Developer Terms of Service

These Standard Terms of Service (these “Standard Terms”) are entered into by and between Digital Infrastructure Inc., a Delaware corporation (“Digital Infrastructure”), and the Customer (“Customer”, “you” or “your”) identified in the initial Order Form into which this MSA is incorporated (the “Initial Order Form”) as of the Effective Date thereof. By entering into any Order Form, accessing our API, or otherwise using any of our Services, you represent that (i) you have read, understand, and agree to be bound by this Agreement and (ii) you have the authority to enter into this Agreement.

1. Definitions

1.1. “Agreement” means these Standard Terms together with all Order Forms, 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 Licensed Data from the Service and any software libraries made available to Customer for accessing the foregoing.

1.3. “Authorized Purpose” means the access and use of Licensed Data in accordance with the terms of this Agreement.

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

1.5. “DIMO” means the decentralized network of device data maintained by Digital Infrastructure.

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

1.7. “Effective Date” means the effective date of the Order Form into which these Standard Terms are incorporated.

1.8. “Employee Users” means Customer’s employee or contractor personnel authorized by Customer to access and use the Service in connection with the Authorized Purpose.

1.9. “Initial Term” means, with respect to an Order Form, 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 Form.

1.10. “Licensed Data” means any data made available by Digital Infrastructure to Customer through the API, including without limitation data related to one or more Vehicles.

1.11. “Order Form” means the Initial Order Form into which this MSA is incorporated (and any successors thereto) referencing the Agreement and setting forth (i) the Service or Professional Services to be provided, and (ii) any additional terms applicable to the particular SDK, API, and Service to be provided pursuant to the Agreement.

1.12. “Party” means Customer or Digital Infrastructure, as applicable (and, together, the “Parties”).

1.13. “Professional Services” means the specific development, implementation, and/or training services, if any, identified in an Order Form and made available to Customer subject to a separate written addendum (the “Professional Services Addendum”).

1.14. “SDK” means any software development kit made available by Digital Infrastructure in connection with the API.

1.15. “Service” means Digital Infrastructure’s proprietary platform, as accessed through the API, that enables Customer to query certain proprietary data related to Vehicles.

1.16. “Vehicle” means an automobile for which the owner has opted into connecting to DIMO and sharing such automobile’s data with Customer and other DIMO ecosystem participants, as applicable.

2. Services; API and SDK

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

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 Form and timely payment of all applicable Fees), Digital Infrastructure 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 Form and continuing for the duration of the applicable Order Term to: (i) integrate and embed the SDK as necessary, (ii) use the API to submit data to and obtain Licensed Data and other information from the Service in accordance with any associated Documentation solely as necessary in connection with the use of the Service for the Authorized Purpose; (iii) make only those copies of the API and SDK 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, Digital Infrastructure will use commercially reasonable efforts to provide to Customer the Professional Services, if any, set forth in the Order Form. Digital Infrastructure 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 (including without limitation any Professional Services Addendum) shall be understood to prevent Digital Infrastructure 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 Digital Infrastructure Technology or results provided in connection with Professional Services (except to the extent expressly made available to Customer by Digital Infrastructure or permitted by applicable law notwithstanding this restriction); (ii) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in the Digital Infrastructure Technology or any rights to any of the foregoing; (iii) permit the Digital Infrastructure Technology to be accessed or used by any persons other than Employee Users accessing or using the Digital Infrastructure Technology in accordance with the Agreement; (iv) alter or remove any trademarks or proprietary notices contained in or on the Digital Infrastructure Technology; (v) circumvent or otherwise interfere with any authentication or security measures of the Digital Infrastructure Technology or otherwise interfere with or disrupt the integrity or performance of the foregoing; or (vi) otherwise use the Digital Infrastructure Technology for any purpose other than the Authorized Purpose or except as expressly permitted hereunder. Customer represents and warrants that it and all Employee Users will, at all times during the Term, comply with all applicable laws in connection with its use of the Digital Infrastructure Technology. Digital Infrastructure may suspend Customer’s, or an Employee User’s access to the Service for any period during which Customer or an Employee User is, or Digital Infrastructure has a reasonable basis for alleging Customer or an Employee User is, in noncompliance with the foregoing. Customer must limit Customer’s use of the Service in accordance with any limitations indicated in the Order Form, and Customer acknowledges and agrees if Customer uses the Service in excess of the limitations indicated in an Order Form, Digital Infrastructure reserves the right to (a) limit Customer’s use of the Services, and/or (b) charge Customer for any excess use at Digital Infrastructure’s then-standard rates. Customer acknowledges that Digital Infrastructure may, but is under no obligation to, monitor Customer’s use of the Services, including without limitation to ensure compliance with this Section 2.4.

2.5. Licensed Data. Subject to Customer’s ongoing compliance with this Agreement, Digital Infrastructure hereby grants Customer a limited license during the Term to access, download, copy, display, modify, create derivative works of, and otherwise use the Licensed Data, including without limitation by combining the Licensed Data with other data from third-party sources: (i) for Customer’s internal business purposes; (ii) to aggregate and anonymize the Licensed Data to create datasets from which no individual Vehicle could be identified or reidentified (“Aggregate Data”); and (iii) to use such Aggregate Data for Customer’s business purposes, including to create, generate, publish, display, and distribute applications, products, and reports derived from such Aggregate Data.

2.6. Service Levels and Support. Commencing on the applicable Effective Date and continuing for the remainder of the applicable Order Term, Digital Infrastructure will use commercially reasonable efforts to (i) make the Service available in accordance with Digital Infrastructure’s then-current policies and procedures; and (ii) provide Customer with reasonable technical support by email during Digital Infrastructure’s business hours (9 AM – 5 PM EST, excluding weekends and holidays). Customer acknowledges and agrees that Customer’s sole and exclusive remedy and Digital Infrastructure’s entire liability arising out of any failure to meet any specific uptime commitments set forth in an Order Form are those remedies set forth in the applicable Order Form.

2.7 Third-Party Tools. Subject to this Agreement, Digital Infrastructure makes available to Customer certain third-party tools in connection with Customer’s use of the Service, as set forth on the Order Form or as may be made available to Customer from time to time (collectively, the “Third-Party Tools”). Except where expressly specified otherwise in this Agreement, the Third-Party Tools constitute a “Service” for the purposes of the Agreement and the Agreement shall apply in full to Customer’s use of the Third-Party Tools. Digital Infrastructure does not make any representations with respect to the Third-Party Tools. Such Third-Party Tools are not under the control of Digital Infrastructure and do not form part of the Digital Infrastructure Technology. Digital Infrastructure is not responsible for any Third-Party Tools, and Customer uses any such Third-Party Tools at its own risk. Additional terms may apply to Customer’s use of any Third-Party Tools.

3. Fees

3.1. Fees. During the Term, Customer will pay Digital Infrastructure all fees of the type and amount set forth in an Order Form (“Fees”). Customer will pay for any excess usage beyond any usage limitations or metrics on which Fees are based at the rates set forth in the Order Form, or, if no such rates are set forth on the Order Form, then at Digital Infrastructure’s then-current standard rates for such usage.

3.2. Payment. Unless otherwise set forth in an Order Form, Fees for access to and use of the Service will be invoiced in advance on a monthly basis. If fees for Professional Services are not set forth on the Order Form, such fees will be paid for services to be rendered at Digital Infrastructure’s then prevailing time and materials rates. Customer agrees to promptly reimburse Digital Infrastructure upon invoice for any actual, out-of-pocket travel and lodging expenses incurred by Digital Infrastructure in connection with any on-site Professional Services set forth in an Order Form. Unless otherwise set forth in an Order Form: (i) all Fees are non-cancellable, non-refundable, and non-recoupable; and (ii) all invoices for Fees are due and payable in United States dollars within 30 days after the invoice date, without deduction or setoff. Interest accrues from the due date at the lesser of 1.5% per month or the highest rate allowed by law. Customer is responsible for all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of the Agreement or the transactions contemplated by the Agreement (other than taxes based on Digital Infrastructure’s net income).

3.3. Promotional Terms. Certain Services may be made available to Customer on a free or promotional trial basis (a “Promotional Term”), the duration and terms of which such Promotional Term will be set forth in an Order Form. Unless otherwise expressly set forth, your use of any such Service(s) will expire at the end of the Promotional Term, and any further use of such offerings is subject to our then-standard applicable Fees and commercial terms.

4. Proprietary rights

Customer acknowledges that as between the Parties Digital Infrastructure owns and retains all rights, title, and interest, including all intellectual property rights, in and to the Digital Infrastructure Technology, including all technology, software, algorithms, user interfaces, trade secrets, techniques, designs, inventions, works of authorship, and other tangible and intangible material and information pertaining thereto or included therein, and nothing in the Agreement shall preclude or restrict Digital Infrastructure from using or exploiting any concepts, ideas, techniques or know-how of or related to the Digital Infrastructure Technology or otherwise arising in connection with Digital Infrastructure’s performance under the Agreement. Other than as expressly set forth in the Agreement, no licenses or other rights in or to the Digital Infrastructure Technology are granted to Customer and all such rights are hereby expressly reserved.

5. Term and termination

5.1. Term. The Agreement will start on the Effective Date and will continue until terminated in accordance with the Agreement (the “Term”). Unless otherwise stated in an Order Form, each Order Form 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 Form, for consecutive periods of the same duration as the Initial Term (each such period with respect to that Order Form, a “Renewal Term” and all Renewal Terms of an Order Form together with the Initial Term of that Order Form, the “Order Term”) 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.

5.2. Termination. Either Party may terminate the Agreement by written notice: (i) if no Order Forms have been in effect between the Parties for a period of thirty (30) consecutive days; (ii) if the other Party is in material breach of the Agreement, where such material breach is not cured within thirty (30) 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 forty-five (45) 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 forty-five (45) days. Notwithstanding anything to the contrary herein, if Customer fails to pay any amounts owed to Digital Infrastructure within fifteen (15) days after written notice of nonpayment of any amounts owed to Digital Infrastructure, which may be provided any time after any amount becomes past due, Digital Infrastructure may immediately terminate this Agreement. 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 Digital Infrastructure’s request destroy and certify the destruction of any tangible embodiments of Digital Infrastructure’s Confidential Information, including all copies of the SDK and API. 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 Confidentiality

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 Digital Infrastructure Technology, the functionality and performance of the Digital Infrastructure Technology, including any metrics pertaining thereto are the Confidential Information of Digital Infrastructure, and the terms (but not the existence) of the Agreement will be kept confidential by each Party as the 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.

7. Indemnification

7.1. By Digital Infrastructure. Digital Infrastructure shall: (i) defend, or at its option settle, any claim brought against Customer by a third party to the extent it alleges that the Digital Infrastructure 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 (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 Digital Infrastructure; provided that Customer provides Digital Infrastructure (a) prompt written notice of, (b) sole control over the defense and settlement of, and (c) all information and assistance reasonably requested by Digital Infrastructure in connection with the defense or settlement of, any such Claim. If any Claim is brought or threatened, Digital Infrastructure may, at its sole option and expense: (w) procure for Customer the right to continue to use the Digital Infrastructure Technology; (x) modify the Digital Infrastructure Technology, as applicable, to make it non-infringing; (y) replace the affected aspect of the Digital Infrastructure 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, Digital Infrastructure will have no liability to Customer: (1) for any use of the Digital Infrastructure Technology in combination with software, products or services not provided by Digital Infrastructure; to the extent that the Digital Infrastructure Technology would not be infringing but for such combination or modification; (2) for Customer’s failure to use the Digital Infrastructure Technology in accordance with the Agreement; or (3) for any use of Third-Party Tools.

7.2. Disclaimer. SECTION 7.1 STATES THE ENTIRE LIABILITY OF DIGITAL INFRASTRUCTURE, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY DIGITAL INFRASTRUCTURE, THE DIGITAL INFRASTRUCTURE 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 Digital Infrastructure by a third party: (i) arising out of any unauthorized access or use of the Service by Customer or any Employee Users or any third party utilizing any access credentials of Customer or any Employee Users; (ii) arising out of the use of the Service in violation or in connection with a violation of applicable law; or (iii) arising out of the operation of Customer’s business. Customer will indemnify Digital Infrastructure for all costs, liabilities, damages, and expenses incurred by Digital Infrastructure (or the amount of any settlement entered into or approved in writing by Customer) with respect to such a claim. Digital Infrastructure 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.

8. Disclaimer

EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, DIGITAL INFRASTRUCTURE HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LOSS OF DATA, OR ACCURACY OF RESULTS. DIGITAL INFRASTRUCTURE DOES NOT WARRANT THAT THE DIGITAL INFRASTRUCTURE TECHNOLOGY WILL BE ERROR-FREE, UNINTERRUPTED, OR COMPATIBLE WITH ANY PARTICULAR DEVICE, OR THAT ANY DATA PROVIDED BY OR THROUGH THE DIGITAL INFRASTRUCTURE TECHNOLOGY WILL BE ACCURATE OR COMPLETE. CUSTOMER ACKNOWLEDGES AND AGREES THAT (i) DIGITAL INFRASTRUCTURE AND THE SERVICE ONLY PROVIDE DATA COLLECTED FROM THIRD PARTY SOURCES AND DIGITAL INFRASTRUCTURE DOES NOT VERIFY THE ACCURACY OF SUCH DATA; (ii) SUCH INFORMATION IS NOT GUARANTEED TO BE ACCURATE OR TO SATISFY ANY LEGAL OR THIRD-PARTY STANDARDS; (iii) DIGITAL INFRASTRUCTURE DOES NOT REPRESENT THAT ANY THIRD-PARTY SOURCE (INCLUDING ANY THIRD-PARTY TOOL PROVIDER) HAS THE RIGHTS TO MAKE ANY LICENSED DATA AVAILABLE, NOR THAT CUSTOMER CAN USE THE LICENSED DATA FOR ANY PURPOSE; AND (iv) CUSTOMER BEARS ALL RESPONSIBILITY, AND DIGITAL INFRASTRUCTURE WILL HAVE NO LIABILITY FOR CUSTOMER’S USE OF ANY LICENSED DATA PROVIDED BY THE SERVICE OR BY DIGITAL INFRASTRUCTURE, INCLUDING ANY DECISIONS MADE BY CUSTOMER BASED ON ANY SUCH LICENSED DATA. CUSTOMER IS SOLELY RESPONSIBLE FOR ENSURING THAT CUSTOMER’S USE OF THE SERVICE, AND CUSTOMER’S USE OF ANY LICENSED DATA PROVIDED THEREBY OR RECEIVED THEREFROM, COMPLIES WITH APPLICABLE LAW. Digital Infrastructure is not responsible for any losses or harms sustained by Customer (or any third party) due to vulnerability or any kind of failure, behavior of software (e.g., smart contract), blockchains, or any other features of or inherent to blockchain technology. Digital Infrastructure is not responsible for casualties due to developers’ or representatives’ delay or failure to report any issues with any blockchain supporting digital assets, including without limitation forks, technical node issues, or any other issues that result in losses of any sort.

9. Limitation of liability

EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS OR BREACH OF SECTION 6 (CONFIDENTIALITY): (i) IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THE AGREEMENT, HOWEVER CAUSED, AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (ii) NEITHER PARTY’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THE AGREEMENT (EXCEPT FOR CUSTOMER’S PAYMENT OBLIGATIONS) WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, DIGITAL INFRASTRUCTURE’S TOTAL LIABILITY HEREUNDER SHALL NOT EXCEED TWO TIMES (2x) THE AMOUNT PAID BY CUSTOMER HEREUNDER DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.

10. General provisions

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 Digital Infrastructure 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 Delaware 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 Kent County, Delaware, and the Parties hereby agree and consent to the exclusive jurisdiction and venue of such courts.

10.4. Publicity. Each Party may use the other Party’s name and logo (“Marks”) as a reference for marketing or promotional purposes on such Party’s website and in other communication with existing or potential customers of such Party. Any other use of a Party’s name or logo shall be subject to such Party’s prior written consent. Each Party (a “TM Licensor”) grants the other Party (a “TM Licensee”) a non-exclusive, non-transferable (except in accordance with this Agreement), non-sublicensable, worldwide, royalty-free, fully paid up right and license to use TM Licensor’s Marks for the purpose of exercising TM Licensee’s rights and performing TM Licensee’s obligations hereunder, subject in each instance to TM Licensor’s prior written approval of such use. TM Licensor shall retain all right and license in its own Marks, and TM Licensee agrees not to take any action inconsistent with such ownership, and further agrees to take any action reasonably necessary to preserve TM Licensor’s rights in its Marks. TM Licensee agrees not to apply for or register any marks which are confusingly similar to TM Licensor’s Marks. All use of TM Licensor’s Marks shall be in compliance with any brand guidelines or other guidelines provided by TM Licensor. All use of TM Licensor’s Marks shall inure to the benefit of TM Licensor. In the event that TM Licensor objects in writing (email to suffice) to TM Licensee’s use of TM Licensor’s Marks, TM Licensee will immediately cease such use.

10.5. Government Rights. Digital Infrastructure provides the Digital Infrastructure 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 (Customer-Side Application) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Customer-Side Application or Computer Customer-Side Application Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Digital Infrastructure 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 Form, the terms and conditions of the Order Form will govern solely to the extent of such conflict. 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 Digital Infrastructure. Customer agrees that it is solely responsible for any liability arising out of any Employee Users’ access and use of the Digital Infrastructure Technology in violation of this Agreement. No terms of any purchase order, acknowledgement, or other form provided by Customer in connection with an Order Form will modify the Agreement, regardless of any failure of Digital Infrastructure 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 expressly referencing this Section 10.7 to an address designated by a Party for such purpose. The relationship between the Parties shall be that of independent contractors. Digital Infrastructure may use subcontractors or otherwise delegate aspects of its performance under the Agreement; provided that Digital Infrastructure 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.