This Subscription Agreement (the “Agreement”) sets forth the terms and conditions under which Hark Technologies, Inc. (“Hark”) agrees to provide, and the customer identified in the applicable Order (“Customer”) agrees to obtain, access to Hark’s proprietary voice-of-customer and listening infrastructure platform, which enables Customer to collect, process, analyze, and act on multimedia consumer feedback (including video, audio, and text) and related signals (the “Service”).

1. Construction

Capitalized terms (whether in the singular or plural) shall have the meanings assigned in the text of this Agreement, including the initial order set forth in Exhibit A, and any subsequent order agreed to by the parties (each, an “Order”).

2. Software as a Service

2.1  Access

Commencing on the Effective Date of this Agreement, Hark shall make available to Customer the Service, as set forth in the applicable Order, hosted by Hark for use by Customer within the use limitations set forth in the Order.

2.2  Rights to the Service

Subject to the terms and conditions of this Agreement, Hark hereby grants Customer a non-exclusive, non-transferable, worldwide right during the Term to access the Service and permit the number of individual users specified in the Order to use the Service solely for Customer’s internal purposes up to the limits set forth in the applicable Order (“Authorized Users”). The Service is metered based on units of consent-based feedback capture (each, a “Hark”), with specific volumes, allowances, and pricing set forth in the applicable Order.

2.3  Updates

At no charge to Customer, Hark shall install on its servers any software updates deemed reasonably necessary to address errors, bugs or other performance issues in the Service (collectively, “Updates”). Updates (if any) shall be subject to the same terms and conditions of this Agreement.

2.4  Restrictions and Conditions

Customer shall not, directly, indirectly or through its Authorized Users, employees and/or the services of independent contractors: (a) attempt to sell, transfer, assign, rent, lend, lease, sublicense or otherwise provide third parties rights to the Service; (b) “frame,” “mirror,” copy or otherwise enable third parties to use the Service (or any component thereof) as a service bureau or other outsourced service; (c) allow access to the Service by multiple individuals impersonating a single end user; (d) use the Service in a manner that interferes with, degrades, or disrupts the integrity or performance of any Hark technologies, services, systems or other offerings, including data transmission, storage and backup; (e) use the Service for the purpose of developing a product or service that competes with Hark’s products and services; (f) circumvent or disable any security features or functionality associated with the Service; (g) use the Service in any manner prohibited by law; (h) use the Service, its outputs, or any data derived from the Service to train, develop, fine-tune, or otherwise improve any artificial intelligence or machine learning model or any other product or service that competes with Hark; (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the underlying source code, model architecture, prompts, system instructions, weights, embeddings, or training methodology of the Service or its outputs; (j) scrape, harvest, or perform automated extraction of data from the Service, or perform bulk export of data, in each case beyond the rate limits, query volumes, or export functionality made available through the Service’s user interface or documented APIs; or (k) conduct, publish, or disclose any benchmarking, performance testing, or competitive analysis of the Service to any third party without Hark’s prior written consent. All rights not expressly granted to Customer are reserved by Hark, its suppliers and licensors.

2.5  Consumer Content and Data Use

2.5.1  Ownership of Consumer Content. As between Customer and Hark, Customer retains all right, title, and interest in all data and content that Customer or its consumers provide through the Service, including videos, images, text, and other media (“Consumer Content”). If this Section 2.5 conflicts with Section 3.2 as to Consumer Content, this Section 2.5 controls.

2.5.2  Customer’s Right to Use Consumer Content. Customer may use Consumer Content for any lawful purpose consistent with applicable law, including for Customer’s internal support, quality control, and marketing communications. Hark does not restrict Customer’s use of Consumer Content that Customer owns, and nothing in this Agreement limits Customer’s ability to use Consumer Content in accordance with Customer’s own consumer-facing terms and applicable law. For the avoidance of doubt, Customer’s rights under this Section 2.5.2 are independent of and do not modify Hark’s rights and obligations under this Agreement, the Hark Privacy Notice, and the Hark Data Processing Addendum.

2.5.3  License to Hark. Customer grants Hark a non-exclusive, worldwide license to access, use, process, store, transmit, and display Consumer Content to provide, maintain, and support the Service, in accordance with this Agreement, the Hark Privacy Notice, and the Hark Data Processing Addendum.

2.5.4  De-Identified and Aggregated Data. Hark may compile, aggregate, and de-identify Consumer Content and other data arising from use of the Service to create data that: (a) does not, and cannot reasonably be used to, identify Customer, any consumer, or any natural person; and (b) does not include Customer’s Confidential Information (“De-Identified Data”). Hark owns all right, title, and interest in De-Identified Data and may use it for any lawful purpose, including: (i) product and service improvement, research, analytics, and benchmarking; (ii) training, improving, and developing machine learning models, artificial intelligence features, and algorithms; (iii) generating industry insights, reports, and publications; and (iv) developing new products, services, and features.

2.5.5  Restrictions on Identifiable Consumer Content. Hark shall not use Consumer Content in identifiable form for any purpose other than providing, maintaining, and supporting the Service as set forth in Section 2.5.3. Any use of Consumer Content for the purposes set forth in Section 2.5.4 is limited to De-Identified Data.

2.5.6  Governing Terms. Hark’s collection, processing, and use of Consumer Content (including any Personal Data) is governed by the Hark Privacy Notice and the Hark Data Processing Addendum, each of which is incorporated into this Agreement by reference and available at https://www.sendhark.com/privacy and https://www.sendhark.com/legal/data-processing-addendum, respectively. If there is a conflict between this Section 2.5 and those documents, the more protective provision as to Consumer Content controls.

3. Confidentiality

3.1  Confidentiality

Each party agrees that, without the express consent of the other party, none of its employees or agents will disclose to any third party any information or material that the other party designates as confidential (including without limitation the terms and conditions of this Agreement) unless such information or material (a) is or becomes publicly known through no wrongful act of the receiving party, (b) is received from a third party without restriction and without breach of any confidentiality obligation to the other party, (c) is independently developed by the receiving party, or (d) is required by law to be disclosed (provided that the other party is given advance notice of, and an opportunity to, contest any such requirement).

3.2  Customer Content

As between the parties, Customer owns all right, title, and interest in all content and data submitted by Customer or its Authorized Users to the Service (“Customer Content”), and in all Consumer Content (as defined in Section 2.5.1), in each case subject to the rights granted to Hark under this Agreement. Customer is solely responsible for the legality, reliability, accuracy, and quality of Customer Content and for ensuring that all Consumer Content is collected, submitted, and used in compliance with applicable law and this Agreement.

Customer grants Hark a non-exclusive, royalty-free, worldwide license to use, copy, store, modify, distribute, transfer, and display Customer Content solely to provide, maintain, and support the Service, and as otherwise expressly permitted under this Agreement (including Section 2.5), the Hark Privacy Notice, and the Hark Data Processing Addendum. For the avoidance of doubt, Hark’s rights in Consumer Content (as defined in Section 2.5.1) are limited to those set forth in Section 2.5 and those documents.

Notwithstanding the foregoing, and subject to Section 2.5, Hark may create and use De-Identified Data from Customer Content and Consumer Content as permitted under Section 2.5.4.

If requested by Customer within thirty (30) days after expiration or termination of this Agreement, Hark shall make available to Customer all Customer Content then stored in the Service, in a commercially reasonable format. Thirty (30) days after termination, Hark shall have no further obligation to retain Customer Content and may permanently delete or destroy the Service and all information contained in it, in each case subject to the Hark Data Processing Addendum and without limiting Hark’s rights to retain and use De-Identified Data under Section 2.5.4.

4. Services

Additional support services, including custom configuration, consulting, training and system integration, may be separately purchased from Hark under the terms of an addendum to this Agreement. For clarity, Hark has no obligation to support Customer’s own technology, internal infrastructure, provide free training, or provide consulting on customer-created content or third-party technologies and services unless agreed to in writing via an approved sales agreement and/or statement of work.

5. Service Availability and Security

5.1  Service Availability

Hark will use commercially reasonable efforts to maintain availability of the Service, excluding scheduled maintenance, emergency maintenance, and any unavailability caused by events outside of Hark’s reasonable control. Any specific service level commitments shall be set forth in the applicable Order or a separate service level addendum mutually agreed by the parties.

5.2  Security

Hark maintains commercially reasonable administrative, technical, and physical safeguards designed to protect Customer Content and Consumer Content against unauthorized access, use, disclosure, alteration, or destruction, consistent with industry standards. Additional security and data protection commitments are set forth in the Hark Data Processing Addendum.

5.3  Subprocessors

Hark may engage subprocessors to provide the Service. Hark’s use of subprocessors, including notice of new subprocessors and Customer’s right to object, is governed by the Hark Data Processing Addendum.

6. Customer Obligations

6.1  Fees and Payment Terms

In consideration of the rights granted herein, Customer shall pay Hark the amounts specified in the applicable Order (“Fees”). The initial Order is attached as Exhibit A and is incorporated herein by reference.

(a) Fees are exclusive of any applicable sales, use, import or export taxes, duties, fees, value-added taxes, tariffs or other amounts attributable to Customer’s execution of this Agreement or use of the Service (collectively, “Sales Taxes”). Customer shall be solely responsible for the payment of any Sales Taxes. In the event Hark is required to pay Sales Taxes on Customer’s behalf, Customer shall promptly reimburse Hark for all amounts paid.

(b) All amounts shall be paid to Hark within thirty (30) days of receipt of an undisputed invoice. An invoice shall be deemed undisputed if, within such thirty (30) day period, Customer fails to notify Hark in writing of any disputed amounts.

(c) Fees not paid when due shall be subject to a late fee equal to one and one half percent (1.5%) of the unpaid balance per month or the highest monthly rate permitted by applicable law. Hark further reserves (among other rights and remedies) the right to suspend access to the Service. Amounts payable to Hark shall continue to accrue during any period of suspension and must be paid as a condition precedent to reactivation, which reactivation is at the sole discretion of Hark.

(d) All prices and other payment terms are confidential information of Hark and Customer agrees not to disclose such information to any third party throughout the Term and for three (3) years thereafter.

(e) Except as otherwise specified in this Agreement, fees are based on services purchased and not actual usage; payment obligations are non-cancelable; fees paid are non-refundable; and the scope of the subscription cannot be decreased during the relevant subscription term.

6.2  Compliance with Laws

The Hark software and Service are of U.S. origin. Customer shall adhere to all applicable state, federal, local and international laws and treaties in all jurisdictions in which Customer uses the Service, including all end-user, end-use and destination restrictions issued by U.S. and other governments and the U.S. Export Administration Act and its associated regulations. Customer will not upload any data or information to the Service for which Customer does not have full and unrestricted rights.

7. Term and Termination

7.1  Term

Unless otherwise specified in the Order, the initial term of this Agreement will begin on the Effective Date and shall continue thereafter until the End Date specified in the Order (the “Initial Term”), and shall thereafter automatically renew for additional periods of one (1) year unless either party provides written notice of its intention not to renew to the other party at least sixty (60) days prior to expiration of the current term (each a “Renewal Term,” and collectively together with the Initial Term, the “Term”). If no End Date is specified in the Order, the End Date will be one year from the Effective Date of this Agreement.

7.2  Termination

Either party may terminate this Agreement if the other party materially breaches this Agreement and such breach has not been cured within thirty (30) days of providing notice thereof.

7.3  Effect of Termination

Upon expiration or termination for any reason, Customer shall discontinue all use of the Service, and return any and all software and documentation provided to Customer by Hark.

8. Indemnification

8.1  Customer

Customer shall indemnify and hold Hark, its suppliers and licensors harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with a claim which, if true, would constitute a breach of Customer’s obligations under Section 2.5 of this Agreement (regarding misuse of Consumer Content). In the event Hark is required to seek legal remedies to enforce collection of any amounts due under this Agreement, Customer agrees to reimburse Hark for all additional costs associated with collection of that past due amount, including reimbursement of collection and attorneys’ fees.

8.2  Hark

Hark shall indemnify and hold Customer harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of a third-party claim that the Service infringes or misappropriates the intellectual property rights of any third party. Hark shall have no indemnification obligation, and Customer shall indemnify Hark pursuant to this Agreement, for claims of infringement arising from the combination of the Service with any unique aspects of Customer’s business, for instance Customer’s content, products, services, hardware or business processes, or for any use of the Service or any Hark software not expressly authorized herein.

8.3  Process

A party seeking indemnification hereunder shall promptly notify in writing the other party of any claim for which defense and indemnification is sought. Each party agrees that it will not, without the other’s prior written consent, enter into any settlement or compromise of any claim that: (a) results, or creates a likelihood of a result, that in any way diminishes or impairs any right or defense that would otherwise exist absent such settlement or compromise; or (b) constitutes or includes an admission of liability, fault, negligence or wrongdoing on the part of the other party. Each indemnifying party has the sole right to control the defense of any claim for which it is providing indemnification hereunder with counsel mutually acceptable to the parties. The indemnified party may, at its own expense, participate in the defense of any such claim.

9. Warranty / Liability / Total Liability

9.1  Mutual Warranties

Each party represents and warrants to the other that it is duly authorized to execute this Agreement and perform the obligations set forth herein.

9.2  Disclaimer

EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR SATISFACTORY RESULTS ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY HARK, ITS SUPPLIERS AND ITS LICENSORS.

9.3  Limitation

EXCEPT WITH RESPECT TO INDEMNIFICATION OBLIGATIONS OR VIOLATIONS BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, EACH PARTY’S EXCLUSIVE REMEDY AND THE OTHER PARTY’S, ITS SUPPLIERS’ AND LICENSORS’ TOTAL AGGREGATE LIABILITY RELATING TO, OR ARISING OUT OF, THIS AGREEMENT, WHETHER FOR BREACH OF CONTRACT, BREACH OF WARRANTY, OR ANY OTHER CLAIM, SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES INCURRED, UP TO THE AGGREGATE AMOUNTS PAID OR PAYABLE BY CUSTOMER HEREUNDER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE APPLICABLE CLAIM. THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THIS LIMITATION OF DAMAGES.

9.4  Exclusion of Certain Damages and Limitations of Types of Liability

IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES, OR LOST PROFITS OR LOST REVENUE ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SERVICE. THE FOREGOING EXCLUSION AND LIABILITY LIMITATIONS APPLY EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IN THE EVENT OF STRICT OR PRODUCT LIABILITY.

9.5  Interpretation

The limitations in Sections 9.3 and 9.4 are independent of each other. The limitation of damages set forth in Section 9.3 shall survive any failure of essential purpose of the limited remedy in Section 9.4.

10. Publicity

Customer grants Hark a non-exclusive, royalty-free license to use Customer’s name and logo to identify Customer as a customer of Hark on Hark’s website, sales and marketing materials, customer lists, and similar communications, in each case in accordance with any trademark usage guidelines provided by Customer in writing. Customer may revoke this license at any time by providing written notice to Hark, and Hark shall remove Customer’s name and logo from prospective uses within a commercially reasonable period thereafter.

11. Force Majeure

Neither party shall be liable for any failure or delay in performance under this Agreement (other than payment obligations) to the extent such failure or delay is caused by events beyond its reasonable control, including acts of God, natural disasters, fire, flood, earthquake, epidemic or pandemic, war, terrorism, civil unrest, government action or order, labor disputes, internet or telecommunications failures, denial-of-service attacks, or failures of third-party hosting or infrastructure providers (each, a “Force Majeure Event”). The affected party shall use commercially reasonable efforts to resume performance as soon as practicable. If a Force Majeure Event continues for more than thirty (30) consecutive days, either party may terminate this Agreement upon written notice without liability.

12. Notices and Requests

Either party may give notice to the other party by means of electronic mail to the primary contact designated on the Order or by written communication sent by first class mail or pre-paid post, either of which shall constitute written notice under this Agreement. Notices to Hark shall be addressed to: Hark Technologies, Inc., 6 Bayview Ave, FL 1, Northport, NY 11768, with a copy by email to contact@sendhark.com. Notices to Customer shall be addressed to the contact and address set forth on the Order. Notices are deemed received: (a) upon delivery, if delivered personally; (b) three (3) business days after deposit, if sent by first class mail or pre-paid post; or (c) on the date of transmission, if sent by email (provided no bounce-back or non-delivery message is received). All additional access licenses purchased by Customer during the Term shall be subject to the terms of this Agreement. For clarity, in no event shall any other term or provision of this Agreement be deemed modified, amended or altered as a result of such purchase, and all other changes to this Agreement shall be governed by Section 13.

13. Additional Terms

Neither party shall be bound by any subsequent terms, conditions or other obligations included in any purchase order, receipt, acceptance, confirmation or other correspondence unless expressly assented to in writing by both parties. The parties may supplement the terms of this Agreement at any time by signing a written addendum, which shall be deemed incorporated by this reference upon execution. The terms of any addendum shall control any conflicting terms in this Agreement. Unless expressly stated otherwise in an applicable addendum, all addenda shall terminate upon the expiration or termination of this Agreement.

14. Assignment

Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other party, except that either party may assign this Agreement, without consent, to an affiliate or in connection with a merger, acquisition, corporate reorganization, financing, or sale of all or substantially all of its assets or equity. Any attempted assignment in violation of this Section is void. This Agreement shall be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.

15. General

This Agreement shall be governed by the laws of the State of New York and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction to the contrary, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement or the Service shall be subject to the exclusive jurisdiction of the state and federal courts located in New York, New York. No joint venture, partnership, employment, agency or exclusive relationship exists between the parties as a result of this Agreement or use of the Service. The failure of Hark to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision. All disclaimers, limitations, payment obligations and restrictions of warranty shall survive termination of this Agreement, as well as the provisions of this “General” section. If any part of this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the Service will immediately terminate, except for those provisions noted above which will continue in full force and effect. This Agreement, together with the following exhibits and the documents incorporated herein by reference (including the Hark Privacy Notice and the Hark Data Processing Addendum), comprises the entire agreement between Customer and Hark and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.