Master Subscription Agreement

This Master Subscription Agreement (this “Agreement”) contains terms and conditions that govern your purchase of subscriptions to, and use of, the Services (as defined below), and is a contract between XGenesis, Inc., a Delaware (USA) corporation (“XGen”), and you or the entity or organization that you represent.

If you are an individual using the Services for your own purposes: (1) all references to “Customer” are to you and (2) you represent and warrant that you are at least 18 years of age, or have otherwise reached the age of “majority” where you reside and that you have the right, power, and authority to enter into this Agreement.

This Customer Agreement (this “Agreement”) is entered into as of the Effective Date, by and between XGen and Customer (each, a “Party,” and together, the “Parties”). 

The Parties, by their duly authorized representatives, have executed this Agreement effective on the Effective Date, intending to be legally bound and according to the specifics represented in the appropriate Order Form.

Capitalized terms not defined in this page have the meanings set forth in the Exhibits attached hereto. 

  • Exhibit A – Pricing and Payment
  • Exhibit B – Support Services
  • Exhibit C – Privacy and Security Terms

1. Defined Terms.

Capitalized terms used but not defined herein have the meaning set forth in Section 14.

2. Development.

2.1. Development Services. XGen shall design and develop the Deliverables in accordance with the appropriate Order Form. 

2.2. Development Changes. The Parties understand that there may be development work necessary in order to achieve the Parties’ key performance indicators set forth in the appropriate Order Form.

2.3. Cooperation. Customer shall use commercially reasonable efforts to cooperate with XGen in the Development Services by performing its obligations as set forth in each SOW. In addition, upon XGen’s reasonable request, Customer shall provide to XGen such other information, materials, technical assistance, and cooperation as may be reasonably necessary in order for XGen to carry out the Development Services.

2.4. Subcontractors. XGen may perform any of the XGen Services or its other obligations under this Agreement through subcontractors, and XGen shall remain responsible for such performance by its subcontractors.

3. Usage Rights; Licenses.

3.1. Usage Rights and Licenses by XGen. Subject to Customer’s compliance with the terms of this Agreement (including Sections 3.4 and 5), XGen hereby grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable, revocable license and right during the subscription, solely for Customer’s internal business purposes, to: (a) access and use the XGen Product; (b) download, display, distribute, and reproduce the XGen Data in reports, in print or electronic format; and (c) use, reproduce, copy, and perform all Deliverables.  All rights not expressly granted herein are reserved by XGen.

3.2. License to Customer Deliverables. Subject to Customer’s compliance with the terms of this Agreement (including Sections 3.4 and 5), XGen grants to Customer non-exclusive, non-transferable, non-sublicensable, irrevocable license and right, solely for Customer’s internal business purposes, to use, reproduce, copy, and perform all Deliverables for the Term of this contract.

3.3. License by Customer to Customer Materials. In connection with the XGen Services, Customer may provide XGen with certain software, tools, content, documentation, specifications, and other materials owned by Customer or its licensors (“Customer Materials”). Customer hereby grants to XGen a worldwide, non-exclusive, non-transferable, non-sublicensable, royalty free, revocable license and right during the Term, solely to provide the XGen Services to Customer, to use, download, display, reproduce, copy, distribute, perform, transmit, create derivative works of, make, have made, and import the Customer Materials in electronic or print format.

3.4. Restrictions. Customer shall not, and shall not direct or permit any employee or third party to: (a) license, distribute, market, rent, lease, assign, sublicense, pledge, or otherwise grant or transfer any rights in or to the XGen Services or any portion thereof; (b) disassemble, decompile, or reverse engineer the XGen Services, or any portion thereof, or determine or attempt to determine any source code, algorithms, methods, or techniques used or embodied in the XGen Services or any portion thereof; (c) modify or create derivative works based upon the XGen Services, or any portion thereof; (d) remove or modify any proprietary notices or labels appearing on the XGen Services; (e) copy, duplicate or transpose all or any portion of the XGen Services (except as expressly permitted under Section 3.1); (f) permit the XGen Services to be used for or in connection with any facility management, service bureau, or time-sharing purposes, services, or arrangements, or otherwise used for processing data or other information on behalf of any third party; (g) incorporate the XGen Services or any portion thereof into any other materials, products, or services (except as expressly permitted under Section 3.1); or (h) use the XGen Services for any purpose other than in accordance with this Agreement. For the avoidance of doubt and without limiting the generality of the foregoing, Customer shall not under any circumstances access, view, copy, duplicate, transpose, or disclose any source code related to the XGen Product.

4. Ownership.

4.1. XGen Background IP and XGen Services. Except as expressly set forth in Section 3.1, as between the Parties, XGen (and its licensors, if any) retains sole and exclusive right, title and interest in and to, and Customer irrevocably waives and releases any claim to title and ownership rights to: (a) the XGen Background IP; and (b) the XGen Services.  

4.2. Customer Background IP and Customer Materials. Except as expressly set forth in this Agreement, as between the Parties, Customer retains all rights in and to: (a) the Customer Background IP; (b) the Customer Data; and (c) the Customer Materials.

4.3. Aggregated Data. XGen may aggregate Customer Data and any learning models, statistics, or metadata related to Customer Data with data and metadata of XGen’s other customers or other sources in a way that does not identify Customer (“Aggregated Data”). XGen shall not use or disclose any Customer Data and any learning models, statistics or metadata related to Customer Data for any purpose other than: (i) as necessary to perform its duties under this Agreement; (ii) in an aggregated, anonymous manner to develop and improve the XGen Services.  As between the Parties, XGen is and shall remain the sole and exclusive owner of all right, title and interest in and to the Aggregated Data, and Customer irrevocably waives and releases any claim to title and ownership rights thereto.

4.4. Customer Feedback. Customer may provide suggestions, requests, recommendations, and other feedback concerning the functionality and use of the XGen Services or Deliverables (collectively, “Feedback”) to XGen. Any Feedback shall be the sole property of XGen, and XGen may use such Feedback at its discretion without Customer’s consent. Customer hereby assigns to XGen all right, title, and interest in and to all Feedback, and irrevocably waives and releases any claim to title, and ownership rights thereto.

5. Orders and Payment.

The Parties shall comply with the terms and conditions set forth in Exhibit C.

6. Support.

Subject to Customer’s compliance with its obligations under Section 5, XGen shall provide the Support Services in accordance with Exhibit A.

7. Privacy.

The Parties shall comply with the terms and conditions set forth in Exhibit C.

8. Term and Termination.

8.1. Term. This Agreement shall commence on the Effective Date and, unless earlier terminated pursuant to the terms hereof, shall continue for the initial subscription term (the “Initial Subscription Term”). After the Initial Subscription Term, this Agreement shall not automatically renew and will be subject to a newly established Order Form setting forth the parameters for a renewal subscription. 

8.2. Initial Subscription Term. The initial subscription term shall be set forth in the appropriate Order Form as specified by the Offer Type. 

8.3. Termination for Breach. Either Party may terminate this Agreement upon written notice to the other Party if such other Party fails to perform any of its duties or obligations hereunder and fails to cure such default within thirty (30) days after receipt of written notice from the non-defaulting Party specifying the occurrence or existence of the default.

8.4. Termination for Bankruptcy. If permitted by law, either Party may terminate this Agreement immediately upon written notice to the other Party if the other Party becomes insolvent, makes a general assignment for the benefit of creditors, files a voluntary petition in bankruptcy or for reorganization or arrangement under the bankruptcy laws, if a petition in bankruptcy is filed against the other Party and is not dismissed within sixty (60) days after the filing, or if a receiver or trustee is appointed for all or any part of the property or assets of the other Party.

8.5. Effect of Termination. Upon termination or expiration of this Agreement for any reason: (a) Customer shall immediately cease all access to and use of the XGen Services and Deliverables; (b) at the request of Discloser, Recipient shall immediately return (or destroy in compliance with best industry practices for the destruction of such information) the Confidential Information of Recipient in the possession, custody or control of Discloser; and (c) Customer shall remain obligated to pay to XGen any fees due at or prior to termination or expiration. At the request of a Party, the other Party shall certify in writing that the foregoing provisions, as applicable, have been complied with. Termination or expiration of this Agreement shall not act as a waiver or release, or otherwise restrict either Party from pursuing other remedies available to it, including injunctive relief. 

8.6. Suspension or Termination of Services for Non-Payment. In the event that XGen does not receive payment for the Services when due, XGen may suspend or terminate those Services. During the term of the suspension, Customer shall not have the right to use the Services. If the Services have been terminated, XGen may require an additional fee for reinstatement.  XGen’s suspension and termination rights are in addition to, and not in place of, any other rights and remedies XGen may have on account of nonpayment or late payment.

8.7. Survival. The following terms of this Agreement shall survive any termination or expiration hereof within the terms specified herein and within Exhibits A, B, and C. 

9. Limited Warranty.

9.1. Warranty. XGen represents and warrants that: (a) the XGen Product will operate substantially in accordance with the applicable Documentation; (b) Deliverables will be free from material defects in workmanship and materials to the best of its knowledge; and (c) the XGen Services will be performed in a professional manner. Customer’s sole and exclusive remedy and XGen’s entire liability for any breach of this warranty shall be for XGen to correct the nonconformity or provide Customer with a reasonable workaround to circumvent the nonconformity.

9.2. Disclaimers. 

9.2.1. The foregoing warranty set forth in Section 9.1 is in lieu of all other warranties, and XGen expressly disclaims all other warranties, express or implied, including any implied warranties of merchantability, fitness for a particular purpose, title, accuracy, and noninfringement, and all warranties that may arise out of course of dealing, course of performance, or usage of trade.  without limiting the foregoing, Customer specifically acknowledges that XGen makes no warranty that the XGen services will meet Customer’s requirements or be error-free or without interruption.

9.2.2. The XGen Services may include predictive modeling and/or business analytics services, which are inherently based on various assumptions, conditions, and factors. Inaccurate or incomplete information provided by Customer in connection with the use of the XGen Services could materially affect the output and results of the XGen Services. Accordingly, XGen shall have no liability whatsoever as a result of any information, including inaccurate or incomplete information, provided by the XGen Services.

10. Indemnification.

10.1. Indemnification by XGen. XGen shall defend, indemnify, and hold Customer, its equity holders, officers, directors, employees, agents, consultants, and independent contractors (“Customer Indemnified Parties”) harmless from and against any loss, damage, expense or liabilities (collectively, “Losses”) to the extent resulting from third-party claims, actions, demands, suits, or proceedings (collectively, “Claims”) of United States Intellectual Property infringement or misappropriation relating to the XGen Services. If an injunction is sought or obtained against Customer’s use of the XGen Services as a result of any such infringement claim, XGen may, at its sole option and expense: (a) procure for Customer the right to continue using the affected XGen Services; (b) replace or modify the affected XGen Services so that they do not infringe; or (c) terminate this Agreement upon thirty (30) days’ prior written notice. XGen shall have no liability for and Customer shall indemnify and hold XGen harmless from and against any Losses that may result from any Claims based upon: (i) use of other than the then-current, unaltered version of the applicable XGen Services, unless the infringing portion is also in the then-current, unaltered release; (ii) use, modification, operation, or combination of the applicable XGen Services with non-XGen programs, data, equipment, or documentation if such infringement would have been avoided but for such use, modification, operation, or combination; (iii) compliance with Customer’s designs, specifications, or instructions; or (iv) any third party software. The foregoing constitutes the entire liability of XGen, and Customer’s sole and exclusive remedy with respect to any claims of infringement of third-party rights.

10.2. Indemnification by Customer. Customer shall defend, indemnify, and hold XGen, its stockholders, officers, directors, employees, agents, consultants, and independent contractors (“XGen Indemnified Parties”) harmless from and against any Losses that may result from any third-party Claims relating to an allegation of Customer’s breach of Sections 3.4, 4, 7, or 11.

10.3. Indemnification Procedure. To make a claim for indemnification under this Section 10, the Indemnified Party will promptly notify the indemnifying Party in writing of a claim or suit and will provide reasonable cooperation (at the indemnifying Party’s expense) and full authority to defend or settle the claim or suit; provided, however, that the indemnifying Party may not admit fault in any settlement of any claim or suit against an Indemnified Party without the written consent of the Indemnified Party (which will not be unreasonably withheld or delayed) and that the failure to furnish notice of any claim or suit will not limit the indemnifying Party’s indemnity obligations under this Agreement except to the extent such failure materially prejudices the indemnifying Party’s ability to defend the claim or suit.

11. Confidentiality.

The terms of any confidentiality and/or nondisclosure agreement (an “NDA”) that the Parties may have entered into prior to the Effective Date shall be deemed incorporated into this Agreement by reference.  In addition, the Parties agree to comply with the terms set forth in this Section 11.  In the event of any conflict between an NDA and this Section 11, the terms in this Section 11 shall control.  

11.1. Confidentiality Requirements. Each Party, as Recipient, shall: (a) protect the Discloser’s Confidential Information from unauthorized dissemination and use; (b) use the Discloser’s Confidential Information only for the performance of this Agreement and the exercise of any rights under this Agreement; (c) not disclose any of Discloser’s Confidential Information, or any part or parts thereof, to any of Recipient’s employees, agents, contractors, or any other individuals except to its employees who are under confidentiality obligations no less restrictive than the requirements of this Section 11; (d) not disclose or otherwise provide to any third party, without the prior written consent of Discloser, any of Discloser’s Confidential Information; (e) undertake whatever action is necessary to prevent or remedy any breach of its confidentiality obligations set forth in this Section 11 or any other unauthorized disclosure of any of Discloser’s Confidential Information by its current or former employees, agents, or contractors; and (f) not remove or destroy any proprietary or confidential legends or markings placed upon or contained within the Discloser’s Confidential Information.

11.2. Compelled Disclosure. This Agreement shall not prevent Recipient from disclosing Discloser’s Confidential Information to the extent required by a governmental authority, provided that, in such event and to the extent permitted by applicable laws, Recipient shall promptly notify Discloser to allow intervention (and shall cooperate with Discloser) to contest or minimize the scope of the disclosure (including application for a protective order to the extent permitted by applicable laws). Recipient shall promptly advise Discloser in writing of any misappropriation or misuse of Discloser’s Confidential Information of which Recipient becomes aware.

11.3. Remedies. Recipient agrees that, due to the unique nature of the Confidential Information, the unauthorized disclosure or use of Discloser’s Confidential Information or any other breach of any provision of this Section 11 will cause irreparable harm and significant injury to Discloser, the extent of which will be difficult to ascertain and for which there will be no adequate remedy at law. Accordingly, Recipient agrees that Discloser, in addition to any other available remedies, shall have the right to seek an immediate injunction and other equitable relief enjoining any breach or threatened breach of this Section 11 without the necessity of posting any bond or other security. Recipient shall notify Discloser in writing immediately upon becoming aware of any such breach or threatened breach.

12. Limitation of Liability.

12.1. Exclusion of Damages. In no event shall either Party be liable for any incidental, consequential, punitive, or special damages, damages for lost profits, lost data or lost business, or any other indirect damages, even if such Party has been advised as to the possibility of such damages. XGen shall have no liability with respect to claims relating to or arising from the use of non-XGen products and services, even if XGen has recommended, referred, or introduced Customer to such products and services.

12.2. Damages Cap. Each Party’s entire liability arising from or relating to this Agreement or the subject hereof, under any legal theory (whether in contract, tort, or otherwise), if any, shall not exceed the amount of aggregate fees payable by Customer under this Agreement.

12.3. Exceptions. Sections 12.1 and 12.2 shall not apply to either Party’s liability under Section 10. 

13. Miscellaneous.

13.1. Force Majeure. Except with respect to Customer’s obligation to make timely payments, neither Party will be responsible for any delay or failure in performance to the extent that such delay or failure is caused by fires, strikes, embargoes, explosion, earthquakes, floods, wars, labor disputes, pandemics or epidemics, government requirements, civil or military authorities, acts of God or by the public enemy, inability to secure raw materials or transportation facilities, acts or omissions of carriers or suppliers, or other causes beyond its reasonable control.

13.2. Severability. If the application of any provision of this Agreement to any particular facts or circumstances is held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then: (a) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement shall not in any way be affected or impaired thereby and (b) such provision shall be enforced to the maximum extent possible so as to effect the intent of the Parties and reformed without further action by the Parties to the extent necessary to make such provision valid and enforceable.

13.3. Assignment. This Agreement may not be assigned, in whole or part, whether voluntarily, by operation of law, or otherwise, by Customer without XGen’s prior written consent. Subject to the preceding sentence, the rights and liabilities of the Parties shall bind, and inure to the benefit of, their respective assignees and successors. Any attempted assignment other than in accordance with this Section 13.3 shall be null and void.

13.4. Governing Law, Jurisdiction and Venue. This Agreement shall be construed in accordance with and governed by the internal laws of the State of Delaware without giving effect to any of its conflict of law principles. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be commenced exclusively in the federal courts or state courts in the State of Delaware and each Party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action, or proceeding.

13.5. Attorneys’ Fees. If any legal action, including an action for arbitration or injunctive relief, is brought relating to this Agreement or the breach hereof, the prevailing Party in any final judgment or arbitration award, or the non-dismissing Party in the event of a dismissal without prejudice, shall be entitled to the full amount of all reasonable expenses, including all court costs, arbitration fees, and actual attorneys’ fees paid or incurred in good faith.

13.6. No Waiver. No course of dealing, course of performance, or failure of either Party strictly to enforce any term, right, or condition of this Agreement shall be construed as a waiver of any other term, right, or condition. No waiver or breach of any provision of this Agreement shall be construed to be a waiver of any subsequent breach of the same or any other provision.

13.7. Section Headings; Interpretation. The titles and headings of the sections and paragraphs in this Agreement are intended solely for convenience of reference and are not intended to explain, modify, or interpret the provisions of this Agreement. The word “include” and its derivatives shall not be construed as a term of limitation and shall be interpreted to be followed by the words “without limitation.”

13.8. Relationship of the Parties. This Agreement shall not be construed as creating an agency, partnership, joint venture, or any other form of association, for tax purposes or otherwise, between the Parties, and the Parties shall at all times be and remain independent contractors. Except as expressly agreed by the Parties in writing, neither Party shall have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other Party or to bind the other Party in any respect whatsoever.

13.9. No Third-Party Beneficiaries. This Agreement is not intended to confer any benefit on any person or entity not a party to this Agreement.

13.10. Notices. Any notice, request, demand, or other communication required or permitted under this Agreement shall be in writing, shall reference this Agreement, and shall be deemed to be properly given: (a) when delivered personally; (b) when sent by electronic mail, with written confirmation of receipt by return electronic mail;(c) five (5) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (d) two (2) business days after deposit with an express courier, with written confirmation of receipt. All notices shall be sent to the address or contact information specified on the Cover Page of this Agreement (or to such other address as may be designated by a Party by giving written notice to the other party pursuant to this Section 13.10).

13.11. Publicity. Neither Party will issue any public materials that refer to the other Party, this Agreement, or the XGen Services without the other party’s prior written consent; except that XGen may identify Customer on its Customer list and may use Customer’s name and logo as well as a mutually-agreed general description of the nature of the relationship on XGen’s website and in promotional materials, presentations, and proposals to current and prospective Customers without Customer’s prior written consent. Customer hereby grants XGen a non-exclusive, royalty-free, non-transferable, non-sublicensable, irrevocable, perpetual, worldwide license to use and display Customer’s name and logo for such purpose. Either Party may identify the other Party or disclose the existence of this Agreement to its attorneys, auditors, and in connection with regulatory filings. XGen reserves the perpetual right to publicly publish use-case publications on the effectiveness of XGen’s product on the Customer’s digital platforms provided the use-case content is approved by the Customer, which approval shall not be unreasonably withheld or delayed.

13.12. Compliance with Laws. Customer shall comply with all applicable laws governing Customer’s access to or use of the XGen Services. In particular, Customer shall comply with all applicable laws governing export control and transfer of information into or out of the United States and other jurisdictions in connection with Customer’s access to and use of the XGen Services.

13.13. Restricted Rights. All software and any technical data contained in the XGen Services and Deliverables are “commercial items,” as defined in 48 C.F.R. §2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. §12.212. The use, duplication, reproduction, release, modification, disclosure, or transfer of the XGen Services, and any data relating thereto or derived therefrom, is restricted in accordance with 48 C.F.R. §12.211, 48 C.F.R. §12.212, 48 C.F.R. §227.7102-2, and 48 C.F.R. §227.7202, as applicable. This is in lieu of, and supersedes, any Federal Acquisition Regulations (“FAR”), the Defense FAR Supplement (“DFARS”), or other agency supplemental clause or provision that addresses government rights in computer software or technical data.

13.14. Entire Agreement. This Agreement, any Exhibits, SOWs, and schedules attached to it, and any other terms and conditions incorporated by reference herein, contain the entire understanding of the Parties with respect to the subject matter hereof, and supersede any and all related prior understandings, agreements, representations, negotiations, and discussions, whether oral or written. This Agreement may not be modified or amended except in a writing signed by both Parties.

13.15. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. Delivery of an executed copy by facsimile or electronic mail shall be as effective as delivery of an original signed counterpart, and the Parties agree that faxed or electronically mailed signatures are effective and binding.

14. Definitions.

14.1. “Customer Background IP” means all technology, software, materials, inventions, discoveries, or works of authorship, or any Intellectual Property therein, owned by Customer and conceived, created, or reduced to practice: (a) by or for Customer prior to the Effective Date; or (b) independently and solely developed by Customer during the Term and without use of or reference to XGen Services, XGen Background IP, or XGen’s Confidential Information.

14.2. “Customer Data” means the data provided by Customer or Customer’s representatives to XGen for use in connection with the XGen Services, as well as any changes, corrections, and updates thereto.

14.3. “Confidential Information” means: (a) all data, information, or material that a Party (“Discloser”) or any of its representatives has disclosed or otherwise made available to the other Party (“Recipient”) or any of its representatives, or which Recipient has observed or otherwise obtained from Discloser, whether made available orally, in writing or in electronic format, provided that such information, data, or materials and (b) any copies, extracts, portions, and derivatives of any of the foregoing. “Confidential Information” also includes this Agreement. Notwithstanding the foregoing, “Confidential Information” does not include any data, information, or material that Recipient can reasonably demonstrate: (1) is or becomes publicly known through no wrongful act or omission of Recipient (or any third party acting for Recipient); (2) was rightfully known by Recipient before receipt from Discloser; (3) becomes rightfully known to Recipient without confidential or proprietary restriction from a source other than Discloser that does not owe a duty of confidentiality to Discloser with respect to such Confidential Information; or (4) is independently developed by Recipient without the use of or reference to the Confidential Information of Discloser. The XGen Services, and Aggregated Data shall be Confidential Information of XGen. The Customer Materials and Customer Data shall be Confidential Information of Customer.

14.4. “Deliverables” means all technology, materials, software, tools, data, inventions, works of authorship, and other innovations of any kind, including all Intellectual Property rights therein, made or developed by XGen, alone or with others, in connection with XGen’s provision of XGen Services under this Agreement or any SOW. For the avoidance of doubt, “Deliverables” excludes all Customer Data and Customer Background IP.

14.5. “Documentation” means the user documentation associated with the XGen Product, as made available by XGen to Customer.

14.6. “Intellectual Property” means all intellectual property and other proprietary rights of any type throughout the world, including those existing under patent law, copyright law, moral rights law, trade secret law, and trademark law, as well as any applications, registrations, reissuances, continuations, continuations-in-part, reexaminations, provisionals, divisionals, renewals, extensions, and restorations thereof, and any rights analogous to any of the above in any jurisdiction, now or hereafter in force and effect anywhere in the world.

14.7. “XGen Background IP” means all technology, software, materials, inventions, discoveries, or works of authorship, or any Intellectual Property therein, owned by XGen and conceived, created, or reduced to practice: (a) by or for XGen prior to the Effective Date; or (b) independently and solely by XGen during the Term and without use of or reference to Customer Materials, Customer Background IP, or Customer’s Confidential Information. Without limiting the generality of the foregoing, the XGen Background IP includes the XGen Product and any Intellectual Property therein.

14.8. “XGen Data” means any data, databases, data sets, and data layers provided as a part of the XGen Services which XGen makes available to Customer pursuant to this Agreement (but excluding Customer Data).

14.9. “XGen Product” means the XGen X2Mind Advanced Intelligence engine and any updates or improvements thereto.

14.10. “XGen Services” means the services provided to Customer pursuant to this Agreement, including and/or utilizing any and all of: (a) the XGen Product; (b) the XGen Data; (c) the Documentation; (d) the Development Services; (e) the Support Services; and (f) the Deliverables.

Exhibit A

Pricing and Payment

  1. One-Time Fees. 
    1. Integration. Customer shall pay XGen according to the appropriate Order Form.
    2. Additional One-Time Fees. The Parties agree that any additional services under any additional Order Forms may require additional one-time fees.
  1. Initial Subscription and Support. 
    1. The Initial Subscription fees (the “Committed Services”) and the fees for Support Services set forth in the appropriate Order Form (the “Other Committed Services”) shall become payable per the Payment Term and in the appropriate Order Form.  
  1. Payments. 
    1. The total fees for XGen Services, including the Subscription and Support Fees, and any One-Time Fees shall be specified in the appropriate Order Form.
    2. The Payment Term, Payment Frequency and Payment Type shall be set forth in the appropriate Order Form. 
    3. Any Fees not paid when due shall automatically accrue interest from the date when due until actually paid at a rate of one and one-half percent (1.5%) per month or the highest rate allowed by law, whichever is less. All Fees shall be paid in United States Dollars by check or wire transfer to the address or bank account designated by XGen. All Fees are non-refundable.
  2. Taxes. Customer shall be responsible for and shall pay all taxes, duties, and levies (including sales, withholding, VAT, excise, ad valorem, and use taxes, but excluding taxes on XGen’s net income) of any kind imposed by any governmental agency with respect to the transactions contemplated by this Agreement, including any interest and penalties thereon, irrespective of whether such taxes, duties, or levies are included in any invoice sent to Customer. Customer shall not offset or reduce any amount owed to XGen on account of any such taxes, duties, or levies.

Exhibit B

Support Services

  1. Support Services. Upon the completion of integration (as defined in the Exhibit B SOW), the “Support Services” shall include remote technical maintenance and user support via email and telephone, Monday through Friday from 9:00 AM to 6:00 PM EST, during the Term (excluding federal holidays) and monthly hour limits set forth below. At Customer’s request, XGen may provide additional Support Services to Customer at XGen’s then-current rates for such additional Support Services.
Support Services
Support Service WindowTotal Monthly Hours Per Window

9:00am–6:00pm PST

9:00am– 6:00pm PST
  1. Support Services Fees. In consideration of XGen’s performance of Support Services, Customer shall pay XGen the fees set forth in Exhibit A.
  2. Support Services.  During the Initial Subscription Term, XGen shall provide the following Support Services: 
    1. Deployment StrategyDuring the first two weeks of each quarter of the Initial Subscription Term, XGen shall provide Customer with a deployment strategy update containing recommendations designed to maximize personalization results. 
    2. Training.  At the request of the Customer, training will be scheduled and delivered on XGen’s XPersonalize platform on the use of the features, services and analytics provided by this product.
  3. Cooperation. Customer acknowledges that Customer’s timely provision of (and XGen’s access to) Customer’s materials, assistance, cooperation, and complete and accurate information and data from Customer is essential to the performance of the Support Services, and that XGen shall not be liable for any deficiency in performing the Support Services if such deficiency results from Customer’s failure to reasonably provide such access.

Exhibit C

Privacy and Security Terms

  1. Security. XGen employs commercially reasonable security measures designed to protect the XGen Services. Nevertheless, XGen makes no representation or warranty that its security measures will be effective, and XGen shall not be responsible for any breach of security measures, any viruses or other harmful programming or codes, or the integrity of the XGen Services.
  2. Personal Information. Customer represents and warrants that Customer will not upload, onboard, or otherwise submit, or permit or facilitate the uploading, onboarding, or other submission of, any Personal Information to the XGen Services or Deliverables. “Personal Information” means any information that relates to an identified or identifiable individual or device, including, but not limited to, name, address, telephone number, email address, username and password, photograph, government-issued identifier, or any other information that may be used to identify, contact, or precisely locate an individual or device.
  3. Compliance. Customer shall comply with all applicable laws, rules, regulations, and privacy policies governing the collection, receipt, use, disclosure, storage, security, transfer (including cross-border transfer), disposal, or other processing of Personal Information, in each case in connection with Customer’s access to and use of the XGen Services or Deliverables.