License Agreement

This License Agreement (“Agreement”) is entered into between TrojAI Inc. (“TrojAI”) located at 14 King St., Suite 102, Saint John, New Brunswick, Canada, E2L 1G2, and Customer (“Customer”). TrojAI and Customer agree that the following terms and conditions will apply to the licenses and services provided under this Agreement and orders placed thereunder.

WHEREAS TrojAI provides software solutions that assess, measure, and track artificial intelligence, machine learning and large language model risks and vulnerabilities to improve real-world performance of these models and effectively manage risk exposure;

AND WHEREAS Customer desires to license the Software from TrojAI on the terms and conditions set out in this Agreement;

NOW THEREFORE in consideration of the premises and the mutual agreements hereinafter set out and of other consideration (the receipt and sufficiency of which are acknowledged by each party), the parties covenant and agree as follows:

Definitions
‍“Customer Data” means the data submitted by or for Customer or collected and processed by or for Customer using the Software.
“Documentation” means any supporting user or technical documentation provided with the Software.
“Intellectual Property” means any property, tangible or intangible, that may be subject to Intellectual Property Rights, including without limitation, ideas, formulae, algorithms, concepts, techniques, processes, procedures, approaches, methodologies, plans, systems, research, information, documentation, data, data compilations, specifications, requirements, designs, diagrams, programs, inventions, technologies, software (including its source code), tools, products knowledge, know-how, including without limitation, trade secrets, and other materials.
“Intellectual Property Rights” means (a) any and all proprietary rights anywhere in the world provided under (i) patent law; (ii) copyright law, including moral rights; (iii) trademark law; (iv) design patent or industrial design law; (v) semiconductor chip or mask work law; (vi) trade secret law; (vii) privacy law; or (viii) any other statutory provision or common law principle applicable to this Agreement which may provide a right in either (A) Intellectual Property; or (B) the expression or use of Intellectual Property; and (b) any and all applications, registrations, licenses, sub-licenses, franchises, agreements or any other evidence of a right in any of the foregoing.
“Release” means any release of the Software that TrojAI makes available to the Customer.
“Software” means the TrojAI proprietary software product(s) provided in connection with this Agreement as set out in an order, in object code form, including any Releases or Versions provided to or purchased by the Customer under Support Services. Unless otherwise noted, the Software and Documentation are referred to collectively herein as “Software.”
“Subscription Period” mean the license period identified in an order.
“Support Services” means, with respect to the Software, the support and maintenance services for the Software as set out and described in TROJAI’s standard support and maintenance terms.
“Version” means each issuance of a Release of the Software, which provides enhancements to the current functionality of the current Release.
‍License
1. Grant of License. Subject to all of the terms and conditions of this Agreement, TrojAI hereby grants the Customer a non-transferable, non-sublicensable, non-exclusive license to use the Software in machine-readable form on any computer and operating system for which it was intended, but solely: (a) for Customer’s own internal business purposes; (b) in accordance with the Documentation; and (c) in accordance with any additional license term, subscription term or other user, seat, computer, field of use or other restrictions set forth in this Agreement or otherwise specified upon purchase.
2. Installation and Copies. TrojAI shall make available the Software and Documentation by disk, other media, or make it available for download in electronic form. TrojAI shall also provide the Customer with electronic passwords or other enabling mechanisms if necessary to permit the licensed usage of the Software. All licenses shall commence, and delivery shall be deemed to occur, as of the Effective Date (or, if later, such date on which the Software and license keys are first made available to the Customer). If the Software requires license keys to operate as licensed to the Customer, TrojAI will deliver such license keys to Customer.
3. License Restrictions. The Customer shall not (and shall not allow any third party to): (a) decompile, disassemble, or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions); (b) distribute, sell, sublicense, rent, lease, or use the Software (or any portion thereof) for time sharing, hosting for a third party, service provider, or like purposes; (c) remove any product identification, proprietary, copyright, or other notices contained in the Software; (d) modify or translate any part of the Software, create a derivative work of any part of the Software, or incorporate the Software into or with other software, except to the extent expressly authorized in writing by TrojAI; (e) attempt to circumvent or disable the security key mechanism that protects the Software against unauthorized use (except and only to the extent that applicable law prohibits or restricts such restrictions); or (f) publicly disseminate performance information or analysis (including, without limitation, benchmarks, security threats detected) from any source relating to the Software.
4. Evaluation Software. Subject to the terms and conditions of this Agreement and during the Term of this Agreement, TrojAI may, in its discretion, provide the Customer with pre-release, beta or other Software on an evaluation basis (“Evaluation Software”). The Customer may use Evaluation Software solely for internal evaluation purposes for 30 days from receipt of the Evaluation Software (unless otherwise agreed by TrojAI in writing) (the “Evaluation Period”). Unless the Customer pays the applicable license fee for the Software, the Evaluation Software may become inoperable and, in any event, the Customers’ right to use the Evaluation Software automatically expires at the end of the Evaluation Period. Evaluation Software shall be subject to all restrictions on Software set forth in this Agreement. The Customer shall treat all Evaluation Software as Confidential Information (as defined in Section 12.1) of TrojAI and shall return or destroy any copies of Evaluation Software upon expiration of the applicable Evaluation Period. Any and all suggestions, reports, ideas for improvement and other feedback of any type the Customer provides regarding the Evaluation Software are the sole property of TrojAI, and TrojAI may use such information in connection with any of its products or services without any obligation or restriction based on intellectual property rights or otherwise. The Customer acknowledges that all Evaluation Software is provided “AS IS” and may not be functional on any machine or in any environment. THE WARRANTY DISCLAIMERS IN SECTION 8 APPLY TO EVALUATION SOFTWARE.
Use of Data
1. Consent to Use of Data. TrojAI may, directly or through third parties, collect and use technical information, information about the Customer, and/or data that the Customer provides in relation to the Customers’ use of the Software or the provision of maintenance and technical support for the Software. TrojAI will not use such information in a form that personally identifies the Customer except to the extent necessary to provide maintenance and technical support, or to enhance the Customers’ use of the Software including requesting feedback on the Software, providing critical updates, notifications regarding pre-release Software, or to improve the Software. The Customer acknowledge that, to the extent permitted by law, TrojAI assumes no responsibility for storage of Customer data or information.
Ownership
1. TrojAI’s Ownership: Customer acknowledges and agrees that TrojAI and its licensors own the Software, any modifications to the Software, including any and all Versions or Releases, Documentation and any modifications thereto, or any customizations, and all Intellectual Property Rights in and to each of the foregoing. Customer does not acquire any rights, title or ownership interests of any kind whatsoever, express or implied, in any of the foregoing other than the license granted herein.
2. Copies: Customer shall not copy the Software except (i) in connection with the installation of the Software as contemplated in this Agreement, and (ii) one (1) copy for backup and disaster recovery purposes. Customer agrees that any copies of the Software it makes will bear all copyright, trademark and/or other proprietary notices of TrojAI and its licensors included in the Software.
3. Records: Customer shall keep accurate records of all copies it makes of the Software setting forth the number of copies made and the installation location of each copy.
Payment
1. Fees. Customer will pay all fees as set out in an Order (the “Fees”). Except as otherwise specified herein, (i) Fees are based on the subscription purchased and not actual usage, and (ii) payment obligations are non-cancelable and Fees paid are non-refundable. Customer agrees to pay the Fees and applicable taxes in accordance with the payment terms as set out in an Order.
2. Invoicing and Payment. Upon execution of this Agreement and on the anniversary thereafter, as applicable, TrojAI will invoice Customer the applicable amount of Fees owing, plus applicable Taxes, annually in advance and invoiced Fees and Taxes are due and payable net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to TrojAI and notifying TrojAI of any changes to such information.
3. Overdue Charges. If any invoiced amount is not received by TrojAI by the due date, then without limiting TrojAI’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month (being 18% per annum) and (b) TrojAI may condition future subscription renewals on payment terms shorter than those specified in this Agreement or payment in advance.
4. Suspension for Non-Payment. TrojAI may immediately suspend Customer’s license to use the Software if Customer fails to make any payment due in respect of the Software and does not cure such non-payment within 10 business days after receiving notice of such failure. Any suspension of the rights hereunder by TrojAI under the preceding sentence shall not excuse Customer from its obligation to make all payment(s) under the Agreement.
5. Payment Disputes. TrojAI will not exercise its rights under Sections 5.3 or 5.4 above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.
6. Taxes. The Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, services, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If TrojAI has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, TrojAI will invoice Customer and Customer will pay that amount unless Customer provides TrojAI with a valid tax exemption certificate authorized by the appropriate taxing authority.
Term of Agreement
1. Term and Renewal. The term of this Agreement shall commence on the Effective Date and continue for a the duration of the Subscription Period (the “Initial Term”), unless terminated earlier in accordance with the provisions contained herein. Unless either party notifies the other in writing at least 90 days prior to the end of the Initial Term, or the applicable Renewal Term, this Agreement and the rights and obligations of the parties hereto shall automatically renew for additional 12-month periods (a “Renewal Term”) at the then-current Fees. For the purposes of this Agreement, the Initial Term and any Renewal Term shall be considered, the “Term”.
2. Termination. A party may terminate this Agreement for cause (i) upon 90 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
3. Termination by TrojAI. TrojAI may terminate this Agreement immediately upon giving written notice of such termination if Customer (i) fails to pay in full any sum owing by it under this Agreement by the due date thereof and such failure continues for a period of 10 business days after delivery of a written notice by TrojAI requiring Customer to correct such failure, (ii) infringes the Intellectual Property Rights of TrojAI or (iii) breaches Section 2.3.
4. Surviving Provisions. Sections 5, 6.4, 7, 8, 10, 11, 12, and 14 will survive any termination or expiration of this Agreement.
Proprietary Rights and Licenses
1. Intellectual Property Rights.
  1. Customer acknowledges and agrees that, as between Customer and TrojAI, TrojAI owns all worldwide right, title and interest, including all Intellectual Property Rights, in and to: (i) the Software; (ii) Documentation; and (iii) any modifications, enhancements, upgrades, updates or customization to the Software, or Documentation, including Derivative Data (as defined below). Customer does not acquire any rights, title or ownership interests of any kind whatsoever, express or implied, in any of the foregoing other than the licenses granted herein.
  2. TrojAI acknowledges and agrees that all worldwide right, title and interest including, all Intellectual Property Rights in and to the Customer Data shall be the exclusive property of Customer. TrojAI does not acquire any rights, title or ownership interest of any kind whatsoever, express or implied, in any of the Customer Data, other than the license granted herein.
2. License by Customer to Use Feedback. Customer grants to TrojAI and its affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer relating to the operation of TrojAI’s or its affiliates’ services.
3. Data Privacy. In no event shall Customer provide to TrojAI any Personal Information, nor does TrojAI want to receive any Personal Information in the provision of the Support Services, unless explicitly agreed by TrojAI in advance and subject to the data protection addendum available from TROJAI. TrojAI will only access Customer Data for the limited purpose to support and maintain Software. No Customer Data will be disclosed to any government or third party, except as necessary to comply with the law or a binding governmental order. Unless prohibited by law or a binding governmental order, TrojAI will provide Customer written notice of any legal requirement or order referred to in this Section 7.3.
Warranty Disclaimers
‍THE SOFTWARE AND ALL SERVICES ARE PROVIDED “AS IS.” TROJAI DOES NOT WARRANT THAT CUSTOMER USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY SECURITY MECHANISMS IMPLEMENTED BY THE SOFTWARE WILL NOT HAVE INHERENT LIMITATIONS. NEITHER TROJAI NOR ITS SUPPLIERS OR LICENSORS OF THIRD PARTY SOFTWARE MAKES ANY OTHER WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT.
indemnification
1. Customer will indemnify and hold TrojAI and its affiliates harmless from all claims, actions, damages liabilities, costs and expenses suffered or incurred by TrojAI and caused, directly or indirectly, by: (i) the fault or negligence of Customer or any of its employees, agents or representatives; (ii) Customer’s breach of any instructions or specifications provided by TrojAI with respect to any Software; (iii) any breach by the Customer or any of its employees, agents or representatives of TrojAI or any third party right, including TrojAI or any third party’s Intellectual Property Rights; or (iv) breach or violation by Customer or any of its employees, agents or representatives of any applicable law.
2. TrojAI will indemnify and hold Customer and its affiliates harmless from all claims, actions, damages liabilities, costs and expenses suffered or incurred by Customer and caused, directly or indirectly, by: (i) any claim of infringement, misappropriation or violation of any Intellectual Property Rights in respect of the Customer’s use of the Software; (ii) any breach by TrojAI or any of its employees, agents or representatives of any third party right, including any third party’s Intellectual Property Rights; or (iii) breach or violation by TrojAI or any of its employees, agents or representatives of any applicable law.
3. These indemnification obligations of shall not apply if the party claiming the right of indemnification (“Indemnitee”) fails to timely notify the party providing the indemnification (“Indemnitor”) in writing of any such claim. Indemnitor is permitted to control fully the defense and any settlement of any such claim as long as such settlement shall not include a financial obligation on Indemnitee. In the event Indemnitee declines Indemnitor’s offered defense, or otherwise fails to give full control of the defense to Indemnitor’s designated counsel, then Indemnitee waives Indemnitor’s obligations under this Section 9.3. Indemnitee shall cooperate fully in the defense of such claim and may appear, at its own expense, through counsel reasonably acceptable to Indemnitor. Indemnitor may settle or mitigate damages arising from any claim or potential claim, by substituting alternative substantially equivalent non-infringing software, content and supporting documentation for the Software. Indemnitee shall not undertake any action in response to any infringement or misappropriation, or alleged infringement or misappropriation that is prejudicial to Indemnitor’s rights. The provisions of this Section 9.3 state the sole, exclusive and entire liability of Indemnitor and its affiliates or any third party that provides a Service to Indemnitee, with respect to this Section 9.3.
Support & Maintenance
‍TrojAI will provide Support Services during the Subscription Period as part of the Fees.
Limitation of Remedies and Damages
1. NEITHER TROJAI NOR ITS SUPPLIERS SHALL BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
2. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, TROJAI AND ITS SUPPLIERS’ AND THIRD PARTY SOFTWARE LICENSOR’S ENTIRE LIABILITY TO THE CUSTOMER UNDER THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY THE CUSTOMER TO TROJAI UNDER THIS AGREEMENT IN THE PREVIOUS TWELVE (12) MONTHS, OR IF THIS AGREEMENT HAS NOT BEEN IN EFFECT FOR TWELVE (12) MONTHS, THE MONTHLY AVERAGE OF FEES PAID IN THE MONTHS PROCEEDING THE DATE OF THE LIABILITY EVENT DURING WHICH THE AGREEMENT HAS BEEN IN EFFECT TIMES TWELVE (12).
3. The parties agree that the limitations specified in this Section 11 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
Confidentiality Obligations
1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing), the Software and Documentation, Customer Data (which is the Confidential Information of the Customer), business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
2. Confidentiality. Subject to Section 12.4, and unless the Disclosing Party expressly agrees in writing otherwise, the Receiving Party will: (a) use the Disclosing Party’s Confidential Information only during the Term and only as necessary to perform the Receiving Party’s obligations under this Agreement; (b) disclose the Disclosing Party’s Confidential Information only to the Receiving Party’s directors, officers, agents, employees and authorized subcontractors and their employees and only to the extent that such disclosure is necessary to perform the Receiving Party’s obligations or exercise the Receiving Party’s rights under this Agreement. Customer shall not disclose any performance, benchmarking, or feature-related information about the Software.
3. Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
4. Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.
5. Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
6. Return of Confidential Information. Upon Disclosing Party’s written request upon expiration or termination of this Agreement (or at any earlier time upon written request by the Disclosing Party), the Receiving Party will: (a) promptly deliver to the Disclosing Party all originals and copies, in whatever form or medium, of all the Disclosing Party’s Confidential Information and all documents, records, data and materials, in whatever form or medium, containing such Confidential Information in the Receiving Party’s possession, power or control and the Receiving Party will delete all of the Disclosing Party’s Confidential Information from any and all of the Receiving Party’s computer systems, retrieval systems and databases; and (b) request that all persons to whom it has provided any of the Disclosing Party’s Confidential Information comply with this Section 12.6.
Export Compliance; Compliance with Laws
1. Export Compliance. The Customer acknowledges that the Software may be subject to export restrictions by the Canadian and United States government and import restrictions by certain foreign governments. The Customer shall not, and shall not allow any third party to, remove or export from Canada or United States or allow the export or re-export of any part of the Software or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Table of Denial Orders or U.S. Treasury Department’s list of Specially Designated Nationals, or the Canadian equivalents; (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States or Canadian government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States, Canada or foreign agency or authority. The Customer agrees to the foregoing and warrants that the Customer is not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list.
2. Compliance with Laws. The Customer is responsible for complying with all applicable laws, regulations and codes of practice in the Customers’ use of the Software and any results derived from the Software.
General
1. Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. TrojAI may assign this Agreement to any affiliate or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of TrojAI’s assets or voting securities. The Customer may not assign or transfer this Agreement, in whole or in part, without TrojAI’s written consent. Any attempt to transfer or assign this Agreement without such written consent will be null and void.
2. Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
3. Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the Province of Ontario and the applicable federal laws applicable therein, without regard to its conflict of law principles. The courts located in the Province of Ontario shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement and each party hereby consents to the exclusive jurisdiction of such courts.
4. Notices and Reports. Every notice or other communication hereunder shall be deemed to have been duly given and made if in writing and if served by personal delivery upon the Party for whom it is intended, if delivered by registered or certified mail, return receipt requested, or by a national courier service, or if sent by email (receipt of which is confirmed) to the person at the address set out above, addressed to the President of such party, unless another officer of the party is otherwise specified.
5. Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived.
6. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. No provision of any purchase order or in any other business form employed by the Customer will supersede the terms and conditions of this Agreement, and any such document issued by a party hereto relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
7. Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
8. Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events, which occur after the signing of this Agreement and which are beyond the reasonable control of the parties, such as strikes, blockade, war, terrorism, riots, natural disasters, refusal of license or changes in law or regulations by the government or other governmental agencies, in so far as such an event prevents or delays the affected party from fulfilling its obligations and such party is not able to prevent or remove the force majeure event at reasonable cost.
9. Government End-Users. The Software is commercial computer software. If the user or licensee of the Software is an agency, department, or other entity of the Government of the United States, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Software was developed fully at private expense. All other use is prohibited.