General. Where you have access to features of the Software that rely on artificial intelligence, you acknowledge and agree: (a) to the use and incorporation of artificial intelligence technology into the Software by us (“AI Technology”); (b) the AI Technology is based on algorithms and models developed by us and artificial intelligence models provided by third-party providers (“AI Model Providers”), which may change over time through updates and improvements; (c) the effectiveness, accuracy and outcomes of the AI Technology depend on various factors, including the quality and quantity of your Data input into the Software, the configuration of the Software, and our ongoing development efforts; (d) you must not rely solely on the AI Technology’s outputs, recommendations or results when making critical decisions or taking actions that could have significant legal, financial or operational consequences; (e) you must exercise judgment, due diligence and appropriate oversight when interpreting and applying the AI Technology’s outputs; and (f) to the maximum extent permitted by law, we are not liable for, and you release us from, any direct, indirect, consequential or other claim or damages arising from your reliance on the AI Technology’s outputs or recommendations without exercising the judgment, due diligence and oversight described in paragraph (e).

Model training. Checkbox does not train, fine-tune or improve any general-purpose or multi-customer artificial intelligence model on your Data. Checkbox does, however, need to configure, tune, test and train your own instance of the AI Technology and your account using your Data in order for the Software to operate as intended for you, and you authorise Checkbox to do so. Any configuration, tuning or model state resulting from that activity is segregated to your instance, is used solely for your benefit, and is not made available to, or used for the benefit of, Checkbox’s other customers or Checkbox’s general product development.

AI source data. Checkbox does not use publicly scraped or public web data as source material for the AI Technology’s substantive outputs. The source material for outputs generated for you is your Data, together with any materials you or your Authorised Users provide or designate for that purpose, and the underlying general capabilities of the AI Model Providers’ models.

Your Data and AI Model Providers. Checkbox agrees that your Data input into the Software for use with the AI Technology: (a) will not be made available, directly or indirectly, to the public; (b) will not be used to train or improve any model or service offering of Checkbox or of any AI Model Provider, other than as expressly permitted by Section 11.2; (c) will only be sent to AI Model Providers to the extent required to perform the Services for you; and (d) will not be retained by AI Model Providers, except as required by law or to prevent abuse and misuse, in which case the Data will be deleted after that purpose is fulfilled.

Notice of material AI model changes. Checkbox may change, add or replace the AI Model Providers and models used to provide the AI Technology from time to time. Where Checkbox makes a change that it reasonably considers will have a material adverse effect on the accuracy, functionality or performance of the AI Technology as used by you, Checkbox will give you notice of that change. For the avoidance of doubt, this Section 11.5 confers a right to notice only, and does not confer any right to approve, consent to, object to or reject any change to an AI Model Provider or model.

AI Model Provider policy changes. If Checkbox becomes unable to meet its obligations under Section 11.4 as a result of a change in the policies of an AI Model Provider, Checkbox will notify you promptly. You may then give Checkbox written notice to cease all use and access of the AI Technology, and Checkbox will refund any prepaid Software fees directly relating to the access or use of the AI Technology covering the remainder of the then-current License Term after the effective date of that notice.

General Warranties. Each Party warrants that: (a) it has the right, power, authority and entitlement to execute this Agreement and perform its obligations; (b) this Agreement constitutes a legal, valid and binding obligation enforceable in accordance with its terms; (c) in entering into and performing its obligations it has not, and will not, be in breach of any relevant law or any obligation owed to another person; (d) there is no current, pending or threatened litigation, arbitration, investigation, inquiry or proceeding in which it is involved that will or may have an adverse effect on its ability to comply with this Agreement; and (e) it has all necessary licences, approvals, permits and consents to enter into and perform its obligations. You further warrant that (f) you have all hardware, software and services necessary to access and use the Software; and (g) all information and documentation you provide to us in connection with this Agreement is true, correct and complete in all material respects, and you acknowledge that we will rely on it in order to provide the Software and Professional Services.

Software and Services Warranties. Checkbox warrants that (a) to the best of its knowledge, the Software does not infringe the Intellectual Property Rights of any third party and there are no actual or threatened proceedings for intellectual property infringement in relation to the Software; (b) it will take reasonable commercial efforts to ensure that the Software, in the form and when provided to you, will be free of any viruses, malware or other harmful code; (c) the Software will perform materially in accordance with the applicable documentation during the License Term; and (d) the Professional Services will be performed in a professional and workmanlike manner. For any breach of the foregoing warranties, your sole and exclusive remedy, and Checkbox’s sole obligation, is to remediate the affected Software or re-perform the non-conforming Professional Services promptly upon notice.

Warranty Disclaimer. Except as expressly set out in Sections 12.1 and 12.2, Checkbox and its suppliers expressly disclaim all warranties and representations of any kind, including any warranty of non-infringement, title, fitness for a particular purpose, functionality or merchantability, whether express, implied or statutory. To the maximum extent permitted by law, Checkbox will not be liable, and you waive and release Checkbox from any liability (including any Liability), for delays, interruptions, service failures or other problems inherent in the use of the internet and electronic communications or other systems outside the reasonable control of Checkbox. To the maximum extent permitted by law, Checkbox does not represent, warrant or guarantee that: (a) the Software will operate in combination with any other hardware, software, system or data, unless expressly stated by Checkbox; (b) the Software, or any products, services, information or other material purchased or obtained by you through the Software, will meet your requirements or expectations; (c) non-substantive and non-material errors or defects will be corrected; or (d) except as set out in Section 12.2(b), the Software is free of viruses or other harmful components.

Statutory Rights. Nothing in this Agreement excludes any applicable statutory right that applies to you and cannot be excluded, restricted or modified (“Statutory Rights”). If any Statutory Rights apply, the duration of the applicable statutorily required warranties, if any, will be limited to the shortest period permitted by law. Where you contract with Checkbox Operations Pty Ltd, nothing in this Agreement excludes, restricts or modifies any guarantee, right, warranty or remedy conferred by the Australian Consumer Law that cannot lawfully be excluded, restricted or modified, and to the extent Checkbox is permitted to limit its liability for a failure to comply with such a guarantee, Checkbox’s liability for that failure is limited, at Checkbox’s option, to supplying the Services again or to paying the cost of having the Services supplied again.

General Indemnity. To the maximum extent permitted by law, each Party will at all times indemnify the other Party from and against any Liability arising out of or in connection with any proceedings commenced by a third party against the other Party where that Liability results from (a) any fraudulent or unlawful act or omission of the first Party or its Personnel; or (b) any breach of confidentiality obligations by the first Party or its Personnel.

Indemnity for Intellectual Property. Checkbox will defend, indemnify and hold harmless the Customer from and against any third-party claims, demands, lawsuits, actions, liabilities, damages and losses arising out of or in connection with any allegation that the Software or the Services infringe, misappropriate or otherwise violate the Intellectual Property Rights of any third party, provided Checkbox has sole control over the defence and settlement of the claim, and provided further that Checkbox will not, without your prior written consent, enter into any settlement that imposes a non-monetary obligation on, or requires an admission of fault by, you. Checkbox’s obligations under this Section do not apply to any claim arising from (a) use of the Software in a manner not authorised by this Agreement or the documentation; (b) modifications made to the Software by anyone other than Checkbox or its authorised agents; or (c) the combination of the Software with any hardware, software or other products not provided or authorised by Checkbox, where the infringement would not have occurred but for that combination. If the Software becomes the subject of an infringement claim, Checkbox may procure the right for you to continue using the Software, replace or modify it so that it is non-infringing without materially reducing functionality, or terminate the affected Order and provide a pro-rata refund of prepaid, unused fees.

Indemnity for Misuse. You will indemnify Checkbox against any third-party claims arising from your use of the Software in breach of Section 2.2 (Restrictions), or from your provision of Data that you did not have the right to provide, except to the extent such claims result from Checkbox’s negligence or breach of this Agreement.

Liability Cap. To the maximum extent permitted by law, each Party’s and its suppliers’ aggregate liability for all Liability to the other arising out of or related to this Agreement will not exceed the amount actually paid by you to us under this Agreement in the twelve (12) months immediately preceding the date on which the Liability arose. This limitation does not apply to a Party’s (a) infringement or misappropriation of Intellectual Property Rights; (b) data protection and privacy obligations; or (c) indemnification obligations under Sections 13.1 to 13.3, in respect of which each Party’s and its suppliers’ aggregate liability will instead not exceed the greater of three (3) times the amount actually paid by you to us under this Agreement in the twelve (12) months immediately preceding the date on which the Liability arose, or one million United States dollars (US$1,000,000). The limitations in this Section 13.4 do not apply to, and do not limit Checkbox’s right to recover in full, any amounts you owe to Checkbox under this Agreement, including fees and charges under any Order or Statement of Work, amounts payable under Sections 7.3 and 7.4, late payment charges and costs of recovery under Section 7.8, and amounts payable on termination under Section 16.5 (together, “Amounts Owed”).

No unlimited liability. For the avoidance of doubt, and notwithstanding anything to the contrary in this Agreement, no Liability of either Party under or in connection with this Agreement is uncapped. Every category of Liability, however arising and whether or not the subject of an exclusion or carve-out elsewhere in this Agreement, is subject to a monetary cap set out in Section 13.4, save only to the extent that a cap is prohibited by applicable law or the Liability comprises Amounts Owed.

Proportionate Liability. To the maximum extent permitted by law, each Party’s liability for any Liability under this Agreement will be reduced proportionately to the extent that the Liability was caused, or contributed to, by the acts or omissions of the other Party.

Liability Waiver. To the maximum extent permitted by law, in no event will a Party be liable to the other for any Consequential Loss. This Section 13.7 does not apply to Amounts Owed.

Exclusions. To the maximum extent permitted by law, Checkbox will not be liable to you for any Liability to the extent caused or contributed to by: (a) a fault or defect in any item of Your Environment; (b) any Force Majeure Event; or (c) any act, omission, failure, outage, defect, change in terms or discontinuation of any third-party service provider, licensor, sub-processor, infrastructure or hosting provider, or AI Model Provider used to provide the Software or the Services, or of any Third Party Input. Checkbox does not control, and does not accept responsibility for the acts or omissions of, the third parties referred to in paragraph (c). Checkbox will use reasonable commercial efforts to select and manage those third parties, and to mitigate the effect on you of any failure by them, but the Parties acknowledge that Checkbox does not warrant their performance.

Refunds. Any refund payable by Checkbox under this Agreement, including under Sections 11.6, 13.2, 16.3(d) and 18.2, is limited to fees that you have actually paid to Checkbox and that are not the subject of a dispute notified under Section 7.7, pro-rated for the unexpired portion of the then-current License Term or, where applicable, for the Services not provided. Checkbox has no obligation to refund any amount that has not been paid, that remains the subject of a dispute, or that relates to Software or Services already provided or Professional Services already performed. Any refund paid counts towards, and does not increase, the applicable cap in Section 13.4.

Coverage. During the term of this Agreement Checkbox will maintain, at a minimum, (a) commercial general liability insurance of no less than US$1,000,000 per occurrence and US$2,000,000 in the aggregate; (b) cyber liability and media liability insurance of at least US$5,000,000 per occurrence and in the aggregate; and (c) workers’ compensation insurance as required by applicable law.

No effect on liability caps. The insurance Checkbox maintains under Section 14.1 does not extend, increase or otherwise affect the limitations of liability in Section 13, and the availability of insurance proceeds is not a basis for any Liability in excess of the caps in Section 13.4.

Term. This Agreement is effective as of the Effective Date and continues until there are no existing Orders or Statements of Work, unless extended by mutual written agreement or terminated earlier under Section 16.

Renewal. The renewal basis for each Order is as elected in that Order. Where an Order does not specify a renewal basis, paragraph (a) applies. (a) Automatic renewal: at least thirty (30) days prior to the expiry of any License Term, either Party may notify the other that it does not wish for the term to be renewed, in which case the Order will expire at the end of the then-current License Term; if neither Party gives notice, the Order will automatically renew for successive periods equal to the initial License Term, and any discounts to the fees will be removed unless otherwise agreed in writing, subject in all cases to Section 7.6. (b) Renewal by agreement: where an Order so elects, the Order will expire at the end of the then-current License Term and any renewal or extension will require the mutual written agreement of the Parties. In either case, if a Party wishes to vary any terms of an Order, it must give at least thirty (30) days’ notice prior to expiry of the current License Term to enable the Parties to discuss the proposed variation.

Termination for Cause. Either Party may terminate this Agreement (including all related Orders) if the other Party: (a) fails to remedy any material breach of this Agreement within thirty (30) days after written notice of the breach; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that Party and is not dismissed within sixty (60) days.

No termination for convenience. Except as expressly set out in Section 16.1, or elsewhere in this Agreement in relation to a specified event, neither Party may terminate this Agreement or any Order for convenience, without cause, or on notice alone. Any purported termination other than in accordance with this Agreement is of no effect.

Effects of Termination for Checkbox. Upon termination or expiry, Checkbox will: (a) stop providing access to the Software and related services; (b) stop providing the Professional Services (if applicable); (c) stop placing orders for supplies or services required in connection with providing access to the Software and related services; and (d) where you have terminated under Section 16.1, refund any prepaid Software fees covering the remainder of the then-current License Term after the effective date of termination, in accordance with Section 13.9.

Data retention, export and deletion. The following applies to your Data on termination or expiry. (a) Retention period: Checkbox will retain your Data, and keep it available for export by you through the Software or in a commonly used, machine-readable format, for ninety (90) days following the effective date of termination or expiry (the “Retention Period”). (b) Deletion: at the end of the Retention Period Checkbox will delete or destroy your Data and, on written request made within the Retention Period, will provide written certification of that deletion or destruction within thirty (30) days of the request. (c) Charges for extended retention or assisted export: if you request that Checkbox retain your Data beyond the Retention Period, or that Checkbox perform or assist with any data export, extraction, migration or transition activity, Checkbox will do so subject to your written agreement to pay Checkbox’s then-current standard rates or such other fees as the Parties agree; Checkbox is not obliged to retain Data beyond the Retention Period, or to provide any assisted export or transition assistance, absent such agreement. (d) Legally required retention: notwithstanding paragraphs (a) to (c), Checkbox may retain your Data for so long as, and to the extent that, Checkbox is required to do so by applicable law, regulation, legal process or a legal hold obligation, or as required for the establishment, exercise or defence of legal claims; Data retained under this paragraph will continue to be held in accordance with Section 8 and the Data Processing Addendum and will be deleted once the obligation or purpose ceases to apply. (e) Other property: upon written request, Checkbox will return to you or destroy all other property, including Confidential Information and Intellectual Property, in its possession that belongs to you.

Effects of Termination for you. Upon termination or expiry, you will: (a) immediately cease and desist from any use of the Software; (b) promptly return to Checkbox, or destroy, all property, including Confidential Information and Intellectual Property, in your possession that belongs to Checkbox; (c) pay any fees payable to Checkbox for the period prior to the effective date of termination; and (d) where Checkbox has terminated under Section 16.1, pay any unpaid fees, including any fees covering the remainder of the then-current License Term, promptly after the effective date of termination, together with any fees for Professional Services delivered by that date.

Survival. Expiry or termination is without prejudice to any rights or liabilities accrued prior to that date. The following survive any termination or expiration: Sections 2.2, 4.1, 4.4, 4.5, 7, 8, 9, 10, 12.3, 13, 16, 17, 18 and 19.

Informal Resolution. If a dispute arises out of or in relation to this Agreement, no Party may commence court or arbitration proceedings (other than for urgent interlocutory or equitable relief) unless it has complied with this Section. A Party claiming a dispute has arisen must give written notice specifying its nature. On receipt, the Parties’ representatives must endeavour in good faith to resolve it expeditiously. Failing agreement within thirty (30) days of the notice, either Party may refer the dispute to the Parties’ senior leadership (or their nominees), who must cooperate in good faith to resolve it within thirty (30) days of referral.

Formal Resolution. If senior leadership fail to resolve the dispute within thirty (30) days of referral, the Parties must, at the written request of either Party and within fourteen (14) days of receipt of the request, submit to mediation, expert evaluation or determination, or a similar technique agreed by them. If the Parties do not agree within seven (7) days of the request on the technique, procedures, timetable and selection and remuneration of any independent person required, the Parties must mediate in accordance with the Commercial Mediation Procedures of the American Arbitration Association, which will appoint the mediator and determine the mediator’s remuneration.

Jury Waiver. To the maximum extent permitted by applicable law, each Party irrevocably waives any and all right to trial by jury in any legal proceeding arising out of or in connection with this Agreement or the relationship contemplated by it.

Notices. A notice must be in writing in English and may be (a) delivered personally; (b) given by an agent of the sender; (c) left at a Party’s current delivery address for notices; (d) sent by prepaid mail to a Party’s current postal address for notices; or (e) sent by email to a Party’s current email address for notices. Checkbox’s addresses for notices are those published at the foot of these Terms. Your addresses for notices are those set out in the applicable Order or, where the Order does not specify them, the contact details associated with your account. A notice is taken to have been given when left at the delivery address; if sent by prepaid mail, on the fourteenth day after posting; or if sent by email, when sent, unless the sender receives a notification of delivery failure within twenty-four (24) hours. You must keep the contact details associated with your account current.

Force Majeure. If performance of this Agreement or any obligation under it is prevented, restricted or interfered with by causes beyond either Party’s reasonable control (a “Force Majeure Event”), including fire, lightning strike, flood, earthquake, natural disaster, sabotage, pandemic, nuclear contamination, terrorism, war or civil riot, and the affected Party is unable to carry out its obligations and gives prompt written notice, then the affected Party’s obligations are suspended to the extent necessary. The affected Party must use reasonable efforts to remove the prevention, restriction or interference, or to limit its impact, and must continue to perform with reasonable dispatch when the event is removed. If a Force Majeure Event continues for more than sixty (60) consecutive days, either Party may terminate this Agreement on written notice, and Checkbox will refund any prepaid fees for Services not provided as at the effective date of termination.

Assignment. This Agreement is personal to the Parties. Neither Party may assign or deal with the whole or any part of its rights or obligations without the other Party’s prior written consent (not to be unreasonably withheld), provided that either Party may assign without consent to (a) an Affiliate, or (b) in connection with a merger, acquisition, reorganisation, or sale of all or substantially all of its assets, upon written notice to the other Party. Any purported assignment in breach of this Section is of no effect.

Waiver. Any failure or delay by a Party in exercising a power or right (wholly or partially) does not operate as a waiver or prevent that Party from exercising that or any other power or right. A waiver must be in writing.

Severability. If any provision (or part of it) is held unenforceable or invalid in any jurisdiction, it will be interpreted as narrowly as necessary to allow it to be enforceable or valid. If it cannot be so interpreted, it must be severed and the remaining provisions remain valid and enforceable.

Entire Agreement. These Terms, together with all Orders, Statements of Work, Appendices, the Service Level Agreement and the Data Processing Addendum, constitute the entire agreement between the Parties with respect to their subject matter and supersede all prior or contemporaneous negotiations, discussions or agreements, whether written or oral. You agree that acceptance under Section A.1 has the same legal effect as a handwritten signature, and that neither Party will contest the validity or enforceability of this Agreement on the ground that it was formed electronically. Where you and Checkbox have signed a negotiated master services agreement covering the Software, that agreement governs and these Terms do not apply to you.

Governing Law and Jurisdiction. The governing law and venue depend on the Checkbox entity with which you contract under Section 1.3. (a) Checkbox Software, Inc.: this Agreement is governed by and construed under the laws of the State of Delaware, without regard to its conflicts of law provisions, and each Party irrevocably and unconditionally submits to the exclusive jurisdiction of, and agrees that any legal proceeding arising out of or in connection with this Agreement will be brought in, the state courts operating in Delaware (or, if such court lacks subject matter jurisdiction, in any appropriate federal court within the State of Delaware). (b) Checkbox Operations Pty Ltd: this Agreement is governed by and construed under the laws of New South Wales, Australia, and each Party irrevocably and unconditionally submits to the exclusive jurisdiction of, and agrees that any legal proceeding arising out of or in connection with this Agreement will be brought in, the courts of New South Wales and the courts competent to determine appeals from those courts. In each case each Party irrevocably waives any objection or defence based upon lack of personal jurisdiction or venue, and the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

Relationship of the Parties. Nothing in this Agreement creates any relationship of agency, employment, joint venture or partnership. This Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns, and nothing in it is intended to confer upon any other party any legal or equitable right, benefit or remedy.

Interpretation. Each Party represents that it has had the opportunity to seek independent legal advice, and any rule of law or legal decision that would require interpretation of claimed ambiguities against the drafting party has no application and is expressly waived. “Including” and words of similar meaning mean “including, without limitation”. Headings are for convenience only and do not affect interpretation.