Terms of Service

SOFTWARE-AS-A-SERVICE AGREEMENT

Last Modified: 4/2/2025

This SOFTWARE-AS-A-SERVICE AGREEMENT (this “Agreement”) is a binding contract between you (“Customer,” “you,” or “your”) and Mainframe Computer, Inc., a Delaware corporation (“Mainframe”). This Agreement governs your access to and use of Cobot (as defined below).

By signing up for Cobot, you acknowledge that you have read and understand this Agreement, and you agree to be legally bound by its terms. You represent and warrant that you have the right, power, and authority to enter into this Agreement and, if entering into this Agreement on behalf of an organization, that you have the legal authority to bind such organization. If you do not agree to these terms, you may not access or use Cobot.. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS OR USE Cobot.

Mainframe has developed a cloud-based workspace solution that enables Users to interact with and delegate tasks to AI-powered agents (each, an “Agent”), who can take action, make updates, and orchestrate workflows across third-party tools, as may be further described on the Order (collectively, the “Cobot”). Customer desires to secure access to Cobot, and Mainframe desires to provide access to Cobot to Customer.

1. DEFINITIONS. Capitalized terms have the meaning set forth below or as defined within this Agreement.
   1. “AI Tools” means generative artificial intelligence and machine learning services or applications that are integrated into Cobot, including without limitation, third-party large language models.
   2. “Applicable Privacy Laws” means the data protection, data security and privacy laws and regulations of any jurisdiction applicable to Cobot under this Agreement.
   3. “Confidential Information” means all information regarding a party’s business, including, without limitation, technical, marketing, financial, employee, planning, and other confidential or proprietary information, that (a) is clearly identified as confidential or proprietary at the time of disclosure, or (b) the receiving party knew or should have known, given the nature of the information and the circumstances of its disclosure, was considered confidential or proprietary.
   4. “Customer Content” means any content or information uploaded or transmitted to Cobot by Customer or Users, including from Third-Party Services. Customer Content includes Customer Marks. Customer Content does not include Performance Data.
   5. “Customer Marks” means Customer’s trademarks, tradenames, service marks, and logos.
   6. “Documentation” means all specifications, user manuals, and other technical materials relating to Cobot that are provided or made available to Customer, and as may be modified by Mainframe from time to time.
   7. “Fees” means the fees for Cobot as set forth on the Order.
   8. “Mainframe Technology” means Cobot, Performance Data, the Documentation, and all applicable software, data, or technical information used by Mainframe or provided to Customer in connection with the foregoing.
   9. “Order” means an order presented to you within Mainframe’s website in connection with your acceptance of this Agreement, which describes Cobot and applicable Fees.
   10. “Performance Data” means general performance and usage data about Cobot, including metadata regarding Customer’s use of Cobot (such as technical logs, task types, completion rates, and agent success metrics). Performance Data does not identify Customer or any User.
   11. “Personal Data” means Customer Content that constitutes “personal data,” “personal information,” or “personally identifiable information” defined in Applicable Privacy Laws or information of a similar character regulated thereby, except that Personal Data does not include such information pertaining to Customer personnel who are business contacts for Mainframe, or such information received by Mainframe directly or from other sources (such as its other customers) independent of Mainframe’s relationship with Customer.
   12. “Third-Party Service” means any third-party service or application connected to, or integrated with, Cobot by or on behalf of Customer.
   13. “Users” means employees and independent contractors who are authorized by Customer to access Cobot pursuant to Customer’s rights under this Agreement.

2. MAINFRAME SERVICE; ACCESS; RESTRICTIONS.
   1. Subscription to Cobot. Subject to the terms and conditions of this Agreement, Mainframe hereby grants to Customer a revocable, non-sublicensable, non-transferable (except as provided in Section 11.2), non-exclusive right to access and use Cobot and accompanying Documentation solely for Customer’s internal business purposes.
   2. Access. Each User will be provided access to and use of Cobot through unique and confidential account credentials. These credentials cannot be shared or used by more than one individual User to access Cobot. Customer is responsible for maintaining the confidentiality of all Users’ account credentials and is solely responsible for all activities that occur under these User accounts. Customer will promptly notify Mainframe of any actual or suspected unauthorized use or access to its account.
   3. Support. Subject to the terms and conditions of this Agreement, Mainframe will exercise commercially reasonable efforts to: (a) provide support to Customer for the use of Cobot; and (b) keep Cobot operational and available to Customer, in each case in accordance with its standard policies and procedures.
   4. Restrictions. Customer will not, and will not permit any User or other party to: (a) allow any third party to access the Mainframe Technology except as expressly allowed herein; (b) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Mainframe Technology for the benefit of any unauthorized third party; (c) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Mainframe Technology, except as permitted by law; (d) use any automated software, devices or other processes to “scrape,” extract, or download data from the Mainframe Technology (other than Customer Content) without the prior written consent of Mainframe; (e) interfere in any manner with the operation of the Mainframe Technology or the hardware and network used to operate the same, or attempt to probe, scan or test vulnerability of the Mainframe Technology without the prior written consent of Mainframe; (f) attempt to access the Mainframe Technology through any unapproved interface; (g) attempt to circumvent any usage restrictions of the Mainframe Technology; (h) modify, copy or make derivative works based on any part of the Mainframe Technology; (i) access or use the Mainframe Technology to build a similar or competitive product or service or otherwise engage in competitive analysis or benchmarking; (j) remove, alter, or obscure any proprietary notices (including copyright and trademark notices) of Mainframe or its licensors on the Mainframe Technology or any copies thereof; or (k) otherwise use the Mainframe Technology in any manner that exceeds the scope of use permitted under Section 2.1 or in a manner inconsistent with applicable law, the Documentation, the Order or this Agreement.
   5. Suspension. Mainframe reserves the right to suspend Customer’s or any User’s access to Cobot for any failure, or suspected failure, to comply with Section 2.4. Mainframe may also suspend Customer’s or any User’s access to all or any part of Cobot, without notice and without incurring any resulting obligation or liability, if Mainframe believes, in its good faith and reasonable discretion, that Customer’s or any User’s use of Cobot poses a risk to the security or integrity of Mainframe’s systems, interferes with Mainframe’s ability to reliably provide Cobot to other customers, or may subject Mainframe to liability.
   6. Customer Content. Customer will have the sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Content. The Customer Content will not: (a) be unlawful; (b) contain any sensitive personal information, including but not limited to personal medical information, personal financial information, or social security numbers, (c) knowingly contain any viruses, worms or other malicious computer programming codes intended to damage Cobot; or (d) violate the intellectual property, privacy, or other rights of any third party or violate any Applicable Privacy Laws.
   7. Third-Party Services. Customer may elect, or where it is a necessary part of Cobot, may be required, to link certain Third-Party Services (such as payment processors, workspace tools, and CRMs) to Cobot, including by entering Customer’s API keys associated with its account with such Third-Party Service. Customer acknowledges that: (a) Mainframe may access any Customer Content provided via a Third-Party Service so that it may be used in accordance with the terms of this Agreement, and (b) it is instructing Mainframe to share Customer Content (including Personal Data where directed) with the providers of such Third-Party Services; (c) it is responsible for ensuring that Customer is entitled to grant Mainframe access to Customer’s account with such Third-Party Service; and (d) it is responsible for all activity under the Third-Party Services and any content derived therefrom, including all payment obligations associated with a Third-Party Service. Third-Party Services are not under the control of Mainframe, and Mainframe is not responsible for any Third-Party Services. Customer’s use of the Third-Party Services is governed by the Customer’s agreement with providers of the Third-Party Services. Customer acknowledges and accepts that Mainframe does not guarantee the continued interoperability or availability of any Third-Party Service, which may be updated or removed from Cobot from time to time.
   8. Use of AI Tools. Cobot includes AI Tools (including the Agents). Customer may submit queries or other inputs to the AI Tools (“Inputs”) and receive back outputs generated by the AI Tools in response to Customer’s Inputs (“Outputs”). Inputs and Outputs are both Customer Content. Inputs will be shared with the third parties that provide the AI Tools in order to generate Outputs. Customer acknowledges and accepts that Cobot enables the Customer to deploy the Agent functionality such that the Agents take actions on Customer’s behalf. Customer is responsible for setting and updating permissions and access levels for Agents, including which actions you authorize the Agents to take on your behalf. If you request that an Agent take certain actions within Cobot, including without limitation, performing transactions or sending transaction messages, you acknowledge that you are solely responsible for authorizing such conduct and are responsible for the actions that the Agent takes on your behalf. Given the probabilistic nature of machine learning, you acknowledge that use of the AI Tools or Agents may in some situations result in inaccurate or incomplete Outputs. You, and not Mainframe, will be solely responsible for your use of the Agents, including any of the Outputs and decisions made or actions taken (whether by you or the Agent) based on any Input or Output. You acknowledge and agree that any conduct you engage in as a result of the information provided by an Agent or any other AI-enabled feature or action made available through Mainframe or Third-Party Services is at your own risk. Because Agents use artificial intelligence to communicate with you and take actions on your behalf (if you so request), an Agent may provide Output that is inaccurate. You agree that Mainframe will not be held liable to you or any third party for or as a result of an Agent (or any other AI-enabled feature made available through Mainframe or Third-Party Services) providing inaccurate information to you. You acknowledge and agree that Mainframe does not represent or warrant that Outputs will (a) be free from third-party content or (b) not infringe third-party intellectual property rights.

3. FEES AND PAYMENT.
   1. Subscriptions; Fees. Licenses to Cobot are available on a subscription basis (a “Subscription”). The Fees for such Subscription will be set forth on an applicable Order and will be billed at the start of the Subscription and at regular intervals in accordance with Customer’s elections on the Order at the time of purchase. Mainframe reserves the right to change the timing of billing and to change the Subscription pricing at any time. If changes to the Subscription pricing occur that impact Customer’s Subscription, Mainframe will use commercially reasonable efforts to notify Customer, such as by sending an email to the email address associated with Customer’s account. If Customer does not agree with such changes, Customer may cancel its Subscription as set forth in Section 3.1(b) (Cancelling Subscriptions). Fees are non-refundable (except as expressly set out in an Order) and are not eligible for set off. Customer will pay the Fees within thirty (30) days of receipt of an invoice. Customer will maintain complete, accurate and up-to-date Customer billing and contact information.
      1. Automatic Renewal. Each Subscription will continue and automatically renew at Mainframe’s then-current price for such Subscription until terminated in accordance with this Agreement (each such renewal term, a “Renewal Term”). The frequency at which Customer’s Subscription renews (i.e., monthly, annually, etc.) will be designated on the Order. By subscribing, Customer authorizes Mainframe to charge the payment method designated in Customer’s account now, and again at the beginning of any Renewal Term. Upon renewal of Customer’s Subscription, if Mainframe does not receive payment, (i) Customer shall pay all amounts due on Customer’s account upon demand and/or (ii) Customer agrees that Mainframe may either terminate or suspend Customer’s Subscription and continue to attempt to charge Customer’s designated payment method until payment is received (upon receipt of payment, Customer’s account will be activated and for purposes of automatic renewal, the Renewal Term will begin as of the day payment was received).
      2. Cancelling Subscriptions. Customer may cancel its Subscription by contacting Mainframe (in accordance with Section 11.3), which will be effective at the end of the then-current Subscription term. For clarity, any cancellation of a Subscription will subject to any minimum term agreed in an Order.
      3. Effect of Cancellation. If Customer cancels its Subscription, Customer may use its Subscription until the end of the then-current Subscription term; Customer’s Subscription will not be renewed after the then-current term expires. However, Customer will not be eligible for a prorated refund of any portion of the Fees paid for the then-current Subscription period.
      4. Upgrades and Downgrades. If Customer chooses to upgrade its Subscription in the middle of a Subscription period, such upgrade will take effect immediately and any incremental Fees associated with such upgrade will be charged in accordance with this Agreement. In any future Renewal Term, the Fees will reflect any such upgrades. If Customer chooses to downgrade a Subscription, the downgrade will take effect as of the first day of the next Renewal Term. Downgrading a Subscription may cause loss of content, features, or capacity of Cobot, and Mainframe does not accept any liability for such loss.
      5. Free Trials and Promotional Access. Any free trial or other promotion that provides Users access to Cobot must be used within the specified time of the trial. At the end of the trial or promotional period, Customer’s use of such Cobot will automatically roll into a paid Subscription at Mainframe’s then-current Fees, and Customer will be charged for such Subscription as set forth in this Section 3.1 (Subscriptions; Fees) if it does not cancel prior to the start date of the Subscription period.
   2. Payments. Customer agrees to pay all charges at the amounts in effect when such charges are incurred. Customer must provide a valid credit, debit card (Visa, MasterCard, or any other accepted issuer) or other specified payment mechanism (collectively, “Payment Provider”) as a condition to making any payments. Your Payment Provider agreement governs your use of the designated credit or debit card or other mechanism, and you must refer to that agreement and not this Agreement to determine your rights and liabilities. You hereby consent to provide and authorize Mainframe and its service providers (including any Payment Providers) to share any information and payment instructions you provide to the extent required to complete the payment transactions in accordance with this Agreement, including personal, financial, credit card payment, and transaction information. You may withdraw such consent by cancelling your Subscription in accordance with Section 3.1(b) (Cancelling Subscriptions).
   3. Payment Information. By providing your payment and financial information, you agree that Mainframe, its service providers, and any of its third-party payment processors (e.g., Stripe) are authorized to immediately charge your account for all applicable Fees and that no additional notice or consent is required.
   4. Taxes. All Fees owed by Customer in connection with this Agreement are exclusive of, and Customer will pay, all sales, use, excise and other taxes and applicable export and import fees, customs duties and similar charges that may be levied upon Customer in connection with this Agreement, except for employment taxes and taxes based on Mainframe’s income.
   5. Late Payment. Payments by Customer that are past due will be subject to interest at the rate of one and one-half percent (1½%) per month (or, if less, the maximum allowed by applicable law) of that overdue balance. Mainframe reserves the right (in addition to any other rights or remedies Mainframe may have) to suspend Customer’s access to Cobot if any Fees set forth in the applicable Order are more than thirty (30) days overdue until such amounts are paid in full.

4. PROPRIETARY RIGHTS.
   1. Mainframe Technology. Customer acknowledges that Mainframe retains all right, title and interest in and to the Mainframe Technology, including any enhancements, improvements, or derivatives thereto, and that the Mainframe Technology is protected by intellectual property rights owned by or licensed to Mainframe. Other than as expressly set forth in this Agreement, no license or other rights in the Mainframe Technology are granted to the Customer.
   2. Customer Content. Customer retains all right, title and interest in and to the Customer Content. Customer hereby grants to Mainframe a non-exclusive, worldwide, royalty-free and fully paid-up license during the Term (as defined below) to access and use Customer Content to provide Cobot and any accompanying support to Customer as set forth in this Agreement.
   3. Performance Data. Mainframe may monitor Customer’s use of Cobot and may collect and compile Performance Data. As between Mainframe and Customer, all right, title, and interest in the Performance Data, and all intellectual property rights therein, belong to and are retained solely by Mainframe. Mainframe may use Performance Data to operate, improve, analyze, and support Cobot and for other lawful business purposes, provided that the Performance Data will not identify Customer or Customer’s Confidential Information.
   4. Feedback. Customer or its Users may give feedback to Mainframe on the use, operation, and functionality of Cobot, including information about operating results, known or suspected bugs, errors, or compatibility problems, suggested modifications, and user-desired features, functionality, or workflows (collectively, “Feedback”). Mainframe may use and incorporate such Feedback connection with its business, products and services without restriction or consideration to Customer. Mainframe will not identify Customer as the source of any such Feedback. Mainframe acknowledges that all Feedback is provided to Mainframe on an “as is” basis and that Customer is not responsible for Mainframe’s use of any Feedback, including any results therefrom.

5. DATA SECURITY; PRIVACY. During the Term (as defined below), Mainframe will implement and maintain commercially reasonable administrative, technical, and physical measures designed to safeguard against unauthorized access to or use or disclosure of any Customer Content or Personal Data. Customer and its Users will be responsible for all changes to and/or deletions of Customer Content and the security of all passwords and other usernames and passwords required to access Cobot. Mainframe will process Personal Data in accordance with the Data Processing Addendum available here.

6. CONFIDENTIAL INFORMATION.
   1. Restrictions. As a recipient of Confidential Information, each party agrees that it will (a) use the Confidential Information of the disclosing party only as set forth in this Agreement, (b) not disclose to any third party any Confidential Information of the disclosing party, except as expressly permitted under this Agreement, (c) limit access to the Confidential Information of the disclosing party to its employees and contractors who have a need to know such information to use or provide Cobot, and ensure that such employees or contractors are bound by confidentiality obligations at least as protective as those contained herein, and (d) protect the Confidential Information of the disclosing party from unauthorized use, access, and disclosure in a reasonable manner.
   2. Exclusions. The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information that (a) is or becomes generally known and available to the public through no act or omission of the receiving party, (b) was in the receiving party’s lawful possession without confidentiality restrictions prior to disclosure by the disclosing party, (c) is received without confidentiality restrictions from a third party with the right to make such a disclosure, or (d) is independently developed by the receiving party. The receiving party may disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, provided that the receiving party will, if permitted by law, provide advance notice of the disclosure to the disclosing party and cooperate so that the disclosing party has the opportunity to obtain appropriate confidential treatment for such Confidential Information.

7. TERM AND TERMINATION.
   1. Term. The term of this Agreement will commence on the Effective Date and continue until so long as Customer has an active Subscription in place (the “Term”).
   2. Termination. Either party may terminate this Agreement upon written notice if: (a) the other party materially breaches the Agreement and does not cure such breach (if curable) within thirty (30) days after written notice of such breach, or (b) the other party: (i) becomes insolvent, (ii) files a petition in bankruptcy that is not dismissed within sixty (60) days of commencement, or (iii) makes an assignment for the benefit of its creditors.
   3. Effect of Termination. Upon the expiration or termination of this Agreement for any reason, the rights and licenses granted to Customer hereunder will immediately terminate and Customer will cease use of Cobot and Documentation. Termination of this Agreement will not relieve Customer of its obligation to pay all Fees that accrued prior to such termination. Each party will return to the other or destroy all property (including any Confidential Information) of the other party, except to comply with Section 7.4 (Data Export) below. Notwithstanding the foregoing, each party may retain the Confidential Information of the other in accordance with its standard backup procedures, subject to the requirements in Section 5 (Data Security; Privacy) and Section 6 (Confidential Information). Sections 1, 2.4, 3.2 through 3.5 (until such time that all Fees are paid), 4, 6, 7.3, 7.4, 8.3 and 9 through 11 will survive the termination of this Agreement.
   4. Data Export. During the Term and for thirty (30) days following termination, Mainframe will make all Customer Content available for export from Cobot. Following this window for the export of Customer Content, Mainframe may irretrievably erase any Customer Content stored on Cobot.

8. LIMITED WARRANTIES.
   1. By Customer. Customer represents and warrants that it has all rights necessary to upload and use the Customer Content with Cobot (and has provided all required notices to its end customers related thereto) and to grant Mainframe all licenses to Customer Content in this Agreement without violating any third-party intellectual property, privacy, or other rights, including Applicable Privacy Laws or any agreement with any Third-Party Service.
   2. By Mainframe. During the Term, Mainframe warrants that Cobot, when used in accordance with the Documentation and the terms of this Agreement, will operate as described in the Documentation in all material respects. If Customer notifies Mainframe of any breach of the foregoing warranty, Mainframe will, as Customer’s sole and exclusive remedy, use commercially reasonable efforts to repair and fix the non-conformity.
   3. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) THE MAINFRAME TECHNOLOGY IS PROVIDED “AS IS” AND “AS AVAILABLE” AND (B) MAINFRAME AND ITS SUPPLIERS MAKE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, AND HEREBY EXPRESSLY DISCLAIM ANY AND ALL OTHER WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NON-INFRINGEMENT. MAINFRAME DOES NOT WARRANT OR REPRESENT THAT THE MAINFRAME TECHNOLOGY WILL BE FREE FROM BUGS OR UNINTERRUPTED OR ERROR-FREE.
      1. CUSTOMER ACKNOWLEDGES AND AGREES THAT MAINFRAME IS NOT LIABLE, AND CUSTOMER AGREES IT WILL NOT SEEK TO HOLD MAINFRAME LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING ANY THIRD-PARTY SERVICE, AND THAT THE RISK OF INJURY FROM ANY THIRD PARTY RESTS ENTIRELY WITH CUSTOMER.
      2. CUSTOMER ACKNOWLEDGES THAT THE SERVICES LEVERAGE AI TOOLS AND THAT MAINFRAME IS NOT LIABLE, AND CUSTOMER AGREES NOT TO SEEK TO HOLD MAINFRAME LIABLE, FOR ANY THIRD-PARTY AI TOOLS. CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING THAT ITS USE OF Cobot AND OUTPUTS COMPLY WITH ALL APPLICABLE LAWS. CUSTOMER WILL BE SOLELY RESPONSIBLE FOR CUSTOMER’S USE OF Cobot AND ANY OUTPUTS RESULTING THEREFROM. CUSTOMER SHOULD EVALUATE THE FITNESS OF ANY OUTPUT AS APPROPRIATE FOR CUSTOMER’S SPECIFIC USE CASE.
      3. FROM TIME TO TIME, MAINFRAME MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH CUSTOMER MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT MAINFRAME’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.

9. INDEMNITY.
   1. By Mainframe. If any action is instituted by a third party against Customer based upon a claim that the Mainframe Technology, as delivered and when used in accordance with this Agreement, infringes any third party’s intellectual property rights, Mainframe will defend such action at its own expense on behalf of Customer and will pay all damages attributable to such claim that are finally awarded against Customer or paid in settlement. The foregoing indemnification obligation does not apply to alleged infringement or misappropriation arising from Outputs or any third-party AI Tools. If the Mainframe Technology is enjoined or, in Mainframe’s determination is likely to be enjoined, Mainframe will, at its option and expense (a) procure for Customer the right to continue using the Mainframe Technology, (b) replace or modify the Mainframe Technology so that it is no longer infringing but continues to provide comparable functionality, or (c) terminate this Agreement and Customer’s access to the Mainframe Technology and refund any amounts previously paid for the Mainframe Technology attributable to the remainder of the then-current Term. Mainframe will have no obligation under this section or otherwise with respect to any infringement claim based upon: (i) any use of the Mainframe Technology not in accordance with this Agreement or the Documentation; (ii) any use of the Mainframe Technology in combination with other products, equipment, software, or data not supplied by Mainframe, including Third-Party Services; or (iii) any modification of the Mainframe Technology by any person other than Mainframe or its authorized agents. This Section sets forth the entire obligation of Mainframe and the exclusive remedy of Customer against Mainframe for any claim that the Mainframe Technology infringes a third party’s intellectual property right.
   2. By Customer. If any action is instituted by a third party against Mainframe relating to (a) Customer Content or (b) Customer’s breach or alleged breach of Section 2.6 (Customer Content) or 8.1 (Limited Warranties By Customer), Customer will defend such action at its own expense on behalf of Mainframe and will pay all damages attributable to such claim that are finally awarded against Mainframe or paid in settlement of such claim.
   3. Procedure. Any party that is seeking to be indemnified under the provision of this Section 9 (the “Indemnified Party”) must: (a) promptly notify the other party (the “Indemnifying Party”) of any third-party claim, suit, or action for which it is seeking an indemnity hereunder (a “Claim”); (b) give the Indemnifying Party the sole control over the defense of such Claim; and (c) reasonably cooperate with the Indemnifying Party at the Indemnifying Party’s expense. The Indemnifying Party will not agree to any settlement that requires the Indemnified Party to admit to fault or to take or refrain from taking any action without the Indemnified Party’s prior written consent.

10. LIMITATION OF LIABILITY. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL MAINFRAME BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST PROFITS IN ANY WAY RELATING TO THIS AGREEMENT. IN NO EVENT WILL MAINFRAME’S AGGREGATE, CUMULATIVE LIABILITY IN ANY WAY RELATING TO THIS AGREEMENT EXCEED THE AMOUNT OF FEES ACTUALLY RECEIVED BY MAINFRAME FROM CUSTOMER PURSUANT TO THE APPLICABLE ORDER DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THE FOREGOING LIMITATIONS WILL NOT APPLY TO LIABILITIES THAT CANNOT BE LIMITED BY LAW. THE PARTIES WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR SUCH LIMITATIONS.

11. GENERAL PROVISIONS.
    1. Governing Law; Forum. This Agreement will be governed by, and all disputes arising under or in connection with this Agreement will be resolved in accordance with, the laws of the State of New York, exclusive of conflict or choice of law rules. Each party agrees that any action, suit, or other proceeding based upon or arising from this Agreement will be brought and maintained only in a federal or state court of competent jurisdiction located in New York County, New York. Each party consents to the mandatory jurisdiction and venue of such courts and waives any right to object to jurisdiction and venue. Notwithstanding the foregoing, nothing will prevent a party from seeking relief in any court of competent jurisdiction for any misuse or misappropriation of that party’s intellectual property rights or Confidential Information.
    2. Assignment; Subcontractors. Neither party may assign this Agreement, including any rights or obligations arising hereunder, without the prior written consent of the other party, except that Mainframe may assign this Agreement without the consent of Customer in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempted assignment or transfer in violation of the foregoing will be null and void. This Agreement will be binding upon each party’s respective permitted successors and assigns. Customer agrees that Mainframe may subcontract certain aspects of Cobot to qualified third parties, provided that any such subcontracting arrangement will not relieve Mainframe of any of its obligations hereunder.
    3. Notices. Any notice under this Agreement must be given in writing to the other party at the email or physical address set forth on an Order. Notices will be deemed to have been given upon: (a) receipt (or when delivery is refused) if delivered in person or sent by recognized courier service, or (b) delivery, if sent by email that references this Section 11.3.
    4. Force Majeure. Any delay in the performance of any duties or obligations of either party (except for the obligation to pay Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, war, fire, earthquake, typhoon, flood, natural disasters, governmental action, pandemic/epidemic, cloud-service provider outage, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.
    5. Publicity. Mainframe may use Customer’s name and Customer Marks to identify Customer as a customer, including on Mainframe’s website, social media and in sales and marketing materials, in the same manner in which it uses the names of its other customers. Mainframe may not use Customer’s name or Customer Marks in any other way without Customer’s prior written consent.
    6. Export. Customer agrees not to use, export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from Mainframe, or any products using such data, in violation of the United States export laws or regulations. Further, each party agrees to comply with all relevant export laws and regulations of the United States and the country or territory in which the Mainframe Technology is provided (“Export Laws”) to assure that neither any deliverable, if any, nor any direct product thereof is (1) exported, directly or indirectly, in violation of the Export Laws or (2) intended to be used for any purposes prohibited by the Export Laws. Customer further represents that (i) Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country and (ii) Customer is not listed on any U.S. Government list of prohibited or restricted parties.
    7. U.S. Government Restricted Rights. If Customer is a government end user, then this provision also applies to Customer. The software contained within Cobot and provided in connection with this Agreement has been developed entirely at private expense, as defined in FAR section 2.101, DFARS section 252.227-7014(a)(1) and DFARS section 252.227- 7015 (or any equivalent or subsequent agency regulation thereof), and is provided as “commercial items,” “commercial computer software,” and/or “commercial computer software documentation.” Consistent with DFARS section 227.7202 and FAR section 12.212, and to the extent required under U.S. federal law, the minimum restricted rights as set forth in FAR section 52.227-19 (or any equivalent or subsequent agency regulation thereof), any use, modification, reproduction, release, performance, display, disclosure, or distribution thereof by or for the U.S. Government will be governed solely by this Agreement and will be prohibited except to the extent expressly permitted by this Agreement.
    8. Miscellaneous. This Agreement (as may be modified from time to time) is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings. To the extent of any inconsistency between this Agreement and an Order, the Order shall prevail solely to the extent of the inconsistency. No terms of any purchase order, acknowledgement, or other form provided by Customer will modify this Agreement, regardless of any failure of Mainframe to object to such terms. Any ambiguity in this Agreement shall be interpreted equitably without regard to which party was the drafter hereof. Mainframe may modify the terms of this Agreement at any time, and any such modification will take effect during a subsequent Renewal Term. The terms of this Agreement In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. The headings of Sections of this Agreement are for convenience and are not to be used in interpreting this Agreement. As used in this Agreement, the word “including” means “including but not limited to.” The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture, or employee-employer relationship is intended or created by this Agreement. There are no third-party beneficiaries of this Agreement.