THIS AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF THE SERVICES. IF CUSTOMER REGISTERS FOR A FREE TRIAL OF THE SERVICES, THIS AGREEMENT SHALL ALSO GOVERN THAT FREE TRIAL. BY CHECKING THE BOX CONFIRMING THAT YOU HAVE VIEWED AND ACCEPTED THESE TERMS AND CONDITIONS, OR BY ACCESSING, DOWNLOADING, INSTALLING OR OTHERWISE USING ANY OF THE TRIAL OR SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS, DOWNLOAD, INSTALL, OR OTHERWISE USE ANY OF THE SERVICES. BY ACCEPTING THESE TERMS, YOU HEREBY WARRANT THAT YOU HAVE AUTHORITY TO SIGN AND EXECUTE THIS AGREEMENT ON BEHALF OF THE CUSTOMER WITH RESPECT TO THE MATTERS CONTAINED HEREIN.

This Terms of Service Agreement ("Agreement"), together with the DPA, any Order Form(s), annexes, schedules, exhibits, terms presented in the Services, and any documentation provided by Lambda X from time to time (collectively, "Documentation"), is an agreement between you ("Customer") and Lambda X PTY LTD. ("Lambda X") for the use of Lambda X’s Services. The provisions of this Agreement are as follows:

1. DEFINITIONS

"Customer Data" means any electronic data and information submitted by Customer or its Users in the course of accessing and using the Services.

"DPA" means the Data Processing Addendum located online at https://lambda-x.com.au/data-processing-addendum/, which is incorporated into and forms part of this Agreement, notwithstanding anything to the contrary in the DPA.

"Modes of Use" means use of Services in any and all of its expressions including but not limited to: (i) Access and use of Lambda X Software via its web application, Application Programming Interfaces ("API"), File Transfer Protocol ("FTP") services, first- or third-party integrations, plugins, and extensions; and (ii) Direct and indirect, as provided by Lambda X through other Lambda X portfolio products and services.

"Order Form" means a signed, mutually agreed ordering document, including but not limited to order form, and/or statement of work for the Service (defined below).

"Service(s)" means access to and use of any hosted software-as-a-service platform, Software, and Documentation, including any upgrades, modified versions, bug fixes, or updates thereto provided by Lambda X.

"Software" means any software distributed by Lambda X to Customer under this Agreement for use in connection with a Service, including any APIs and applications (but excluding any hosted software used to provide the Services).

2. ACCESS AND OBLIGATIONS

Subject to the terms of this Agreement, during the Service Term, Lambda X hereby grants to Customer a limited, non-exclusive, non-sublicensable (other than to third-party Users acting on its behalf), and non-transferrable right to: (i) install any Software in accordance with the Documentation and use such Software solely in connection with the Service; (ii) use the Service in accordance with Documentation solely for Customer’s internal business purposes; and (iii) make a limited number of copies of the Documentation for internal use and only as necessary to support Customer’s use of the Services, provided that all copies retain Lambda X’s original proprietary legends and logos.

If the Services provide Customer with the ability to create Reports, Customer shall own the Reports and may use them solely for Customer’s internal business purposes.

Customer’s Affiliates may also access and use the Services for the Service Term pursuant to the Agreement, provided that the combined use of the Services hereunder by Customer and its Affiliates shall in no event exceed the terms under each applicable Order Form. All references to "Customer" in this Agreement shall include all Users and any such Affiliate.

Customer may accept or decline to use Beta Services as presented in the Services in its sole discretion. Beta Services are for evaluation purposes only, and Customer agrees to be bound by any additional terms applicable to the Beta Services as provided by Lambda X. Lambda X provides no warranties for any of the Beta Services, and Lambda X has no obligation to correct or repair any Beta Services. Lambda X reserves the right to fully or partially discontinue Beta Services at any time and for any reason, temporarily or permanently, with or without notice. Lambda X shall have no liability to Customer or any third party for any harm or damage arising out of or in connection with any of the Beta Services.

Customer shall not directly or indirectly (including through any third party): (i) Modify, adapt, translate, decompile, disassemble, reverse engineer, copy, reproduce, duplicate, incorporate into or with other software, create a derivative work or an improvement of, or attempt to reconstruct, identify, or discover the source code, underlying ideas or algorithms of any part of the Services; (ii) Impact the quality of other users’ experience when using Lambda X products and services; (iii) Introduce malicious programs, viruses, malware, or other software or mechanisms into the Services, including robots, spiders, scrapers, or any software designed to interfere with its proper operation or that accesses (or attempts to access) a computer, network, or data without authorization; (iv) Attempt to circumvent authentication or security of any host, network, or account or use or permit others to use any security or testing tools in order to probe, scan, or attempt to penetrate or ascertain the security of the Services; (v) Submit any Customer Data to the Service that infringes or misappropriates the intellectual property rights of any third party or violates the privacy or other proprietary right of any third party; (vi) Sell, sublease, or resell any aspect of the Service or otherwise make the Service available for any use other than the Customer’s internal business purposes or to any third party for a fee.

Customer is responsible for its Users’ performance under this Agreement and for all acts and omissions with respect to access or use of the Services which occur via Customer’s account. Customer (i) will protect any login credentials used to access any Services from unauthorized access, use, and disclosure, and (ii) will not share any such credentials with any third party, share login credentials across multiple Users, enable multiple Users to access the Services through a single User account, or falsify User information, impersonate any person or entity, or provide misleading information about itself or a User. Customer shall promptly notify Lambda X in writing of any unauthorized access to or use of any of its accounts or credentials. For the avoidance of doubt, Lambda X cannot and shall not be liable for any loss, damage, or other liability arising from Customer’s failure to comply with these requirements. Customer is responsible for the accuracy, quality, integrity, and legality of Customer Data. Customer shall comply with all applicable laws, rules, orders, and regulations, including those applicable to processing of Customer Data via the Services. Customer represents and warrants that it has obtained any and all applicable and necessary authorizations to process the Customer Data in the Services. Lambda X does not assume any responsibility for or undertake to verify the accuracy or completeness of the Customer Data. Customer is solely responsible for backing up its data. Lambda X shall not have a duty to back up data or to restore data that is lost in the course of the provision of Services.

Customer may install or otherwise elect to use Lambda X-approved third-party services with and as permitted by the Services ("Third-Party Services") (e.g. picture archiving and communication systems). Any use by Customer of Third-Party Services is solely the responsibility of Customer and the applicable Third-Party Services provider and Lambda X shall in no way be responsible for the performance of the Third-Party Services. Customer acknowledges that providers of such Third-Party Services may have access to Customer Data in connection with the interoperation and support of Third-Party Services with the Services. To the extent Customer authorizes the access or transmission of Customer Data through a Third-Party Service, Lambda X shall not be responsible for any act or omission on the part of such Third-Party Services provider or its service. Customer acknowledges that Lambda X is not responsible for any performance issues to the extent caused by Third-Party Services, including failure to connect with such Third-Party Services.

Lambda X shall not be responsible or liable for any failure in the Services to the extent resulting from or attributable to (i) Customer Data (or quality thereof) as uploaded into the Services or otherwise provided to Lambda X; (ii) any products, software, equipment, or services used by Customer (other than the Service); or (iii) Customer’s negligence, willful misconduct, breach of this Agreement, or other unauthorized access or use of the Service.

3. PRICE, PAYMENT, AND PROMOTION

The Services are available at the then-current rate. Customer shall pay all applicable fees when due as invoiced and, if fees are being paid via credit card or other electronic means, Customer authorizes Lambda X to charge fees using Customer’s selected payment method. All fees are exclusive of and do not include any taxes, duties, or similar charges imposed by any government. Customer will pay or reimburse Lambda X for all federal, state, dominion, provincial, or local sales, VAT, use, personal property, import, export, excise or other taxes, fees, or duties arising out of this Agreement, or the transactions contemplated by this Agreement, other than taxes based upon Lambda X’s net income. Any Fees not paid when due shall accrue interest at the rate of 1.5% per month or the maximum rate permitted by law, whichever is lower.

4. INTELLECTUAL PROPERTY RIGHTS

As between the Parties, all intellectual property rights in and to the Services, including all copyright, trade secret, patent, trademark, and other proprietary or industrial property rights in and to the Services and any improvements thereto, are the sole and exclusive property of Lambda X. Customer shall not contest or challenge or take any action inconsistent with or that may damage or impair Lambda X’s ownership or intellectual property rights in and to the Services. Customer hereby grants Lambda X a non-exclusive, perpetual, worldwide, irrevocable, transferable, sublicensable, and fully paid-up license to use any suggestions, ideas, enhancement requests, feedback, or recommendations provided by Customer, its Affiliates, or its Users relating to Lambda X or any Service ("Feedback"). Any intellectual property rights which may be created as a result of Lambda X using or acting upon such Feedback shall vest in and remain the property of Lambda X. Customer does not acquire any rights, express or implied, hereunder with respect to the Services or otherwise other than those rights expressly granted under this Agreement.

As between the Parties, Customer exclusively owns all right, title and interest in and to all Customer Data. Customer hereby grants to Lambda X the non-exclusive, royalty-free right to access, use, copy, distribute, perform, display and process Customer Data during the Service Term solely: (a) to provide and improve the Services, including to prevent or address service or technical problems; (b) to perform other activities at Customer’s or Users’ direction or request; or (c) as compelled by law. Each Party will comply with its obligations under the DPA and under applicable law in connection with its processing of Customer Data.

Customer grants Lambda X a perpetual, irrevocable, non-exclusive right to generate de-identified and aggregated data from Customer Data and to use such de-identified and aggregated data to provide and improve its products and services, provided, however that Lambda X does not (i) identify the source of any such data, or (ii) disclose any such data to any third party other than to its subcontractors. The rights granted to Lambda X under this Section 5 may be sublicensed to subcontractors or affiliates that perform work on behalf of Lambda X and Lambda X is responsible for its subcontractors’ and affiliates’ performance hereunder.

The Services and Documentation, including, without limitation, trade secrets, performance data, design, features, layouts, configurations, processes, formulae, specifications, programs, test results, technical know-how, methods and procedures of operation and other information relating to or obtained therefrom, by use, examination or otherwise are the valuable trade secrets of Lambda X, and shall be deemed to be confidential information of Lambda X ("Confidential Information"). Customer shall use the same degree of care to protect the Confidential Information from improper use or non-disclosure as Customer would use with respect to Customer’s own information of like importance which Customer does not desire to have published or disseminated, but in any event no less than reasonable care. Customer will not use any Confidential Information for any purpose not expressly authorized under this Agreement and will not disclose to third parties any such Confidential Information.

Customer shall promptly notify Lambda X if Customer becomes aware of any infringement of the Lambda X’s intellectual property rights in the Services and fully cooperate with Lambda X in any legal action taken by Lambda X to enforce its intellectual property rights.

5. DISCLAIMER OF WARRANTY

LAMBDA X MAKES NO WARRANTY OR CONDITION OF ANY KIND WHATSOEVER, EXPRESSED OR IMPLIED REGARDING THE SERVICES. ALL IMPLIED OR STATUTORY WARRANTIES OR TERMS & CONDITIONS, INCLUDING THOSE OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED. SERVICES ARE PROVIDED AND LICENSED ON AN "AS IS" BASIS WITH NO WARRANTY OR REPRESENTATION OF ANY KIND. LAMBDA X DOES NOT WARRANT THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL DEFECTS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR OUR AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF OUR OBLIGATIONS HEREUNDER.

6. Terms and Termination

This Agreement is effective upon Customer’s acceptance and shall continue until (i) terminated pursuant to this Section 6 or (ii) upon the expiration of a service term. For Customers with an Order Form, unless otherwise provided in the Order Form, each initial term is twelve (12) months and shall automatically renew for successive additional periods of twelve (12) months, unless either party provides written notice of non-renewal at least sixty (60) days prior to the end of the then current service term.

Without limiting any other rights or remedies available to Lambda X, Lambda X has the right to terminate this Agreement immediately and without notice to Customer, if: (i) Customer is in breach or default of any of its obligations under this Agreement and such breach or default continues unrectified for ten (10) days following the provision of written notice of such breach or default to Customer; (ii) Customer voluntarily enters into proceedings in bankruptcy or insolvency, makes an assignment for the benefit of its creditors, is adjudged to be bankrupt or insolvent, a petition is filed against Customer under a bankruptcy law, corporate reorganization law, or any other law for the relief of debtors or similar law and such petition is not discharged with sixty (60) days after its filing, or a receiver, trustee or similar person is appointed with respect to Customer’s assets; or (iii) Lambda X has not received any payment when due either under this Agreement or otherwise.

Upon termination of this Agreement for any reason whatsoever, Customer must immediately cease using the Service and, if applicable, disconnect or disable any application that provides access to the Service under any Mode of Use. In addition, Lambda X reserves the right to terminate access to the Service under any Mode of Use as part of termination or expiration. It is Customer’s responsibility to remove any Software from Customer’s properties. Lambda X shall have no responsibility for any data that is sent to Lambda X via Software that Customer has failed to remove.

Suspension/Termination of Services. Without limitation of its other rights, Lambda X may suspend or terminate Customer’s access to the Services for Customer’s failure to pay any Fees when due if Customer has failed to cure such non-payment after Lambda X provides Customer with ten (10) days’ notice of such non-payment. Lambda X may also suspend Customer’s access to the Services if it deems reasonably necessary to prevent harm to the Services or its or its other customers’ systems, data or property. In the event that Services are suspended, Customer shall continue to be charged applicable Fees for the Service during any period of suspension.

The termination of this Agreement will not affect the survival and enforceability of any provisions of this Agreement which are expressly or impliedly intended to survive and remain in force after such termination or expiration of this Agreement.

7. LIMITATION OF LIABILITY

IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR OTHER DAMAGES (INCLUDING DATA LOSS OR CORRUPTION, BUSINESS INTERRUPTION, LOST BUSINESS OR LOST PROFITS) EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN NO EVENT SHALL LAMBDA X’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO LAMBDA X IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT THAT GAVE RISE TO THE CLAIM.

No action arising out of or relating to this Agreement, or Lambda X’s obligations hereunder, regardless of form, may be brought by Customer more than twelve (12) months after the facts giving rise to the cause of action are known to Customer.

8. INDEMNIFICATION

Customer shall indemnify and hold harmless Lambda X from and against all losses, claims, damages or other causes of any nature or kind whatsoever (including reasonable attorney’s fees) arising directly or indirectly out of third-party claims concerning:

Customer’s breach of the Agreement;

Disclosure of Lambda X’s Confidential Information;

Customer’s use of the Service or Customer’s data entered into the Service; and

The negligence or intentional misconduct of Customer (including Customer’s officers, employees, agents or contractors).

9. TERMS APPLICABLE TO TRIAL CUSTOMERS

Term and Termination. If Customer registers for a trial subscription of the Services, Lambda X will make the Services available to the Customer on a trial basis until the earliest of: (i) the end of the trial period for which the Customer used the Services (the trial period shall be determined by Lambda X in its sole and exclusive discretion); (ii) termination of Customer’s access to or use of the Services in its sole and exclusive discretion; or (iii) Customer’s purchase of the Services (at which time this Agreement shall continue to govern).

Evaluation Purposes. Where the Customer registers for a Trial of the Services, the Services are available on a limited basis solely for the purpose of Customer’s internal business evaluation purposes.

Disclaimer of Warranties. THE TRIAL OF THE SERVICES IS PROVIDED BY LAMBDA X TO A TRIAL OFFERING CUSTOMER ON AN "AS IS" BASIS, AND LAMBDA X SPECIFICALLY DISCLAIMS ALL WARRANTIES, TERMS, REPRESENTATIONS AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY WARRANTIES, TERMS, REPRESENTATIONS AND CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT.

10. GENERAL PROVISIONS

Governing Law and Jurisdiction. This Agreement is exclusively governed by the laws of South Australia, excluding the application of its conflict of laws rules. This Agreement is not governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded. The parties hereby consent to the exclusive jurisdiction of the state and federal courts located in the State of South Australia in any action arising out of or relating to the Agreement.

Order of Precedence. In the event of any conflict between the terms of the Order Form and of the Agreement(s), the Order Form shall govern.

Entire Agreement. This Agreement sets forth the entire agreement between the parties hereto pertaining to the subject matter hereof and supersedes all prior agreements. There are not and shall not be any oral statements, representations, warranties, undertakings, or agreements between the parties. Lambda X may elect to change or supplement the terms of this Agreement from time to time, at its sole discretion. Within thirty (30) business days of posting changes to this Agreement, they will be binding on Customer. If Customer does not agree with the changes, Customer should immediately discontinue using the Service. If Customer continues using the Service after such thirty (30) business day period, Customer will be deemed to have accepted the changes to the terms of this Agreement. This Agreement is drafted in the English language and available in other languages. The English language version of this Agreement and any notice or other document relating to this Agreement shall prevail if there is a conflict.

Severability. If any part of this Agreement is found void and unenforceable, it will not affect the validity of the balance of the Agreement, which shall remain valid and enforceable according to its terms.

Assignment. This Agreement may not be assigned by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld, except (i) Customer may not assign this Agreement to a competitor of Lambda X (in Lambda X’s sole discretion and (ii) no consent shall be required should either party undergo a change of control. This Agreement shall be binding upon and inure to the benefit of the successors and assignees of Lambda X or Customer.

Publicity. Lambda X shall be authorized to identify Customer as a customer of Lambda X in public relations and marketing materials.

Force Majeure. Lambda X will have no obligation to perform its obligations hereunder to the extent and for the period that Lambda X is prevented from doing so by any cause beyond its reasonable control.

Trademark or Copyright Infringement Policy respects intellectual property of others and we will investigate each notice of alleged trademark or copyright infringement that is provided to us. If you believe that your trademark or copyrighted work has been used or displayed in a way that constitutes infringement, please contact us at [email protected] with "Trademark Infringement" (as applicable) in the subject line and please provide us with all of the following information:

LAST UPDATED: 1 JAN 2024