1.1

“Agreement” means this MSA together with all Orders, which are hereby incorporated by reference, and all other terms and conditions have been incorporated herein by reference.

1.2

“API” means the application programming interface for sending data to or receiving data from the Service and any software libraries made available to Customer for accessing the foregoing.

1.3

“Octane Technology” means, collectively, the Service, API, SDK, Dashboard, Documentation, and any other services to be provided pursuant to the Agreement.

1.4

“Dashboard” means the web based user interface for Customer to access portions of the Service.

1.5

“Documentation” means any user instructions, manuals, on-line help files, or other materials that are provided by Octane in connection with the SDK, API, or Service.

1.6

“Initial Term” means, with respect to an Order, the period of time commencing on the Effective Date set forth therein and continuing for the duration of the initial term set forth in that Order.

1.7.

“Order” means the Initial Order to which this MSA is attached or a mutually agreed and executed order form referencing the Agreement and setting forth the Service or Professional Services to be provided and any additional terms applicable to the particular SDK, API, and Service to be provided pursuant to the Agreement.

1.8.

“Professional Services” means the implementation and training services, if any, identified in an Order.

1.9.

“SDK” means the software development kit for Users to submit data to the Service that is capable of being embedded into and integrated with Customer’s web based platforms and mobile applications.

1.10.

“Service” means Octane’s proprietary Software-as-a-Service platform, for identity verification to be provided under an Order, including Customer’s access to the Dashboard.

1.11.

“Submitted Data” means any data pertaining to Users that is submitted by Customer or Users to the Service via the SDK or API.

1.12.

“Users” means Customer’s employee or contractor personnel authorized by Customer to access and use the Service as set forth under this Agreement.

2.1

Service. Subject to Customer’s ongoing compliance with the terms of the Agreement, Octane hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable, internal right commencing on the Effective Date set forth on the applicable Order and continuing for the remainder of the applicable Order Term (as defined below) to only access and use, and allow Users to access and use, the Service and Dashboard solely for Customer’s internal business purposes in connection with the Services subject to any limitations set forth in the Order.

2.2

API and SDK License. Subject to Customer’s ongoing compliance with the terms of the Agreement (including the terms and conditions of the applicable Order and timely payment of all applicable Fees), Octane hereby grants Customer a non-exclusive, non-transferable, non-sublicensable, internal use only license, during the period of time commencing on the Effective Date set forth in an Order and continuing for the duration of the applicable Order Term to: (i) Integrate and embed the SDK into Customer’s web based platforms, (ii) use the API to submit to and obtain information from the Service in accordance with any associated Documentation solely as necessary in connection with the use of the Service for the analysis and collection of usage data of Customer’s platform; (iii) make only those copies of the API and SDK absolutely necessary to exercise Customer’s rights under the foregoing (i) and (ii); and (iv) make only those copies of the Documentation reasonably necessary to exercise Customer’s rights hereunder and use any Documentation in connection with Customer’s use of the Service, SDK, and API.

2.3

Professional Services. Subject to Customer’s timely payment of all applicable Fees, Octane will use commercially reasonable efforts to provide to Customer the Professional Services, if any, set forth in the Order. Octane will own and retain all right, title, and interest, including all intellectual property and proprietary rights, in and to any work product or deliverables created in connection with the Professional Services. Nothing in the Agreement or any attachment hereto shall be understood to prevent Octane from developing similar work product or deliverables for other customers.

2.4

Restrictions. Customer shall not, directly or indirectly, and shall not authorize any third party to: (i) decompile, disassemble, reverse engineer, or otherwise attempt to derive the source code, algorithms, or associated know-how of the Octane Technology or results provided in connection with Professional Services (except to the extent expressly made available to Customer by Octane or permitted by applicable law notwithstanding this restriction); (ii) write or develop any program based upon the Octane Technology or any portion of any of the foregoing, or otherwise use the Octane Technology in any manner for the purpose of developing, distributing or making available products or services that compete with the Octane Technology; (iii) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in the Octane Technology or any rights to any of the foregoing; (iv) permit the Octane Technology to be accessed or used by any persons other than Users accessing or using the Octane Technology in accordance with the Agreement; (v) alter or remove any trademarks or proprietary notices contained in or on the Octane Technology; (vi) circumvent or otherwise interfere with any authentication or security measures of the Octane Technology or otherwise interfere with or disrupt the integrity or performance of the foregoing; or (vii) otherwise use the Octane Technology except as expressly permitted hereunder. Customer represents and warrants that it has all rights, authorizations, and consents to provide Submitted Data to Octane and Customer has all rights, authorizations, and consents to grant Octane the rights and permissions to use and process the Submitted Data as contemplated by this Agreement. Customer acknowledges that Octane may, but is under no obligation to monitor Customer’s use of the Service. Octane may suspend Customer’s, or a User’s access to the Service for any period during which Customer or/and User is, or Octane has a reasonable basis for alleging Customer or a User is, in noncompliance with the foregoing.

2.5

Service Levels and Support. Commencing on the applicable Effective Date and continuing for the remainder of the applicable Order Term, Octane will make the Service available in accordance with and provide the support set forth in the Service Level Agreement located in Exhibit A (“SLA”). Customer acknowledges and agrees that Customer’s sole and exclusive remedy and Octane’s entire liability arising out of any failure to meet any uptime commitments set forth in the SLA are those remedies set forth in the SLA.

5.1

Term. The Agreement will start on the Effective Date set forth in the applicable Order and will continue until terminated in accordance with the Agreement (the “Term”). Unless otherwise stated in an Order, each Order will continue until completion of the Initial Term, and upon expiration of the Initial Term, shall automatically renew, except as expressly set forth on the Order, for consecutive periods of the same duration as the Initial Term (each such period with respect to that Order, a “Renewal Term” and all Renewal Terms of an Order together with the Initial Term of that Order, the “Order Term”) at Octane’s then-current fees for such Services unless either party provides notice of non-renewal at least 30 days prior to the end of the then-current Initial Term or Renewal Term, or if Customer cancels its subscription pursuant to Section 5.2. Octane may increase the fees of its Services, effective at the start of the then-upcoming renewal term, by providing written notice via email or its Services of such increase to Customer at least 60 days prior to the end of the then-current term.

5.2

Termination. Either party may terminate the Agreement by written notice: (i) if no Orders have been in effect between the parties for a period of 30 consecutive days; (ii) the other party is in material breach of the Agreement, where such material breach is not cured within 30 calendar days after written notice of such breach; or (iii) if: (a) the other party ceases to carry on its business; (b) a receiver or similar officer is appointed for the other party’s business, property, affairs or revenues and such proceedings continue for 45 calendar days; (c) the other party becomes insolvent, admits in writing its inability to pay debts generally as they come due, is adjudicated bankrupt, or enters composition proceedings, makes an assignment for the benefit of its creditors or another arrangement of similar import; or (d) proceedings under bankruptcy or insolvency laws are commenced by or against the other party and are not dismissed within 45 calendar days. Notwithstanding anything to the contrary herein, if Customer fails to pay any amounts owed to Octane within 15 calendar days after written notice of nonpayment of any amounts owed to Octane, which may be provided any time after any amount becomes past due, Octane may immediately terminate this Agreement or suspend Customer’s access to the Service. For the avoidance of doubt, Customer’s noncompliance with Section 2.4 shall be deemed a material breach of the Agreement.

5.3

Effect of Termination. Upon the effective date of the expiration or termination of the Agreement for any reason: (i) Customer’s access to the Service, and the licenses granted to Customer hereunder will automatically terminate; (ii) all outstanding payment obligations of Customer will become due and payable immediately; and (iii) Customer shall immediately return, or at Octane’s request destroy and certify the destruction of any tangible embodiments of Octane’s Confidential Information, including all copies of the SDK andAPI. The following provisions will survive the expiration or termination of the Agreement for any reason: Sections 1, 2.4, 3, 4, 5.3, and 6 through 10.

6.1

Definition. “Confidential Information” means: (i) any information disclosed, directly or indirectly, by or on behalf of one party (“Disclosing Party”) to the other party (“Receiving Party”) pursuant to the Agreement that is designated as “confidential,” or in some other manner to indicate its confidential nature; and (ii) any information that otherwise should reasonably be expected to be treated in a confidential manner based on the circumstances of its disclosure or the nature of the information itself. Without limiting the foregoing, the Octane Technology, the functionality and performance of the Octane Technology, including any metrics pertaining thereto, are the Confidential Information of Octane, the Submitted Data is the Confidential Information of Customer, and the terms (but not the existence) of the Agreement will be kept confidential as each other party’s Confidential Information. However, Confidential Information does not include any information that: (a) is or becomes generally known and available to the public through no act of the Receiving Party; (b) was already in the Receiving Party’s possession without a duty of confidentiality owed to the Disclosing Party at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s contemporaneous records; (c) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure; or (d) is independently developed by the Receiving Party without breach of an obligation owed to the Disclosing Party.

6.2

Use; Maintenance. Neither party shall use the Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under the Agreement. Neither party shall disclose, or permit to be disclosed, either directly or indirectly, any Confidential Information of the other party, except: (i) to its advisors, or prospective investors or purchasers, in each case subject to written obligations of confidentiality, or (ii) where the Receiving Party becomes legally compelled to disclose Confidential Information, notwithstanding the Receiving Party’s having given the Disclosing Party prior notice of such legally compelled disclosure and a reasonable opportunity to seek a protective order or other confidential treatment for such Confidential information (if permitted by applicable law). Each party will take reasonable measures and care to protect the secrecy of, and avoid disclosure and unauthorized use of the other party’s Confidential Information, and will take at least those measures taken to protect its own most highly confidential information.

6.3

Submitted Data. Customer agrees that Octane may use Submitted Data as necessary to make available the Service, perform its obligations hereunder, and improve the Service, including, without limitation, performing any required, usual, appropriate, or acceptable activities relating to the Service, such as: (i) providing or supporting the use of the Service, performing Professional Services, and carrying out the business of which the Service is a part; (ii) training Octane’s machine learning algorithms and improving Octane’s fraud detection techniques; (iii) carrying out any benefits, rights, and obligations relating to the Service; (iv) maintaining records relating to the Service; and (v) complying with any legal or self-regulatory obligations relating to the Service. Customer agrees that Octane may also use and exploit in any manner on a worldwide, irrevocable, perpetual, royalty-free basis, any: (a) aggregated non-personally identifiable information related to any usage of the Service to operate and improve Octane’s products and services; and (b) suggestions, requests and feedback provided by or on behalf of Customer regarding the Octane Technology. Customer acknowledges and agrees that, notwithstanding anything to the contrary herein, Octane may, in its sole discretion, erase or delete from the Service any Submitted Data that it reasonably believes is illegal, harmful, objectionable, lewd, not related to the function of or necessary for the use of the Service, or that Octane determines may, as a result of Octane possessing such data, harm Octane’s business or reputation.

7.1

By Octane. Octane shall: (i) defend, or at its option settle, any claim brought against Customer by a third party to the extent it alleges (a) that the Octane Technology or Customer’s use, as authorized in the Agreement, of the Service during the applicable Order Term constitutes a direct infringement of U.S. copyrights or trade secrets of any third party (an “Infringement Claim”) or (b) that there has been any unauthorized disclosure of or access to Submitted Data due to the gross negligence or willful misconduct of Octane (a “Data Claim” and a Data Claim or an Infringement Claim, a “Claim”); and (ii) pay any damages awarded in a final judgment (or amounts agreed in a monetary settlement) in any such Claim defended by Octane; provided that Customer provides Octane (I) prompt written notice of, (II) sole control over the defense and settlement of, and (III) all information and assistance reasonably requested by Octane in connection with the defense or settlement of, any such Claim. If any Infringement Claim is brought or threatened, Octane may, at its sole option and expense: (w) procure for Customer the right to continue to use the Octane Technology; (x) modify the Octane Technology, as applicable, to make it non-infringing; (y) replace the affected aspect of the Octane Technology with non-infringing technology having substantially similar capabilities; or (z) if none of the foregoing is commercially practicable, terminate the Agreement. Notwithstanding the foregoing, Octane will have no liability to Customer: (1) for any use of the Octane Technology in combination with software, products or services not provided by Octane; to the extent that the Octane Technology would not be infringing but for such combination or modification; (2) for Customer’s failure to use the Octane Technology in accordance with the Agreement; or (3) for any claims related to Submitted Data.

7.2

Disclaimer. SECTION 7.1 STATES THE ENTIRE LIABILITY OF OCTANE, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY OCTANE, THE OCTANE TECHNOLOGY, OR ANY PART THEREOF.

7.3

By Customer. Notwithstanding anything to the contrary in Section 7.1, Customer shall defend or, at its option, settle, any claim brought against Octane by a third party: (i) alleging that the use by or on behalf of Octane of the Submitted Data in accordance with the Agreement violates a third party’s rights; (ii) arising out of any unauthorized access or use of the Service by Customer or any Users or any third party utilizing any access credentials of Customer or any Users; (iii) arising out of the use of the Service in violation or in connection with a violation of applicable law; (iv) arising out of the operation of Customer’s business; or (v) arising out of Customer’s or Users’ use of or reliance on information provided to Customer via the Service or by Octane, including any allegations that any use of such information by Customer or Users infringes or misappropriates any third party’s rights or violates any laws. Customer will indemnify Octane for all costs, liabilities, damages, and expenses incurred by Octane (or the amount of any settlement entered into or approved in writing by Customer) with respect to such a claim. Octane shall provide Customer with: (a) prompt written notice of; (b) sole control over the defense and settlement of; and (c) all information and assistance reasonably requested by Customer in connection with the defense or settlement of, any such claim.

10.1

Assignment. Neither party may assign the Agreement or any of its rights or obligations under the Agreement without the prior written consent of the other party, except that Octane may assign the Agreement without the consent of Customer as part of a corporate reorganization, or upon a change of control, consolidation, merger, sale of all or substantially all of its business or assets related to the Agreement, or a similar transaction or series of transactions. Subject to the foregoing, the Agreement will be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

10.2

Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under the Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, pandemic, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure or degradation of the Internet. The delayed party shall give the other party notice of such cause and shall use its commercially reasonable efforts to correct such failure or delay in performance.

10.3

Governing Law. The Agreement shall be governed by and construed under the laws of the State of New York without reference to conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Subject first to Section 10.6, if a lawsuit or court proceeding is permitted under the Agreement, the parties will be subject to the exclusive jurisdiction of the state and federal courts located in New York County, New York, and the parties hereby agree and consent to the exclusive jurisdiction and venue of such courts.

10.4

Publicity. Octane may use Customer’s name as a reference for marketing or promotional purposes on Octane’s website and in other communication with existing or potential Octane customers; subject to Customer’s prior approval of any such use.

10.5

Government Rights. Octane provides the Octane Technology, including any related software, data, and technology, for ultimate government end use solely in accordance with the following: The Service, API, and SDK shall constitute “commercial” computer software. Government technical data and software rights related to the Service, SDK and API include only those rights customarily provided to the public as defined in the Agreement. These customary commercial licenses are provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Octane to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.

10.6

Arbitration. The parties agree to resolve all disputes arising under or in connection with the Agreement through binding arbitration. A party who intends to seek arbitration must first send a written notice of the dispute to the other party. The parties will use good faith efforts to resolve the dispute directly, but if the parties do not reach an agreement to do so within 30 days after the notice is received, either party may commence an arbitration proceeding. The arbitration will be conducted in accordance with the applicable rules of the American Arbitration Association (“AAA”). The arbitration will be conducted in English in New York, New York, USA. If the parties do not agree on an arbitrator, the arbitrator will be selected in accordance with the applicable rules of the AAA for the appointment of an arbitrator. The selection of an arbitrator under the rules of the AAA will be final and binding on the parties. The arbitrator must be independent of the parties. The arbitrator’s decision will be final and binding on both parties, and the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The costs and expenses of the arbitration will be shared equally by both parties; however, if the arbitrator finds that either the substance of the claim or the relief sought in arbitration is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. Notwithstanding the foregoing, this Section 10.6 will not prohibit either party from: (i) bringing an individual action in small claims court; (ii) seeking injunctive or other equitable relief in a court of competent jurisdiction; (iii) pursuing an enforcement action through the applicable federal, state, or local agency if that action is available; or (iv) filing suit in a court of law to address an intellectual property infringement or misappropriation claim. If this Section 10.6 is found to be unenforceable, the parties agree that the exclusive jurisdiction and venue described in Section 10.3 will govern any action arising out of or related to the Agreement.

10.7.

Miscellaneous. In the event of a conflict between this MSA and any Order, the terms and conditions of this MSA will prevail unless otherwise expressly stated in the Order. The Agreement is the sole agreement of the parties concerning the subject matter hereof, and supersedes all prior agreements and understandings with respect to said subject matter. Customer may not subcontract or delegate any rights or obligations granted to it under the Agreement to any third parties, including its consultants or contractors, without the prior written consent of Octane. Customer agrees that it is solely responsible for any liability arising out of Users’ access and use of the Octane Technology in violation of this Agreement. No terms of any purchase order, acknowledgement, or other form provided by Customer in connection with an Order will modify the Agreement, regardless of any failure of Octane to object to such terms. Any ambiguity in the Agreement shall be interpreted without regard to which party drafted the Agreement or any part thereof. There are no third party beneficiaries to the Agreement. The Agreement may only be amended by a writing signed by both parties. The Agreement may be executed in counterparts. The headings in the Agreement are inserted for convenience and are not intended to affect the interpretation of the Agreement. Any required notice shall be given in writing by customary means with receipt confirmed at the address of each party set forth above, or to such other address as either party may substitute by written notice to the other, or by email. Notices will be deemed to have been given at the time of actual delivery in person, 1 day after delivery to an overnight courier service, 3 days after deposit in certified mail, or upon sending of an email. The relationship between the parties shall be that of independent contractors. Octane may use subcontractors or otherwise delegate aspects of its performance under the Agreement; provided that Octane shall remain responsible hereunder for any such subcontractor’s performance. Waiver of any term of the Agreement or forbearance to enforce any term by either party shall not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of the Agreement. Any provision found to be unlawful, unenforceable or void shall be severed from the remainder of the Agreement and the remainder of the Agreement will continue in full force and effect without said provision. The parties agree to comply with all applicable export control laws and regulations related to their performance of the Agreement.