; (2) modify, adapt, alter, revise, translate, or create derivatives (including derivative works) from any Platform Technology; (3) sublicense, distribute, sell, convey, assign, pledge, or otherwise transfer or in any way encumber any Platform Technology or any portion thereof; (4) use any Platform Technology for the benefit of any third party or make any Platform Technology available to any third party; (5) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code, structure, design, or method of operation for any Platform Technology; (6) circumvent or overcome (or attempt to circumvent or overcome) any technological protection measures intended to restrict access to any portion of the Platform or any other Platform Technology; (7) access or utilize the any Platform Technology for any purpose that is illegal in any way or that advocates illegal activity; (8) interfere in any manner with the operation or hosting of any Platform Technology or attempt to gain unauthorized access to any Platform Technology; (9) use automated scripts to collect information from or otherwise interact with any Platform Technology; or (10) alter, obscure or remove any copyright notice, copyright management information or proprietary legend contained in or on any Platform Technology. All use of all Platform Technology will be in accordance with any documentation for the applicable Platform Technology provided by Freeplay. As used in this Agreement, “IPR” means any and all intellectual property and proprietary rights throughout the world, including all copyrights, trademarks, service marks, trade secrets, patents (and patent applications), moral rights, rights in data and databases, contract rights, and any other legal rights protecting data or information.

    6. OWNERSHIP AND RIGHTS

      1. Platform. The Platform, including any updates, upgrades, new versions, modifications, or enhancements thereto, and all IPR therein and related thereto, is and will remain the exclusive property of Freeplay and its licensors, and nothing in this Agreement will operate to provide Customer with any ownership thereof.

      2. Freeplay Content. With the exception of Customer Data, all information and data (including the structure, organization, selection, coordination, and arrangement thereof), all other content, and all reports and other materials, provided through the Platform (“Freeplay Content”) is owned by Freeplay and its respective licensors and nothing in this Agreement will operate to provide Customer with any ownership thereof. Freeplay Content also includes (a) Freeplay’s Inputs to any Generative AI Model, excluding any Customer Data contained therein, and (b) any Outputs received in relation to Freeplay’s Inputs, except to the extent based upon Customer Data. Except as set forth in this Agreement, Customer is granted no licenses or rights in or to any Freeplay Content, or any IPR therein or related thereto.

      3. Customer Data.

        1. As between Freeplay and Customer, all data and other information provided to Freeplay by or on behalf of Customer, including Customer’s Inputs to any Generative AI Model through the Platform and Outputs Customer receives in relation thereto (“Customer Data”), is owned by Customer and its respective licensors. For purposes of this Agreement, Customer Data includes all data and information input to any Third Party Offerings on or through the Platform and any outputs received from such Third Party Offering in response to Customer’s inputs. For purposes of clarity, Customer Data does not include Usage Data (defined below). Customer grants Freeplay a nonexclusive, royalty-free, fully paid, worldwide license to utilize all Customer Data as necessary for the purpose of performing Freeplay’s obligations under this Agreement.

        2. Customer represents and warrants that neither the Customer Data nor Freeplay’s permitted use of Customer Data will: (i) violate this Agreement or any applicable laws, rules, or regulations; (ii) be libelous, defamatory, obscene, abusive, pornographic, threatening, or an invasion of privacy; (iii) constitute an infringement or misappropriation of the IPR or other rights of any third party; (iv) be illegal in any way or advocate illegal activity; or (v) be false, misleading, or inaccurate. Customer further represents and warrants to Freeplay that Customer has all rights, permissions, and consents necessary to grant Freeplay each of the foregoing rights set forth in this Section 6.3.

        3. Customer expressly acknowledges and agrees that, except as expressly permitted by an Order, it will not submit any Sensitive Data (as defined below) to the Platform or use the Platform to process any Sensitive Data. Customer acknowledges and agrees that Freeplay shall have no liability for any Sensitive Data unless and until Customer executes an Order expressly providing for the storage, processing, and distribution of such Sensitive Data and pays all fees associated therewith. “Sensitive Data” means: (i) a government issued identification number (e.g, social security numbers, passport numbers, driver's license numbers, and state issued identification number (or any portion thereof)), credit or debit card numbers (other than the truncated (last four digits) of a credit or debit card), financial account number (including financial institution or bank account number) or any security code, access code, personal identification number or password, that would permit access to a financial account, credit report information or information subject to the GLBA (15 U.S.C. §§ 6801–6809), genetic, biometric or health information (including all protected health information, as defined in 45 CFR 160.103), racial, ethnic, political or religious affiliations, citizenship or immigration status, trade union memberships, information about sexual life or sexual orientation, precise geolocation data; account passwords or access credentials; criminal history; the content of mail, emails, texts, direct messages, or other personal messages where Customer is not the intended recipient of the communication, or Personal Data of a child under sixteen (16) years of age; (ii) any other information that falls within the definition of “sensitive data,” “sensitive personal information,” “special categories of data,” or similar term under, or that would trigger data breach notifications under, any data privacy, security, processing or governance Law (as defined below).

        4. Freeplay will store all Customer Data on the Platform for the term of this Agreement. Freeplay strongly encourages Customer to create and maintain its own backups of any Customer Data stored on the Platform, as deemed reasonable by Customer. Freeplay will not be liable for any loss of Customer Data to the extent such Customer Data has not been backed up by Customer. Freeplay is under no obligation to review any Customer Data, but Freeplay has the right to review any Customer Data and take appropriate action, including removal or modification of Customer Data, if deemed necessary by Freeplay to prevent any damage, injury, or harm to Freeplay, the Platform, any other Freeplay customer, or any third party.

      4. Usage Data. Freeplay may collect, generate, and maintain information about how Customer and its Authorized Users use the Platform, including Account information, statistics, trends, scores, ratings, and rankings, records, date and time stamps, transaction and activity records, and system performance data (collectively “Usage Data”), which Freeplay may use to determine Customer’s fees, to improve, test, monitor, and provide the Platform, and to further develop and provide Freeplay’s offerings, provided that such Usage Data will not be used externally by Freeplay in a way that individually identifies Customer or its Authorized Users or that contains any Customer Data. Customer further authorizes Freeplay to aggregate a de-identified version of Customer Data with similar data from other Freeplay customers and third parties to create datasets to further develop the Freeplay’s offerings (“Training Datasets”), provided that the Training Datasets shall not identify Customer or include any Personal Data (as defined in the DPA). As between the parties, Freeplay owns all Training Data it creates.

      5. Feedback. If either party provides any general suggestions, ideas, or other feedback about the other party or the other party’s products, services, or offerings (“Feedback”), including Feedback on the success or failure of Inputs to Generative AI Models, the other party may use and otherwise act on Feedback with no financial, credit, confidentiality or other obligation to such party, but is not obligated to use Feedback in any way.

      6. Names & Logos. The names, logos, and other trademarks and service marks of each party are and will remain the property of each party. During the term, Freeplay may include Customer’s name and logo in Freeplay’s standard marketing materials and customer lists.

    7. FEES. Customer will pay the fees specified in each Order (“Fees”) when due. Unless specified in the Order, all Fees are due and payable by Customer, in advance, within 30 days of the date of each applicable invoice. Freeplay may increase the Fees upon renewal of any Order, effective upon such renewal, by providing Customer notice at least 45 days prior to the beginning of the next Renewal Term. Customer may not withhold, reduce, or offset Fees owed to Freeplay under this Agreement against any amounts due to Customer. Customer may not reduce the Fees payable under the Order or any limitations set forth in the Order during the Term. All Fees are non-refundable. Until paid in full, all past due amounts will bear an additional charge of the lesser of 11⁄2% per month or the maximum amount permitted under applicable law. Customer agrees to pay any taxes and other Fees and charges imposed by any government entity on access to the Platform or arising from this Agreement, excluding taxes based on Freeplay’s net income and payroll taxes. Customer must provide to Freeplay any direct pay permits or valid tax-exempt certificates prior to entering into the Order. If Freeplay is required to pay taxes (other than its income and payroll taxes), Customer will reimburse Freeplay for those amounts and indemnify Freeplay for any taxes and related costs paid or payable by Freeplay attributable to those taxes.

    8. SUPPORT, MAINTENANCE, AND OTHER SERVICES. Freeplay will provide support, maintenance, training, and other services relating to the Platform solely as specified in Orders under this Agreement or under a separate written agreement between the parties. Except as may be specified in an Order, or such a separate agreement, Freeplay is under no obligation to provide Customer with support, maintenance, training, or other services relating to the Platform. Notwithstanding the foregoing, should Freeplay provide Customer with any support, maintenance, training, or other services for the Platform, any such support, maintenance, training, or other services will be subject to the terms specified in the Order and Freeplay’s then-current terms for support, maintenance, or training, as applicable.

    9. WARRANTIES.

      1. Mutual. Each party represents, warrants, and covenants to the other party that: (a) it has full right, power, and authority to enter into this Agreement and to perform its obligations and duties under this Agreement; (b) this Agreement will be enforceable against it; and (c) the performance of its obligations under this Agreement will not violate any applicable federal, state, or local laws, rules, and regulations (“Laws”), any rights of any third party, or any agreement by which such party is bound.

      2. Platform. During the term of this Agreement, Freeplay will use commercially reasonable efforts to provide the Platform and Freeplay Content under each applicable Order. As Customer’s sole remedy, and Freeplay’s sole obligation, for any failure by Freeplay to comply with the foregoing sentence, Freeplay will at its option: (a) correct, re-perform, or re-provide the Freeplay Content or applicable feature of the Platform; or (b) refund the portion of any Fees actually paid by Customer for the Freeplay Content or applicable feature of the Platform. Customer acknowledges that all Freeplay Content is provided for informational purposes only and Customer is solely responsible for verifying the accuracy, completeness, and applicability of all Freeplay Content prior to making use of that Freeplay Content. Freeplay has not verified the accuracy of, and will not be responsible for any errors or omissions in, any Freeplay Content.

    10. DISCLAIMER. THE WARRANTIES EXPRESSLY STATED IN THIS AGREEMENT ARE THE SOLE AND EXCLUSIVE WARRANTIES MADE BY EACH PARTY UNDER THIS AGREEMENT. ANY REMEDY EXPRESSLY STATED IN THIS AGREEMENT IS THE SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THOSE WARRANTIES. Freeplay SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE PLATFORM AND ANY Freeplay CONTENT OR OTHER PLATFORM TECHNOLOGY OR ANY OF ITS OBLIGATIONS HEREUNDER, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, ALL Freeplay CONTENT AND OTHER PLATFORM TECHNOLOGY ARE PROVIDED BY Freeplay AND ITS LICENSORS ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES, OR COVENANTS OF ANY KIND.

    11. INDEMNIFICATION

      1. By Customer. Customer will defend, indemnify and hold harmless Freeplay, its affiliates, and each of their respective officers, directors, shareholders, employees, contractors, agents, and representatives from all losses, liabilities, costs, judgments, awards, settlements, penalties, damages, fines, expenses, costs and fees (including reasonable attorneys’ fees and costs of collection) (“Losses”) incurred in connection with any claim, allegation, action, or suit (“Claims”) brought against any of them by a third party insofar as the Claim arises out of or relates to: (a) any Customer Data or any access to or use of any Customer Data; (b) Customer’s use of or access to the Platform, except to the extent subject to an indemnification by Freeplay under Section 11.2; (c) Customer’s actual or alleged breach of applicable Laws or violation of any IPR or other right of or obligation to any third party; or (d) any damage to property or injury to or death of any person directly or indirectly caused by Customer.

      2. By Freeplay. Freeplay will defend, indemnify, and hold harmless Customer, its affiliates, and each of their respective officers, directors, shareholders, employees, contractors, agents, and representatives from all Losses incurred in connection with any Claims brought against any of them by a third party insofar as the Claim arises out of or relates to the Platform or Freeplay Content, when used as permitted under this Agreement, infringing or misappropriating any IPR of such third party. Should any such Claim be made, or in Freeplay’s reasonable opinion be likely to be made, in addition to Freeplay’s indemnification obligations under this Section, Freeplay may, at its option and expense: (a) procure for Customer the right to continue using the Platform; (b) replace or modify the Platform so as to no longer infringe; or (c) terminate the applicable Order and/or this Agreement. Freeplay’s obligation under this Section will not extend to, and Freeplay shall have no liability under this Section for, any Claim based on, arising out of, or relating to any: (i) any Customer Data; (ii) any specifications or instructions provided by Customer; (iii) additions, changes, or modifications to the Platform Technology, unless provided by Freeplay; (iv) any Third Party Offerings, or any other products, services, or offerings not provided by Freeplay under this Agreement; or (v) systems, networks, databases, hardware, and software provided under any open source license or any other license or agreement other than this Agreement. THIS SECTION STATES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND Freeplay’S ENTIRE LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION CLAIMS RELATING TO THIS AGREEMENT AND THE PLATFORM.

      3. Procedure. Each party’s obligations under this Section are subject in each instance to the indemnified party (a) promptly giving notice of the Claim or Loss to the indemnifying party; (b) giving the indemnifying party sole control of the defense and settlement of the Claim (provided that the indemnified party will have the right to approve any material liability imposed on and borne by the indemnified party in connection with such settlement); and (c) providing to the indemnifying party all available information and reasonable assistance, at the reasonable expense of the indemnifying party.

    12. LIMITATION OF LIABILITY. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PLATFORM TECHNOLOGY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING LOSS OF PROFIT, REVENUE, BUSINESS INTERRUPTION, TIME OPPORTUNITY, OR GOODWILL. THE TOTAL CUMULATIVE LIABILITY OF EACH PARTY TO THE OTHER PARTY UNDER OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES, IN AN AMOUNT NOT TO EXCEED THE PLATFORM LICENSE FEES PAID BY CUSTOMER TO Freeplay IN THE 12 MONTHS PRECEDING THE LIABILITY. THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION WILL NOT APPLY AS TO ANY DAMAGES OR OTHER LIABILITY BASED ON OR RESULTING FROM: (1) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 6.3 (CUSTOMER DATA) OR 11 (INDEMNIFICATION); (2) A PARTY’S BREACH OF SECTION 5 (RESTRICTIONS) OR 15 (CONFIDENTIALITY); (3) A PARTY’S INFRINGEMENT, MISAPPROPRIATION OR VIOLATION OF THE OTHER PARTY’S IPR; (4) THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF A PARTY; OR (5) A PARTY’S PAYMENT OBLIGATIONS. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF Freeplay WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. IN STATES WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, EACH PARTY’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

    13. TERMINATION AND EFFECT

      1. Termination. This Agreement and any Order may be terminated by either party if the other party materially breaches any provision of this Agreement or such Order and fails to cure such breach within 30 days after receiving notice thereof from the non-breaching party or such longer cure period (not to exceed 90 days) as reasonably necessary to cure such breach, provided that the breaching party is diligently working to cure such breach throughout the cure period. This Agreement (including all Orders) may be terminated at any time if the other party: (a) is dissolved or liquidated or takes any corporate action for such purpose; (b) becomes insolvent or is generally unable to pay its debts as they become due; (c) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency law; (d) makes or seeks to make a general assignment for the benefit of its creditors; or (e) applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property. Freeplay may terminate this Agreement, in whole or in part, immediately upon notice to Customer, if Customer breaches any Third Party Agreement.

      2. Effect of Termination. Termination of this Agreement will automatically terminate any Order then pending under this Agreement. Termination of this Agreement will not relieve either party of any rights or obligations accruing prior to such termination. Upon any termination of this Agreement or any Order: (a) all Fees owed to Freeplay under this Agreement before such termination will be immediately due and payable; (b) Freeplay may cease providing all access to the Platform and Freeplay Content under this Agreement or such Order; (c) all rights and licenses granted to Customer with respect to the Platform and Freeplay Content will terminate and Customer will cease access and use of the Platform and Freeplay Content; (d) except as may be expressly permitted under this Agreement, within 30 days of termination or the request of the other party, each party will return to the other party or, at the option of the other party, permanently destroy any Confidential Information of the other party in such party’s possession or control, including any Freeplay Content or Customer Data. At the request of the other party, each party will certify in writing to its compliance with this Section.

      3. Survival. The following Sections will survive termination of this Agreement for any reason: 1, 6, 7, 9, 10, 11, 12, 13, 15, 16, 17, 19, 20, 21, 22, and 24.

    14. SUSPENSION. Freeplay reserves the right to immediately suspend Customer’s access to the Platform where: (1) Customer is past due on any payment obligation hereunder and fails to pay all amounts owed within 10 days after receiving notice thereof from Freeplay; or (2) Freeplay reasonably believes that Customer’s use of the Platform may be in violation of any Additional Terms, Third Party Agreement, Section 5 or Section 6.3 of this Agreement or applicable Law or present a risk of harm, loss, or liability to Freeplay or any other customer or third party. In such cases, without limiting its obligations under subsection (1) of the preceding sentence, Freeplay will use commercially reasonable efforts to (a) limit the extent and duration of any suspension, (b) notify Customer of any suspension (in advance if possible), and (c) reinstate any suspended access to the Platform as soon as possible.

    15. CONFIDENTIALITY. Each party (“Recipient”) may receive Confidential Information from the other party (“Discloser”) during the Term of this Agreement. Each Recipient agrees to protect from disclosure such Confidential Information with the same degree of care that it affords its own confidential information, but in no event with less than reasonable care, and to only use the Discloser’s Confidential Information as is necessary to perform its obligations and exercise its rights under this Agreement. For purposes of this Agreement, “Confidential Information” means all information regarding a party’s business or affairs, including customer information, marketing information, financial information, data (including software code), business concepts, business strategy, processes, methods, systems, know-how, devices, formulas, product specifications, marketing methods, prices, and customer lists, whether in oral, written, or electronic form, that is either: (1) designated as confidential; (2) of a nature such that a reasonable person would recognize it as confidential; or (3) disclosed under circumstances such that a reasonable person would know it is confidential. The following information will not be considered Confidential Information: (a) information that is publicly available through no fault of the party that was obligated to keep it confidential; (b) information that was known by a party prior to commencement of discussions regarding the subject matter of this Agreement; (c) information that was independently developed by a party; and (d) information rightfully disclosed to a party by a third party without continuing restrictions on its use or disclosure. Each Recipient may disclose the Confidential Information: (i) to the extent necessary to comply with an order or requirement of a judicial or administrative process, provided that Recipient promptly notifies Discloser and allows Discloser sufficient time to oppose such disclosure; and (ii) to its affiliates in connection with its corporate and financial reporting requirements. Upon Discloser’s written request, Recipient will promptly return to Discloser, or destroy (if requested), all the Discloser’s Confidential Information in Recipient’s possession or control and permanently erase all electronic copies of such Confidential Information. Recipient’s obligations under this Section 15 shall continue for 3 years after the termination of this Agreement, except such obligations will survive with respect to trade secrets for so long as any such Confidential Information remains a trade secret under applicable Laws.

    16. DATA PROTECTION. In the course of performing its obligations under this Agreement, Freeplay may receive, store, or otherwise process Personal Data (as defined in the Freeplay Data Processing Addendum available at https://freeplay.ai/legal/dpa (the “DPA”). The DPA is incorporated by reference into this Agreement and sets out the status and responsibilities of the parties in relation to such Personal Data.

    17. NOTICE. All notices, consents, and approvals to be given by a party under this Agreement will be in writing and will either be via: (1) hand-delivery; (2) reputable overnight mail service; (3) certified mail, return receipt requested, to the other party; or (4) in the case of any notice or communication applicable both to Customer and other users of the Platform, Freeplay may instead provide such notice or communication by posting it on the Platform. All notices will be effective upon confirmation or acknowledgment of receipt (or when delivery is refused). Notices to Freeplay shall be addressed to 228 Labs, Inc., 2770 Arapahoe Rd, Suite 132-723, Lafayette, CO, 80026, attention “Legal Department” with a copy to legal@freeplay.ai. Notices to Customer shall be addressed to the Customer’s address set forth on the Order. Either party may change its address for notice by giving notice of the new address to the other party.

    18. FORCE MAJEURE. Except for payment of Fees, neither party will be liable for any delay or failure in performance to the extent resulting from a breach, failure, or delay of the other party or any third party or from any other cause beyond such party’s reasonable control, including any act of God, act of civil or military authorities, act of terrorists, civil disturbance, war, strike or other labor dispute, fire, interruption in telecommunications or network services, epidemic or medical emergency, failure of equipment and/or software, provided that such party takes reasonable steps to minimize the extent and duration of any such failure in performance (each, a “Force Majeure Event”). In the event of a Force Majeure Event, the period for performance hereunder will be extended by the length of the Force Majeure Event (or by such other length of time as is reasonably required).

    19. DISPUTE RESOLUTION. The parties will attempt to resolve all disputes, controversies, or claims arising under, out of, or relating to this Agreement, including the formation, validity, binding effect, interpretation, performance, breach or termination, of this Agreement and the arbitrability of the issues submitted to arbitration hereunder and non-contractual claims relating to this Agreement (each, a “Dispute”) through discussion between the parties. Except as otherwise provided in Section 20, if any Dispute cannot be resolved through negotiations between the parties within 30 days of notice from one party to the other of the Dispute, either party may submit such Dispute for final settlement through binding arbitration by JAMS under its Streamlined Arbitration Rules and Procedures then in effect (the “Rules”). Either party may commence the arbitration by delivering a request for arbitration as specified in the Rules. The arbitration will be conducted before a sole neutral arbitrator selected by agreement of the parties. If the parties cannot agree on the appointment of a single arbitrator within 30 days after either party to this Agreement delivers a request for arbitration, a neutral arbitrator will be selected as provided in the Rules. The arbitration will be conducted in the English language at a site specified by Freeplay in Denver, Colorado. The arbitrator will apply the law set forth in Section 21 to any such arbitration and shall have the power to award any remedy available at law or in equity; provided, however, that the arbitrator shall have no jurisdiction to amend this Agreement or grant any relief not permitted herein or beyond the relief permitted herein. The award of the arbitrator will be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or plead to the arbitrator. The award of the arbitrator may not require payment of the costs, fees and expenses incurred by the prevailing party in any such arbitration by the non-prevailing party. Judgment upon the award may be entered in any court or governmental body having jurisdiction thereof. Any additional costs, fees or expenses incurred in enforcing the award may be charged against the party that resists its enforcement.

    20. INJUNCTIVE RELIEF. Each party acknowledges and agrees that the other party will be irreparably harmed in the event that such party breaches Section 5 or Section 15 and that monetary damages alone cannot fully compensate the non-breaching party for such harm. Accordingly, each party hereby agrees that the non-breaching party shall be entitled to injunctive relief to prevent or stop breaches of such provisions of this Agreement and to enforce specifically this Agreement and the terms and provisions hereof, without the requirement of posting any bond.

    21. CHOICE OF LAWS; VENUE. This Agreement will be governed by the laws of the State of Colorado (USA), without regard to conflicts of law principles thereof. The federal and state courts located in Denver, Colorado (USA) will have sole and exclusive jurisdiction over any disputes arising hereunder and the parties hereby irrevocably submit to the personal jurisdiction of such courts. The parties expressly waive any applications of the U.N. Convention on Contracts for the International Sale of Goods with respect to the performance or interpretations of this Agreement.

    22. EXPORT. Customer will comply with all export and import control laws, rules, and regulations applicable to the access to and use of the Platform Technology. Customer will obtain all licenses, permits, and approvals required by the U.S. government or any other government and under any applicable Laws. Customer will not export or re-export any Platform Technology without all such required licenses, permits, and approvals. Customer will defend, indemnify, and hold harmless Freeplay from and against all fines, penalties, liabilities, damages, costs, and expenses incurred by Freeplay as a result of any violation of such Laws by Customer.

    23. U.S. GOVERNMENT CUSTOMERS. All relevant portions of the Platform and Freeplay Content are each a “commercial item” as that term is defined at FAR 2.101 (Oct 1995), consisting of “commercial computer software” and “commercial computer software documentation,” as such terms are used in 48 CFR 12.212 (Sep 1995), and is provided to the U.S. government only as a commercial end item. Consistent with FAR 12.212 and DFARS 227.7202 (Jun 1995), all U.S. government users acquire the licenses and rights granted with respect to the Platform or Freeplay Content with only the rights expressly set forth herein and no other rights.

    24. ADDITIONAL TERMS. This Agreement, including these Terms, all documents referenced in these Terms, all Orders under these Terms, and the Exhibits attached hereto or thereto, constitutes the complete and exclusive statement of the agreement between Freeplay and Customer relating to the subject matter hereof and supersedes all prior agreements, arrangements, and understandings between the parties relating to that subject matter. Each party acknowledges that in entering into this Agreement it has not relied on any representation, discussion, collateral contract or other assurance except those expressly set out in this Agreement. The terms of this Agreement shall prevail over any additional, conflicting, or inconsistent terms and conditions which may appear on any purchase order furnished by one party to the other, and any additional terms and conditions in any such purchase order shall have no force and effect, notwithstanding the non-furnishing party’s acceptance or execution of such purchase order. Customer may not assign or transfer this Agreement, or any of its rights or obligations under this Agreement, by operation of law or otherwise, without Freeplay’s prior written consent, which consent will not be unreasonably withheld. Any such assignment, delegation or transfer in violation of the foregoing will be null and void. Freeplay shall have the right to assign this Agreement upon notice to Customer. English (as the meaning of the words and phrases thereof are commonly interpreted in the U.S.A.) shall be the language used in all written communications between the parties pursuant to this Agreement, including all notices. The words “include,” “includes” and “including” will mean “include,” “includes,” or “including,” in each case, “without limitation.” This Agreement may be changed only by a writing signed by both parties. The failure of either party to enforce any right or provision in this Agreement will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of each party. Except as expressly set forth in this Agreement, the exercise by either party of any of its rights or remedies under this Agreement will be without prejudice to its other rights or remedies under this Agreement or otherwise. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable Law and the remaining provisions of this Agreement will continue in full force and effect. Except as may be expressly agreed by the parties in writing, there are no third party beneficiaries to this Agreement. The parties are independent contractors, and nothing in this Agreement will be construed as creating an employer-employee relationship, a partnership, or a joint venture between the parties. Neither party is an agent of the other and neither party is authorized to make any representation, contract, or commitment on behalf of the other party. This Agreement may be executed electronically or in one or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

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