‍2.1. Payment and Taxes.

2.1.1. Fees. “Fees” means the fees payable by Customer to Aquila for the applicable Services, as set forth on the Subscription Form. Customer is responsible for all Fees set forth in the Subscription Form. Aquila will invoice the Customer for such Fees using the billing information provided by the Customer from time to time. If Customer purchases a subscription to the Services using a credit card or similar online payment method, Aquila will bill that payment method for all Fees due, including renewals and add-on purchases, as applicable, unless another payment method is requested in writing by Customer. Customer shall pay all Fees in accordance with the payment terms set forth in the applicable Subscription Form. Except as expressly set forth in these Terms, all payment obligations are non-cancelable and Fees are non-refundable and not subject to set off. In the event of non-payment of Fees by Customer for fifteen (15) days after the due date of an invoice, Aquila reserves the right to (i) immediately suspend Customer’s access to the Services until Customer pays the entire remaining balance of Fees and/or (ii) charge interest on past due amounts at the lesser of one and a half percent (1.5%) or the highest interest rate allowed by law. Aquila will promptly restore Customer’s access to the Services once such non-payment is cured.

2.1.2. Taxes. Fees do not include taxes, levies, duties or similar governmental assessments of any nature, including, for example, any sales, use, GST, value-added, withholding, or similar taxes, whether domestic or foreign, or assessed by any jurisdiction (“Taxes”). Customer is responsible for paying all Taxes associated with its purchase of the Services, excluding Taxes based on Aquila’s net income or receipts, property or employees.

2.2. Price Changes; Discounts and Promotions. Prices specified in the Subscription Form may include discounts or promotional pricing. Aquila may change prices for the Services and/or discontinue or change any promotion, sale, or special offer in its sole discretion; provided that any such changes or discontinuations will only be effective upon the commencement of Customer’s next Subscription Period and will not impact the Fees payable for the then-current Subscription Period. Aquila will provide Customer with reasonable notice of any Fee increases prior to the expiration of the then-current Subscription Period. 

2.3. Disclaimers. NOTWITHSTANDING SECTIONS 7 (REPRESENTATIONS, WARRANTIES AND DISCLAIMERS) AND 8 (INDEMNIFICATION) BELOW, SERVICES AND OTHER OFFERINGS ARE PROVIDED “AS-IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY AND AQUILA SHALL HAVE NO SUPPORT OR INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES OR OTHER OFFERINGS UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE AQUILA’S LIABILITY WITH RESPECT TO THE SERVICES AND OTHER OFFERINGS SHALL NOT EXCEED ONE THOUSAND DOLLARS ($1,000.00). NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 9 (LIMITATION OF LIABILITY) BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THESE TERMS TO AQUILA AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SERVICES, ANY BREACH BY CUSTOMER OF THESE TERMS AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.

3.1. Term and Renewal.

3.1.1. Terms. These Terms commence on the Effective Date and will remain in effect until all Subscription Forms have expired or been terminated in accordance with this Section 3.

3.1.2. Subscription Form. The Subscription Period for each Subscription Form shall be set forth therein; provided that if the Subscription Form does not specify a Subscription Period, the Subscription Period will be twelve (12) months.

3.2. Termination for Cause. A Party may terminate these Terms or an Subscription Form for cause (a) upon written notice to the other Party of a material breach if such breach remains uncured after ten (10) days from the date of the breaching Party’s receipt of such notice; (b) 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 that is not dismissed within sixty (60) days of the commencement thereof; or (c) immediately by Aquila if Customer violates Section 4.5 (Prohibited Uses) of these Terms. Non-payment of Fees by Customer for thirty (30) days after the due date of an invoice and any violation of Section 4.6 (Prohibited Uses) will be considered material breaches of these Terms.

3.3. Effect of Termination and Survival. Termination of these Terms will concurrently terminate all active Subscription Forms. Upon termination of these Terms and/or an Subscription Form, (a) Customer will have no further right to use the Services under the terminated or canceled Subscription Form(s) and Aquila will remove Customer’s access to the same, and (b) unless otherwise specified herein, Customer will not be entitled to a refund of Fees paid; provided that if Customer terminates for Aquila’s uncured material breach in accordance with Section 3.2 (Termination for Cause), Customer shall be entitled to a pro-rata refund of any prepaid, unused Fees paid to Aquila. The following Sections will survive termination: Section 2 (Fees and Payment) for any Fees due and payable at the time of termination, Section 3.3 (Effect of Termination and Survival), Section 4 (Ownership, License, and Use of the Services), Section 5 (Confidentiality), Section 7.3 (Disclaimers), Section 8 (Indemnification), Section 9 (Limitation of Liability), and Section 10 (Miscellaneous). Termination of these Terms will not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of these Terms.

4.1. Ownership. Each Party will retain all rights, title and interest in any of its patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and proprietary rights (“Intellectual Property Rights”). Aquila will retain all Intellectual Property Rights in and to the Services and all components of, or used to provide, the Services and any other materials developed by Aquila in its performance hereunder that derive from, improve, enhance or modify the Services or other Aquila pre-existing intellectual property (collectively with the corresponding Intellectual Property Rights, “Services Information”). Customer will retain Intellectual Property Rights in all information uploaded to the Services by or on behalf Customer (other than Feedback as described below), including any outputs or results thereof produced by the Services from such information (excluding any Aquila intellectual property embedded therein) (collectively, “Customer Information”).

4.2. Feedback. Customer may, under these Terms, provide suggestions, enhancement requests, recommendations about the Services, or other feedback to Aquila (“Feedback”). Customer hereby grants Aquila a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services, or otherwise use any Feedback; provided that Aquila may not breach its obligations of confidentiality under Section 5 in doing so. Aquila also reserves the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by such Feedback and, as between the Parties, Aquila shall own all right, title and interest in and to such derivatives.

4.3. Licenses. Subject to Customer’s compliance with the terms and conditions of these Terms (including any limitations and restrictions set forth on an applicable Subscription Form), Aquila hereby grants Customer a non-exclusive, non-transferable, non-sublicensable limited right and license to access and use the Services, as applicable, solely during the applicable Subscription Period for Customer’s internal business purposes. Customer hereby grants Aquila a non-exclusive, non-transferable, non-sublicensable right and license to use Customer Information solely to provide the Services to Customer. Notwithstanding anything to the contrary, Aquila may generate, collect, use, and analyze usage data generated or derived from Customer’s use of the Services (“Usage Data”), including log data and metadata, to develop, improve, promote, support, and operate its products and services; provided that such Usage Data may only be shared with third parties in a manner that is aggregated and/or anonymized and does not identify Customer or any Authorized Users.

‍4.4. Authorized Users. Customer may designate and provide access to the Services to its authorized employees, agents, or contractors (each an “Authorized User”). Customer is responsible for all use and misuse of the Services by Authorized Users and for adherence to all terms of these Terms by any Authorized Users as though such Authorized Users were parties hereto, and references to Customer herein will be deemed to apply to Authorized Users as necessary and applicable. Customer agrees to promptly notify Aquila of any unauthorized access or use of which Customer becomes aware. Authorized Users are strictly prohibited from sharing their accounts or account passwords and their doing so is a material breach of these Terms by Customer.

4.5. Prohibited Uses. Customer will not, and will not permit any Authorized Users or third parties to, directly or indirectly: (a) “frame”, distribute, resell, or permit access to the Services by any third party other than as allowed by the features and functionality of the Services; (b) use the Services in violation of applicable laws, rule or regulations; (c) interfere with, disrupt, or gain unauthorized access to the Services; (d) successfully or otherwise, attempt to: decompile, disassemble, reverse engineer, discover the underlying source code or structure of, or copy the Services; (e) provide Aquila any Customer Information or Feedback that is unlawful, defamatory, harassing, discriminatory, or infringing of third party Intellectual Property Rights; (f) transfer to the Services or otherwise use on the Services any code, exploit, or undisclosed feature that is designed to delete, disable, deactivate, interfere with or otherwise harm or provide unauthorized access to the Services; (g) use any robot, spider, data scraping, or extraction tool or similar mechanism with respect to the Services; (h) provide access to the Services to an individual associated with a Aquila Competitor (as defined below); (i) extract information from the Services or otherwise access or use the Services in furtherance of replicating the Services or otherwise competing with Aquila; (j) encumber, sublicense, transfer, rent, lease, time-share or use the Services in any service bureau arrangement or otherwise for the benefit of any third party; (k) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Services; (l) introduce into the Services any software containing a virus, worm, “back door”, Trojan horse or similarly harmful code; (m) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; or (n) permit any third party to engage in any of the foregoing proscribed acts (each of (a) through (n), a “Prohibited Use” and, collectively, “Prohibited Uses”).

A “Aquila Competitor” is any entity that provides the same or similar goods and services to those provided by Aquila, as would be determined by a reasonable individual. Customer will promptly notify Aquila of any violations of the Prohibited Uses and take all necessary steps to prevent or cease any such use(s). Aquila reserves the right to suspend Customer and/or Authorized User’s access to the Services in the event Aquila reasonably suspects Customer or an Authorized User is in breach of this Section.

4.6. Artificial Intelligence.

‍4.6.1. AI Features. Customer acknowledges that the Services offer features that leverage the use of artificial intelligence, machine learning, or similar technologies provided by Aquila and/or its licensors (“AI Features”). Use of AI Features by Customer is voluntary and Aquila will inform Customer via the Services before an AI Feature is engaged for the first time for Customer’s use. Customer will have the ability to disable AI Features within the Services at the admin level for all Authorized Users by using the functionality of the Services. Aquila will not, and will not permit any third party to, use any Customer Information to train any artificial intelligence or machine learning models; provided that Aquila may use Feedback and Usage Data for the purpose of training and improving its AI Features.

4.6.2. Disclaimer. Aquila makes no covenants, representations or warranties regarding any outputs generated, transmitted or made available in connection with Customer’s or any Authorized User’s use of AI Features (“AI Outputs”), including, without limitation, with respect to the accuracy, quality or truthfulness thereof. AI Outputs should be used at Customer’s own risk. Due to the nature of AI Features generally, Customer acknowledges that it is possible that (a) Customer’s AI Outputs may be similar to outputs generated by other Aquila customers’ use of the Services, (b) the same input may result in different AI Outputs from one use to the next and (c) the AI Outputs may not be accurate, reliable or suitable for Customer’s requirements. Before leveraging any AI Outputs in any manner, Customer and its Authorized Users are responsible for making their own determination that the AI Outputs are suitable, and Customer is solely responsible for any reliance on the accuracy, completeness, or usefulness of any AI Outputs. Neither Customer nor any Authorized User may represent that any AI Outputs were human generated.

7.2. Limited Warranty. Aquila warrants that during an applicable Term the Services will perform materially in accordance with any applicable documentation provided to Customer. This warranty shall not extend to non-conformity with the documentation resulting from Customer’s use of the Services in violation of the Terms or not in accordance with such documentation. For any breach of a warranty in this section, Customer’s exclusive remedies are those described in Section 3.2 (Termination for Cause).

‍7.3. Disclaimers. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION, THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS, AI OUTPUTS, SERVICES INFORMATION AND ANY OTHER INFORMATION OR ADVICE OBTAINED BY CUSTOMER THROUGH THE SERVICES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND AQUILA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE PARTIES ADDITIONALLY AGREE THAT AQUILA WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR CUSTOMER’S VARIOUS COMPLIANCE PROGRAMS, AND THAT THE SERVICES, TO THE EXTENT APPLICABLE, ARE ONLY TOOLS FOR ASSISTING CUSTOMER IN MEETING THE VARIOUS COMPLIANCE OBLIGATIONS FOR WHICH IT SOLELY IS RESPONSIBLE.

8.1. Indemnification by Aquila. Aquila will indemnify and hold Customer harmless from any Losses (defined below) arising out of an unaffiliated third party’s claim (“Claim”) that the Services infringe or misappropriate such third party’s Intellectual Property Rights. Aquila will, at its sole expense, defend such claim and pay liabilities and expenses awarded to such unaffiliated third party by a court of competent jurisdiction or agreed to in a settlement (collectively, “Losses”) in connection with such Claim. If use of a Service by Customer has become, or, in Aquila’s opinion, is likely to become, the subject of any such Claim, Aquila may, at its option and expense, (i) procure for Customer the right to continue using the Service(s) as set forth hereunder; (ii) replace or modify a Service to make it non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by Aquila, terminate these Terms and repay, on a pro-rata basis, any Fees previously paid to Aquila for the corresponding unused portion of the then-current Subscription Period for related Services. Aquila will have no liability or obligation under this Section with respect to any claim if such claim is caused in whole or in part by (a) any use of the Services in non-conformity with the documentation or in violation of these Terms; (b) modification of the Services by anyone other than Aquila; or (c) the combination, operation or use of the Services with other hardware or software where the Services would not otherwise be infringing. The provisions of this Section state the sole, exclusive, and entire liability of Aquila to Customer and constitute Customer’s sole remedy with respect to an infringement claim brought by reason of access to or use of a Service by Customer or Authorized Users.

8.2. Indemnification by Customer. Customer will indemnify and hold Aquila harmless from any Losses arising out of a Claim related to Customer Information. Customer will, at its sole expense, defend Aquila against such Claim and pay any Losses in connection therewith.

8.3. Indemnification Conditions and Procedures. The obligations of the indemnifying Party in this Section 8 are conditioned upon the indemnified Party (i) promptly notifying the indemnifying Party of the threat or notice of such claim (provided that a failure to provide such notice shall only relieve the indemnifying party of its indemnity obligations if the indemnifying party is materially prejudiced by such failure); (ii) giving the indemnifying Party sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, the indemnifying Party may not settle or compromise any claim that results in liability or admission of any liability by the indemnified Party without prior written consent provided that such consent shall not be unreasonably conditioned, withheld or delayed); and (iii) cooperating with the indemnifying Party, at the indemnifying Party’s expense, in connection with the defense and/or settlement in connection therewith.

9.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATE FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA (I.E., DATA LOST IN THE COURSE OF TRANSMISSION VIA CUSTOMER’S SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF AQUILA), BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.

9.2. NEITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF THESE TERMS WILL EXCEED THE AGGREGATE FEES PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH CLAIM; PROVIDED THAT LIABILITY (I) FOR BREACHES OF A PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 5, (II) FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, OR (III) DUE TO PROHIBITED USES WILL NOT IN THE AGGREGATE EXCEED TEN TIMES (10X) THAT AMOUNT.

9.3. NOTWITHSTANDING SECTIONS 9.1 AND 9.2, NOTHING IN THESE TERMS WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE, FRAUD, INTENTIONAL MISCONDUCT OR ANY OTHER MATTER FOR WHICH LIABILITY CANNOT BE EXCLUDED BY LAW.

9.4. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 9 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF AQUILA WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. AQUILA HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CUSTOMER WITH THE RIGHTS TO ACCESS AND USE THE SERVICES PROVIDED FOR IN THESE TERMS.

10.1. Entire Agreement; Order of Precedence. These Terms and any active Subscription Forms constitute the entire agreement, and supersedes all prior agreements, between Aquila and Customer regarding the subject matter hereof. In the event of any inconsistency or conflict between these Terms and the terms of any Subscription Form, the terms of the Subscription Form shall prevail. ‍

10.2. Assignment. Neither Party may, assign these Terms without the prior written consent of the other Party, except that either Party may, without the need for such consent, assign these Terms to any affiliate or in connection with any merger, change of control, or the sale of all or substantially all of such Party’s assets; provided that (1) the other Party is provided notice of such assignment and (2) any such successor agrees to fulfill its obligations pursuant to these Terms. Subject to the foregoing restrictions, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.

10.3. Severability. If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms will remain in effect.

10.4. Relationship of the Parties; Third-Party Beneficiaries. The Parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. There are no third-party beneficiaries under these Terms, except to the extent expressly stated herein.

10.5. Notices. All notices provided by Aquila to Customer under these Terms may be delivered in writing (a) by nationally recognized overnight delivery service (“Courier”); or (b) electronic mail to the electronic mail address provided for Customer’s account owner. All notices shall be deemed to have been given immediately upon delivery by electronic mail; or, if otherwise delivered upon the earlier of receipt or two (2) business days after being deposited in the mail or with a Courier as permitted above.

‍10.6. Governing Law, Jurisdiction, Venue. These Terms will be governed by the laws of Singapore, without reference to conflict of laws principles. Any disputes under these Terms shall be resolved by the Singapore International Arbitration Center (SIAC).

10.7. Publicity and Marketing. Aquila may use Customer’s name, logo, and trademarks to identify Customer as a client of Aquila on Aquila’s website and other marketing materials.

10.8. Third Party Products and Services.

10.8.1. Third Party Products. Customer may enable integrations between the Services and third-party products, applications, and services (collectively, “Third Party Products”). Customer’s use of such Third Party Products will be subject to the privacy policies and terms and conditions of such third party providers. Customer acknowledges and agrees that Aquila makes no representations, warranties or covenants regarding such Third Party Products. Customer hereby waives any claim against Aquila with respect to Customer’s enablement of, access to or use of such Third Party Products in connection with the Services.

10.8.2. Third Party Services. If an Subscription Form contemplates Customer obtaining third party certifications or testing services (e.g., an audit or penetration testing services) (collectively, “Third Party Services”), Customer acknowledges and agrees that such Third Party Services will be performed by an independent third party and not by Aquila. Customer may be required to enter into an engagement letter or separate agreement with such third party in connection with such Third Party Services prior to the provision thereof which shall govern Customer’s receipt of such Third Party Services. Aquila will not be a party to such engagement letter or separate agreement and bears no responsibility for the quality, accuracy, or completeness of the Third Party Services. Customer acknowledges and agrees that Aquila makes no representations, warranties or covenants with respect to such Third Party Services.

10.9. Force Majeure. Except with respect to Customer’s payment obligations, neither Party will be liable for, or considered in breach or default under these Terms or any Subscription Form as a result of any cause or condition beyond such Party’s reasonable control.

‍10.10. Waiver. Neither Party’s failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of these Terms.

11. Contact

‍2.1. Payment and Taxes.

2.1.1. Fees. “Fees” means the fees payable by Customer to Aquila for the applicable Services, as set forth on the Subscription Form. Customer is responsible for all Fees set forth in the Subscription Form. Aquila will invoice the Customer for such Fees using the billing information provided by the Customer from time to time. If Customer purchases a subscription to the Services using a credit card or similar online payment method, Aquila will bill that payment method for all Fees due, including renewals and add-on purchases, as applicable, unless another payment method is requested in writing by Customer. Customer shall pay all Fees in accordance with the payment terms set forth in the applicable Subscription Form. Except as expressly set forth in these Terms, all payment obligations are non-cancelable and Fees are non-refundable and not subject to set off. In the event of non-payment of Fees by Customer for fifteen (15) days after the due date of an invoice, Aquila reserves the right to (i) immediately suspend Customer’s access to the Services until Customer pays the entire remaining balance of Fees and/or (ii) charge interest on past due amounts at the lesser of one and a half percent (1.5%) or the highest interest rate allowed by law. Aquila will promptly restore Customer’s access to the Services once such non-payment is cured.

2.1.2. Taxes. Fees do not include taxes, levies, duties or similar governmental assessments of any nature, including, for example, any sales, use, GST, value-added, withholding, or similar taxes, whether domestic or foreign, or assessed by any jurisdiction (“Taxes”). Customer is responsible for paying all Taxes associated with its purchase of the Services, excluding Taxes based on Aquila’s net income or receipts, property or employees.

2.2. Price Changes; Discounts and Promotions. Prices specified in the Subscription Form may include discounts or promotional pricing. Aquila may change prices for the Services and/or discontinue or change any promotion, sale, or special offer in its sole discretion; provided that any such changes or discontinuations will only be effective upon the commencement of Customer’s next Subscription Period and will not impact the Fees payable for the then-current Subscription Period. Aquila will provide Customer with reasonable notice of any Fee increases prior to the expiration of the then-current Subscription Period. 

2.3. Disclaimers. NOTWITHSTANDING SECTIONS 7 (REPRESENTATIONS, WARRANTIES AND DISCLAIMERS) AND 8 (INDEMNIFICATION) BELOW, SERVICES AND OTHER OFFERINGS ARE PROVIDED “AS-IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY AND AQUILA SHALL HAVE NO SUPPORT OR INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES OR OTHER OFFERINGS UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW, IN WHICH CASE AQUILA’S LIABILITY WITH RESPECT TO THE SERVICES AND OTHER OFFERINGS SHALL NOT EXCEED ONE THOUSAND DOLLARS ($1,000.00). NOTWITHSTANDING ANYTHING TO THE CONTRARY IN SECTION 9 (LIMITATION OF LIABILITY) BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THESE TERMS TO AQUILA AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SERVICES, ANY BREACH BY CUSTOMER OF THESE TERMS AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.

3.1. Term and Renewal.

3.1.1. Terms. These Terms commence on the Effective Date and will remain in effect until all Subscription Forms have expired or been terminated in accordance with this Section 3.

3.1.2. Subscription Form. The Subscription Period for each Subscription Form shall be set forth therein; provided that if the Subscription Form does not specify a Subscription Period, the Subscription Period will be twelve (12) months.

3.2. Termination for Cause. A Party may terminate these Terms or an Subscription Form for cause (a) upon written notice to the other Party of a material breach if such breach remains uncured after ten (10) days from the date of the breaching Party’s receipt of such notice; (b) 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 that is not dismissed within sixty (60) days of the commencement thereof; or (c) immediately by Aquila if Customer violates Section 4.5 (Prohibited Uses) of these Terms. Non-payment of Fees by Customer for thirty (30) days after the due date of an invoice and any violation of Section 4.6 (Prohibited Uses) will be considered material breaches of these Terms.

3.3. Effect of Termination and Survival. Termination of these Terms will concurrently terminate all active Subscription Forms. Upon termination of these Terms and/or an Subscription Form, (a) Customer will have no further right to use the Services under the terminated or canceled Subscription Form(s) and Aquila will remove Customer’s access to the same, and (b) unless otherwise specified herein, Customer will not be entitled to a refund of Fees paid; provided that if Customer terminates for Aquila’s uncured material breach in accordance with Section 3.2 (Termination for Cause), Customer shall be entitled to a pro-rata refund of any prepaid, unused Fees paid to Aquila. The following Sections will survive termination: Section 2 (Fees and Payment) for any Fees due and payable at the time of termination, Section 3.3 (Effect of Termination and Survival), Section 4 (Ownership, License, and Use of the Services), Section 5 (Confidentiality), Section 7.3 (Disclaimers), Section 8 (Indemnification), Section 9 (Limitation of Liability), and Section 10 (Miscellaneous). Termination of these Terms will not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of these Terms.

4.1. Ownership. Each Party will retain all rights, title and interest in any of its patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and proprietary rights (“Intellectual Property Rights”). Aquila will retain all Intellectual Property Rights in and to the Services and all components of, or used to provide, the Services and any other materials developed by Aquila in its performance hereunder that derive from, improve, enhance or modify the Services or other Aquila pre-existing intellectual property (collectively with the corresponding Intellectual Property Rights, “Services Information”). Customer will retain Intellectual Property Rights in all information uploaded to the Services by or on behalf Customer (other than Feedback as described below), including any outputs or results thereof produced by the Services from such information (excluding any Aquila intellectual property embedded therein) (collectively, “Customer Information”).

4.2. Feedback. Customer may, under these Terms, provide suggestions, enhancement requests, recommendations about the Services, or other feedback to Aquila (“Feedback”). Customer hereby grants Aquila a fully paid-up, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, incorporate into the Services, or otherwise use any Feedback; provided that Aquila may not breach its obligations of confidentiality under Section 5 in doing so. Aquila also reserves the right to seek intellectual property protection for any features, functionality or components that may be based on or that were initiated by such Feedback and, as between the Parties, Aquila shall own all right, title and interest in and to such derivatives.

4.3. Licenses. Subject to Customer’s compliance with the terms and conditions of these Terms (including any limitations and restrictions set forth on an applicable Subscription Form), Aquila hereby grants Customer a non-exclusive, non-transferable, non-sublicensable limited right and license to access and use the Services, as applicable, solely during the applicable Subscription Period for Customer’s internal business purposes. Customer hereby grants Aquila a non-exclusive, non-transferable, non-sublicensable right and license to use Customer Information solely to provide the Services to Customer. Notwithstanding anything to the contrary, Aquila may generate, collect, use, and analyze usage data generated or derived from Customer’s use of the Services (“Usage Data”), including log data and metadata, to develop, improve, promote, support, and operate its products and services; provided that such Usage Data may only be shared with third parties in a manner that is aggregated and/or anonymized and does not identify Customer or any Authorized Users.

‍4.4. Authorized Users. Customer may designate and provide access to the Services to its authorized employees, agents, or contractors (each an “Authorized User”). Customer is responsible for all use and misuse of the Services by Authorized Users and for adherence to all terms of these Terms by any Authorized Users as though such Authorized Users were parties hereto, and references to Customer herein will be deemed to apply to Authorized Users as necessary and applicable. Customer agrees to promptly notify Aquila of any unauthorized access or use of which Customer becomes aware. Authorized Users are strictly prohibited from sharing their accounts or account passwords and their doing so is a material breach of these Terms by Customer.

4.5. Prohibited Uses. Customer will not, and will not permit any Authorized Users or third parties to, directly or indirectly: (a) “frame”, distribute, resell, or permit access to the Services by any third party other than as allowed by the features and functionality of the Services; (b) use the Services in violation of applicable laws, rule or regulations; (c) interfere with, disrupt, or gain unauthorized access to the Services; (d) successfully or otherwise, attempt to: decompile, disassemble, reverse engineer, discover the underlying source code or structure of, or copy the Services; (e) provide Aquila any Customer Information or Feedback that is unlawful, defamatory, harassing, discriminatory, or infringing of third party Intellectual Property Rights; (f) transfer to the Services or otherwise use on the Services any code, exploit, or undisclosed feature that is designed to delete, disable, deactivate, interfere with or otherwise harm or provide unauthorized access to the Services; (g) use any robot, spider, data scraping, or extraction tool or similar mechanism with respect to the Services; (h) provide access to the Services to an individual associated with a Aquila Competitor (as defined below); (i) extract information from the Services or otherwise access or use the Services in furtherance of replicating the Services or otherwise competing with Aquila; (j) encumber, sublicense, transfer, rent, lease, time-share or use the Services in any service bureau arrangement or otherwise for the benefit of any third party; (k) copy, distribute, manufacture, adapt, create derivative works of, translate, localize, port or otherwise modify any aspect of the Services; (l) introduce into the Services any software containing a virus, worm, “back door”, Trojan horse or similarly harmful code; (m) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; or (n) permit any third party to engage in any of the foregoing proscribed acts (each of (a) through (n), a “Prohibited Use” and, collectively, “Prohibited Uses”).

A “Aquila Competitor” is any entity that provides the same or similar goods and services to those provided by Aquila, as would be determined by a reasonable individual. Customer will promptly notify Aquila of any violations of the Prohibited Uses and take all necessary steps to prevent or cease any such use(s). Aquila reserves the right to suspend Customer and/or Authorized User’s access to the Services in the event Aquila reasonably suspects Customer or an Authorized User is in breach of this Section.

4.6. Artificial Intelligence.

‍4.6.1. AI Features. Customer acknowledges that the Services offer features that leverage the use of artificial intelligence, machine learning, or similar technologies provided by Aquila and/or its licensors (“AI Features”). Use of AI Features by Customer is voluntary and Aquila will inform Customer via the Services before an AI Feature is engaged for the first time for Customer’s use. Customer will have the ability to disable AI Features within the Services at the admin level for all Authorized Users by using the functionality of the Services. Aquila will not, and will not permit any third party to, use any Customer Information to train any artificial intelligence or machine learning models; provided that Aquila may use Feedback and Usage Data for the purpose of training and improving its AI Features.

4.6.2. Disclaimer. Aquila makes no covenants, representations or warranties regarding any outputs generated, transmitted or made available in connection with Customer’s or any Authorized User’s use of AI Features (“AI Outputs”), including, without limitation, with respect to the accuracy, quality or truthfulness thereof. AI Outputs should be used at Customer’s own risk. Due to the nature of AI Features generally, Customer acknowledges that it is possible that (a) Customer’s AI Outputs may be similar to outputs generated by other Aquila customers’ use of the Services, (b) the same input may result in different AI Outputs from one use to the next and (c) the AI Outputs may not be accurate, reliable or suitable for Customer’s requirements. Before leveraging any AI Outputs in any manner, Customer and its Authorized Users are responsible for making their own determination that the AI Outputs are suitable, and Customer is solely responsible for any reliance on the accuracy, completeness, or usefulness of any AI Outputs. Neither Customer nor any Authorized User may represent that any AI Outputs were human generated.

7.2. Limited Warranty. Aquila warrants that during an applicable Term the Services will perform materially in accordance with any applicable documentation provided to Customer. This warranty shall not extend to non-conformity with the documentation resulting from Customer’s use of the Services in violation of the Terms or not in accordance with such documentation. For any breach of a warranty in this section, Customer’s exclusive remedies are those described in Section 3.2 (Termination for Cause).

‍7.3. Disclaimers. EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION, THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS, AI OUTPUTS, SERVICES INFORMATION AND ANY OTHER INFORMATION OR ADVICE OBTAINED BY CUSTOMER THROUGH THE SERVICES, ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND AQUILA EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. THE PARTIES ADDITIONALLY AGREE THAT AQUILA WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR CUSTOMER’S VARIOUS COMPLIANCE PROGRAMS, AND THAT THE SERVICES, TO THE EXTENT APPLICABLE, ARE ONLY TOOLS FOR ASSISTING CUSTOMER IN MEETING THE VARIOUS COMPLIANCE OBLIGATIONS FOR WHICH IT SOLELY IS RESPONSIBLE.

8.1. Indemnification by Aquila. Aquila will indemnify and hold Customer harmless from any Losses (defined below) arising out of an unaffiliated third party’s claim (“Claim”) that the Services infringe or misappropriate such third party’s Intellectual Property Rights. Aquila will, at its sole expense, defend such claim and pay liabilities and expenses awarded to such unaffiliated third party by a court of competent jurisdiction or agreed to in a settlement (collectively, “Losses”) in connection with such Claim. If use of a Service by Customer has become, or, in Aquila’s opinion, is likely to become, the subject of any such Claim, Aquila may, at its option and expense, (i) procure for Customer the right to continue using the Service(s) as set forth hereunder; (ii) replace or modify a Service to make it non-infringing; or (iii) if options (i) or (ii) are not commercially reasonable or practicable as determined by Aquila, terminate these Terms and repay, on a pro-rata basis, any Fees previously paid to Aquila for the corresponding unused portion of the then-current Subscription Period for related Services. Aquila will have no liability or obligation under this Section with respect to any claim if such claim is caused in whole or in part by (a) any use of the Services in non-conformity with the documentation or in violation of these Terms; (b) modification of the Services by anyone other than Aquila; or (c) the combination, operation or use of the Services with other hardware or software where the Services would not otherwise be infringing. The provisions of this Section state the sole, exclusive, and entire liability of Aquila to Customer and constitute Customer’s sole remedy with respect to an infringement claim brought by reason of access to or use of a Service by Customer or Authorized Users.

8.2. Indemnification by Customer. Customer will indemnify and hold Aquila harmless from any Losses arising out of a Claim related to Customer Information. Customer will, at its sole expense, defend Aquila against such Claim and pay any Losses in connection therewith.

8.3. Indemnification Conditions and Procedures. The obligations of the indemnifying Party in this Section 8 are conditioned upon the indemnified Party (i) promptly notifying the indemnifying Party of the threat or notice of such claim (provided that a failure to provide such notice shall only relieve the indemnifying party of its indemnity obligations if the indemnifying party is materially prejudiced by such failure); (ii) giving the indemnifying Party sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, the indemnifying Party may not settle or compromise any claim that results in liability or admission of any liability by the indemnified Party without prior written consent provided that such consent shall not be unreasonably conditioned, withheld or delayed); and (iii) cooperating with the indemnifying Party, at the indemnifying Party’s expense, in connection with the defense and/or settlement in connection therewith.

9.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY OR ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SERVICE PROVIDERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATE FOR ANY LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA (I.E., DATA LOST IN THE COURSE OF TRANSMISSION VIA CUSTOMER’S SYSTEMS OR OVER THE INTERNET THROUGH NO FAULT OF AQUILA), BUSINESS INTERRUPTION, LOSS OF GOODWILL, COSTS OF COVER OR REPLACEMENT, OR FOR ANY TYPE OF INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGES, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.

9.2. NEITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF THESE TERMS WILL EXCEED THE AGGREGATE FEES PAID BY CUSTOMER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH CLAIM; PROVIDED THAT LIABILITY (I) FOR BREACHES OF A PARTY’S CONFIDENTIALITY OBLIGATIONS UNDER SECTION 5, (II) FOR THE PARTIES’ INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, OR (III) DUE TO PROHIBITED USES WILL NOT IN THE AGGREGATE EXCEED TEN TIMES (10X) THAT AMOUNT.

9.3. NOTWITHSTANDING SECTIONS 9.1 AND 9.2, NOTHING IN THESE TERMS WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE, FRAUD, INTENTIONAL MISCONDUCT OR ANY OTHER MATTER FOR WHICH LIABILITY CANNOT BE EXCLUDED BY LAW.

9.4. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 9 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF AQUILA WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. AQUILA HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CUSTOMER WITH THE RIGHTS TO ACCESS AND USE THE SERVICES PROVIDED FOR IN THESE TERMS.

10.1. Entire Agreement; Order of Precedence. These Terms and any active Subscription Forms constitute the entire agreement, and supersedes all prior agreements, between Aquila and Customer regarding the subject matter hereof. In the event of any inconsistency or conflict between these Terms and the terms of any Subscription Form, the terms of the Subscription Form shall prevail. ‍

10.2. Assignment. Neither Party may, assign these Terms without the prior written consent of the other Party, except that either Party may, without the need for such consent, assign these Terms to any affiliate or in connection with any merger, change of control, or the sale of all or substantially all of such Party’s assets; provided that (1) the other Party is provided notice of such assignment and (2) any such successor agrees to fulfill its obligations pursuant to these Terms. Subject to the foregoing restrictions, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the Parties and their respective successors and assigns.

10.3. Severability. If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision will be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms will remain in effect.

10.4. Relationship of the Parties; Third-Party Beneficiaries. The Parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. There are no third-party beneficiaries under these Terms, except to the extent expressly stated herein.

10.5. Notices. All notices provided by Aquila to Customer under these Terms may be delivered in writing (a) by nationally recognized overnight delivery service (“Courier”); or (b) electronic mail to the electronic mail address provided for Customer’s account owner. All notices shall be deemed to have been given immediately upon delivery by electronic mail; or, if otherwise delivered upon the earlier of receipt or two (2) business days after being deposited in the mail or with a Courier as permitted above.

‍10.6. Governing Law, Jurisdiction, Venue. These Terms will be governed by the laws of Singapore, without reference to conflict of laws principles. Any disputes under these Terms shall be resolved by the Singapore International Arbitration Center (SIAC).

10.7. Publicity and Marketing. Aquila may use Customer’s name, logo, and trademarks to identify Customer as a client of Aquila on Aquila’s website and other marketing materials.

10.8. Third Party Products and Services.

10.8.1. Third Party Products. Customer may enable integrations between the Services and third-party products, applications, and services (collectively, “Third Party Products”). Customer’s use of such Third Party Products will be subject to the privacy policies and terms and conditions of such third party providers. Customer acknowledges and agrees that Aquila makes no representations, warranties or covenants regarding such Third Party Products. Customer hereby waives any claim against Aquila with respect to Customer’s enablement of, access to or use of such Third Party Products in connection with the Services.

10.8.2. Third Party Services. If an Subscription Form contemplates Customer obtaining third party certifications or testing services (e.g., an audit or penetration testing services) (collectively, “Third Party Services”), Customer acknowledges and agrees that such Third Party Services will be performed by an independent third party and not by Aquila. Customer may be required to enter into an engagement letter or separate agreement with such third party in connection with such Third Party Services prior to the provision thereof which shall govern Customer’s receipt of such Third Party Services. Aquila will not be a party to such engagement letter or separate agreement and bears no responsibility for the quality, accuracy, or completeness of the Third Party Services. Customer acknowledges and agrees that Aquila makes no representations, warranties or covenants with respect to such Third Party Services.

10.9. Force Majeure. Except with respect to Customer’s payment obligations, neither Party will be liable for, or considered in breach or default under these Terms or any Subscription Form as a result of any cause or condition beyond such Party’s reasonable control.

‍10.10. Waiver. Neither Party’s failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of these Terms.

11. Contact