TERMS OF SERVICE

Effective: 2024-12-10

These Terms of Service (the “Agreement”) contain the terms and conditions that govern your access to and use of the Services and is an agreement between you or the business you represent (together, “Customer”) and Convictional, Inc. (“Convictional”). By registering for or using the Services, you (on behalf of yourself or the business you represent) agree to be bound by the terms of this Agreement, as well as our Privacy Policy located at https://decide.convictional.com/policies/privacy_policy. Convictional and Customer may be singularly or collectively referred to in this Agreement as the “Party” or the “Parties”, respectively. In consideration of the mutual promises contained herein and for other good and valuable consideration, the Parties hereto agree as follows:

1. 1. Definitions.

   1. 1.1 "Customer Data" means data or information imported or input into the Service by or on behalf of Customer.
   2. 1.2 “Service” means the online platform and all other products and services made available by Convictional to Customer from time to time, including associated documentation made available to Customer in written form.
   3. 1.3 “System” means Customer’s servers and other information technology systems and equipment.

2. 2. Access and Use of the Service.

   1. 2.1 Right to Access and Use. Subject to Customer’s full and ongoing compliance with the terms and conditions of this Agreement, Convictional grants Customer a limited, personal, non-exclusive, non-transferable, non-sublicensable right to access and use the Service for Customer’s internal business purposes. Customer must be the age of majority in its jurisdiction to use the Services.
   2. 2.2 Third-Party Software. The Service may include or incorporate third-party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Service is provided to Customer subject to this Agreement, nothing in this Agreement prevents, restricts, or is intended to prevent or restrict Customer from obtaining Third-Party Components under the applicable third-party licenses or to limit Customer’s use of Third-Party Components under those third-party licenses.
   3. 2.3 Security. Convictional uses commercially reasonable efforts to implement reasonable security measures designed to secure the Service against unauthorized access to or alteration of Customer Data; provided that, as between Customer and Convictional, Customer is solely responsible for maintaining the security and operability of its systems and ensuring timely transmission of, and the accuracy, quality, integrity, and reliability of, all Customer Data. For any breach of this warranty, Customer’s exclusive remedy is termination pursuant to Section 9.1 below.
   4. 2.4 Customer Responsibilities. As between Customer and Convictional, Customer is solely responsible for all activities that occur under Customer’s user account and sub-accounts. Customer will: (i) obtain and maintain all equipment and any ancillary services needed to connect to, access or otherwise use the Service and ensure that its equipment meets the minimum system guidelines set forth in the applicable documentation; (ii) to the extent applicable, provide Convictional sufficient access to its Systems as may be necessary to extract the Customer Data and to provide the Service; and (iii) have sole responsibility for the accuracy, quality, integrity, reliability, and appropriateness of all Customer Data provided to Convictional hereunder, and for ensuring that all necessary rights, notices, and permissions have been obtained the provision of such Customer Data to Convictional for the uses provided herein. Unless otherwise agreed to by Convictional in writing, Customer will also ensure that Customer Data does not include any data that is or is reasonably likely to be subject to any laws outside of the United States. Customer will comply with any acceptable use policy made available by Convictional. Unless expressly permitted in the applicable documentation, Customer will not: (a) use the Service for activities where use or failure of the Service could lead to death, personal injury or environmental damage, including life support systems, emergency systems, nuclear facilities, autonomous vehicles or air traffic control; or (b) submit to the Service: (w) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented), (x) credit, debit, bank account, or other financial account numbers, (y) social security numbers, driver’s license numbers, or other government ID numbers, or (z) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation. Customer acknowledges that the Service is not designed for (and Convictional has no liability for) use prohibited in this Section 2.4. Customer will use reasonable efforts to prevent any unauthorized use of the Service and immediately notify Convictional in writing of any unauthorized use that comes to Customer’s attention. If there is unauthorized use by anyone who obtained access to the Service directly or indirectly through Customer, Customer will take all steps reasonably necessary to terminate the unauthorized use. Customer will cooperate and assist with any actions taken by Convictional to prevent or terminate unauthorized use of the Service.
   5. 2.5 Use of Customer Data. Customer agrees that Convictional may collect, access, store, use, disclose, or otherwise process (“Process”) any Customer Data and other data made available to Convictional by or on behalf of Customer: (i) in connection with its operation the Service and the performance of its obligations and exercise of its rights hereunder; and (ii) to derive or generate aggregated, de-identified data (“Aggregated Data”). Customer Data does not include Aggregated Data or any other data or other routines generated by Convictional through any automated data analysis, processing, or other normal operations of the Service, including but not limited to Customer’s use thereof (collectively, “Usage Data”). As between the parties, Convictional owns all right, title and interest in and to the Usage Data, and may and Process Usage Data without restriction. Convictional may remove or restrict access to Customer Data, including if Convictional believes such data may violate applicable law, if the source of such data becomes unavailable, or if a third party brings or threatens legal action against Convictional or a third party. Customer represents: (i) that it has provided all notices and obtained all rights, permissions, consents, and approvals for Convictional to Process Customer Data pursuant to the Agreement; (ii) that there is no software or materials subject to an “open source license” (as that term is commonly understood) included in the Customer Data; and (iii) to comply with all laws applicable to Customer’s performance under this Agreement.
   6. 2.6 Service Guidelines. Customer will use the Service solely as contemplated by this Agreement and will not: (i) submit or transmit material containing software viruses or other harmful or deleterious computer code, files, scripts, agents, or programs to or through the Service or transmit unlawful, immoral, incorrect, misleading, deceptive, libelous, tortuous, infringing, defamatory, threatening, vulgar or obscene material or material harmful to minors, or collect data regarding others without their consent; (ii) interfere with or disrupt the integrity or performance of the Service or the content, data, or information contained therein; (iii) circumvent any user limits or other license timing or use restrictions that are built into the Service; (iv) disassemble, reverse engineer, or decompile any of the Technology, or attempt to do so; (v) “frame”, “mirror”, or otherwise embed or incorporate any of the Service or any content, data, or information contained therein (other than Customer Data) in any Customer or third-party system or service; (vi) use the Service for any benchmarking activity or access the Service to build a competitive product or service, reproduce features of the Service, or resell the Service; (vii) rent, lease, sublicense, provide, divulge, disclose, make available to, or otherwise permit third parties to use any of the Services; (viii) implement any API in any software or to support any interfaces between computing devices or computing functions other than as expressly permitted; (ix) distribute or otherwise disclose any API, sample source code or derivative works of the sample source code, or software to any third party; (x) interfere with the normal operation of any API; (xi) use the Service to offer or procure illegal goods; (xii) violate any resale restriction policies applicable to purchases made by Customer through the Service; or (xiii) cause or permit any third party to do any of the foregoing.
   7. 2.7 Feedback. If Customer provides any feedback to Convictional concerning the functionality and performance of the Service (including identifying potential errors and improvements), Customer hereby grants to Convictional a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, and unlimited right to use, modify, license, sublicense, and otherwise exploit all or part of the feedback or any derivative thereof in any manner or media now known or hereafter devised.

3. 3. Proprietary Rights.

   1. 3.1 Reservation of Rights. Customer acknowledges that in providing the Service, Convictional utilizes: (i) Convictional’s name, Convictional’s logo, Convictional’s websites and related domain names, the product names associated with the Service, and other trademarks; (ii) certain audio and visual information, documents, software and other works of authorship; (iii) analytical, predictive, and optimization models, frameworks, rules, algorithms, and similar systems, data mining and other algorithms, and any other technology, software, hardware, products, processes, algorithms, know-how and other trade secrets, techniques, designs, inventions and other tangible or intangible technical material or information (collectively “Technology”). As between Customer and Convictional, Convictional reserves all rights, title and interest, including all intellectual property rights in and to, the Technology, the Service and any associated aggregated, anonymized datasets generated, any work product created, developed, together with any and all modifications, customizations or improvements to any of the foregoing, including any AI or machine learning models, algorithms, neural nets, and similar technologies that may be enhanced, expanded, developed, or otherwise improved through the provision of the Service and through the processing and use of Customer Data (“Derivatives”). Other than as expressly set forth in this Agreement, no license or other rights in the Technology or Derivatives are granted to Customer.
   2. 3.2 Data. Convictional acknowledges that, as between Convictional and Customer, Customer retains all its ownership rights in and to its Customer Data. Customer hereby grants to Convictional and its successors, a worldwide, nonexclusive right and license to Process any Customer Data and the know-how and analytical results resulting therefrom (including any and all machine learning, trained models, and other similar materials) in connection with the enhancement, improvement, and provision of the Service and derivatives thereof (including Convictional’s Technology and Derivatives), provided that the foregoing is not a license to provide or disclose any Customer Data to any third party in raw, identifiable, or disaggregated form, or to identify Customer as the source of any such Customer Data or analytical results.

4. 4. Confidentiality.

   1. 4.1 Definition of Confidential Information. As used herein, “Confidential Information” means any information disclosed by either Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), either directly or indirectly, in writing, orally or by inspection of tangible objects (including without limitation documents, prototypes, samples, plant and equipment), which is designated as “Confidential,” “Proprietary” or some similar designation at the time of disclosure. The Confidential Information of Convictional will include the terms and conditions of this Agreement, the Technology, the Derivatives, and the Service. The Confidential Information of Customer will include the Customer Data. Notwithstanding the foregoing, Confidential Information will not include any information that: (i) is or becomes generally known to the public without the Receiving Party's breach of any obligation owed to the Disclosing Party; (ii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the Receiving Party’s possession; (iii) is received from a third party who obtained such Confidential Information without any third party's breach of any obligation owed to the Disclosing Party; or (iv) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s files and records.
   2. 4.2 Confidentiality. The Receiving Party will not: (i) use any Confidential Information of the Disclosing Party for any purpose other than to exercise its rights or to perform its obligations under this Agreement; or (ii) disclose, publish, or disseminate Confidential Information of the Disclosing Party to anyone other than the Receiving Party’s employees, contractors, consultants and other third parties (collectively, “personnel”) who have a need to know the Confidential Information for the purposes set forth in this Agreement and who are bound by a written agreement that prohibits unauthorized disclosure or use of Confidential Information that is at least as protective of the Confidential Information as the Receiving Party’s obligations hereunder. Notwithstanding the foregoing, the Receiving Party will have the right to share the existence and nature of this Agreement with potential investors or acquirers, or with such Party’s attorneys, accountants, bankers, or other professional advisors in connection with a financing, merger, acquisition, corporate reorganization, consolidation, or sale of all or substantially all of its assets, or as required by law.
   3. 4.3 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 will either Party exercise less than reasonable care in protecting such Confidential Information.
   4. 4.4 Compelled Disclosure. The Receiving Party may disclose the Disclosing Party’s Confidential Information if required by law so long as the Receiving Party gives the Disclosing Party prompt written notice of the requirement prior to the disclosure and assistance in obtaining an order protecting the information from public disclosure.

5. 5. Representations and Warranties.

   1. 5.1 By Convictional. Convictional represents and warrants to Customer that it has all necessary right, power, and authority to enter into this Agreement and provide the Service to Customer in accordance with the terms of this Agreement without any conflict or breach of any contract or obligation to any third party.
   2. 5.2 By Customer. Customer represents and warrants to Convictional that: (i) Customer has the necessary right, power, and authority to enter into this Agreement without any conflict or breach of any contract or obligation to any third party, and to use and to permit the use of, the Systems, Customer Data, and other materials and information used, stored or processed in the course of using or permitting the use thereof in connection with the Service; (ii)  Customer will not Process through the Service or provide to Convictional or the Service any personal data, personal information or personally identifiable information; (iii) Customer is in compliance with, and will not violate any applicable law, including privacy and data protection laws and regulations, or Customer’s internal privacy policies, in connection with the Processing of personal data, personal information or personally identifiable information, the Systems, Customer Data, and any other materials used in connection with the Service; and (iv) Customer has and will retain sole responsibility for all Customer Data and all information, instructions, and materials provided by or on behalf of Customer in connection with the Service. In the event of a breach or reasonably anticipated breach of the foregoing warranties, in addition to any other remedies available at law or in equity, Convictional will have the right to immediately, in Convictional’s sole discretion, suspend any related Service if deemed reasonably necessary by Convictional to prevent any harm or liability to it or any third party.
   3. 5.3 THE FOREGOING REPRESENTATIONS AND WARRANTIES WILL BE THE PARTIES’ EXCLUSIVE REPRESENTATIONS AND WARRANTIES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. THE SERVICE IS PROVIDED “AS IS”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CONVICTIONAL HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, ACCURACY, RESULTS, AND FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED.

6. 6. Limitations of Liability.

   1. 6.1 Exclusions. EXCEPT WITH RESPECT TO ANY MATERIAL BREACH OF A PARTY’S OBLIGATIONS OF CONFIDENTIALITY, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY HEREUNDER FOR ANY LOST PROFITS, LOSS OF DATA, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
   2. 6.2 Maximum Liability. IN NO EVENT WILL CONVICTIONAL'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID OR PAYABLE BY CUSTOMER TO CONVICTIONAL FOR THE SERVICES GIVING RISE TO THE APPLICABLE LIABILITY DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE.

7. 7. Indemnification.

   Customer will, at its own expense, indemnify and hold harmless Convictional against all losses, costs, and expenses arising out of a claim against Convictional to the extent caused by Customer’s products (including their offer, sale, performance, and fulfillment), Customer Data, and any actual or alleged infringement of any third-party intellectual property rights by any of the foregoing, and any personal injury, death, or property damage related thereto. Convictional will provide Customer with: (i) prompt written notice of such claim; (ii) sole control over the defense and settlement of such claim; and (iii) proper and full information and assistance, at Convictional’s expense, to settle and/or defend any such claim. Customer will have no obligation to Convictional under this Section 7 to the extent such claims arise from Convictional’s breach of this Agreement.

8. 8. Third Party Content and Services.

   Customer acknowledges and agrees that the Service may contain content from third parties. If Customer elects to have any business dealings with any third party whose products or services may be on the Service, Customer acknowledges and agrees that such dealings are solely between Customer and such third party and Customer further acknowledges and agrees that Convictional will not have any responsibility or liability for any losses or damages that Customer may incur as a result of any such dealings. The Service may also contain links to third-party websites. Linked websites are not under Convictional’s control, and Convictional is not responsible for their content. The presence on the Service of a link to any other websites or any content does not imply that Convictional endorses or accepts any responsibility for the content or use of such websites, and Customer hereby releases Convictional from all liability and damages that may arise from Customer’s use of such websites or receipt of services from such websites.

9. 9. Term and Termination.

   1. 9.1 Termination. Either Party will have the right to terminate this Agreement, upon written notice, at any time.
   2. 9.2 Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason: (i) Convictional may immediately cease providing the Service hereunder; and (ii) within 30 days after such expiration or termination, each Party will return the tangible embodiments of the other Party’s Confidential Information in its possession and will not retain any copies of such Confidential Information except as required to comply with any applicable legal or accounting record keeping requirement.
   3. 9.3 Survival. The following provisions (and such other provisions that by their express terms survive expiration or termination of this Agreement) will survive any expiration or termination of this Agreement: Sections 2.8 (Customer Responsibilities), 2.9 (Use of Customer Data), 2.10 (Service Guidelines), 3 (Proprietary Rights), 4 (Confidentiality), 5.3, 6 (Limitations of Liability), 7 (Indemnification), 9.2 (Effect of Termination), and 10 (Miscellaneous Provisions).

10. 10. Miscellaneous Provisions.

    1. 10.1 Severability; Waiver. If any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable, such provision will be modified so as best to accomplish the original intent of the Parties to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect. The waiver of any breach or default of this Agreement will not constitute a waiver of any subsequent breach or default, and will not act to amend or negate the rights of the waiving Party.
    2. 10.2 Marketing. Convictional may publicly identify Customer in any public announcement, press release, promotional, or other material and may use any names, URLs, domain names, trademarks, service marks, logos, slogans or other words or phrases identifying Customer (“Customer Identifiers”) on its website and in any promotional or other materials including a published case study without Customer’s express prior written consent (a “Marketing Use”).
    3. 10.3 Governing Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflicts of law principles. Any dispute arising out of this Agreement will be subject to the exclusive jurisdiction of the State and Federal Courts located in Kent County, Delaware, and each Party consents to the personal jurisdiction thereof and waives any right it may otherwise have to challenge the appropriateness of such forums.
    4. 10.4 Assignment. Neither Party will have the right to assign this Agreement, in whole or in part, or any of its rights or obligations under this Agreement, by operation of law or otherwise, without the prior written consent of the other Party.
    5. 10.5 Independent Contractors; Subcontractors. Convictional and Customer are independent contractors. This Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between Convictional and Customer. Neither Convictional nor Customer will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided herein. Convictional may utilize one or more subcontractors or other third parties to perform its duties under this Agreement so long as Convictional remains responsible for all of its obligations under this Agreement.
    6. 10.6 Modification. Convictional may amend any of the terms and conditions contained in this Agreement at any time and at its sole discretion. Any changes will be effective upon our posting a revised version of this Agreement or by notifying you. Customer’s continued use of the Services after Convictional’s communication of any changes will constitute Customer’s acceptance of such changes or modifications.
    7. 10.7 Entire Agreement. The terms and conditions of any exhibits, schedules and other documents referenced herein or therein are incorporated into the terms and conditions of this Agreement, and constitute the complete and exclusive agreement between the Parties with respect to the subject matter hereof, and supersede and replace any and all prior or contemporaneous discussions, negotiations, understandings and agreements, written and oral, regarding such subject matter. In the event of any conflict in the documents which constitute this Agreement, the order of precedence will be: (i) this Agreement; and (ii) any other schedules, exhibits and other documents referenced and incorporated herein and therein. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. To the extent any personnel of Customer accept the Convictional terms of service as part of their use of the Service, this Agreement will supersede any conflicting terms in the terms of service. If any material limitation or restriction on the use of the Service under this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the Service will immediately terminate. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.