Modem Terms of Service

Last Updated: Oct 29, 2025

Modem Labs Inc. ("Modem," "us," "we," or "our") develops, owns, and operates the proprietary software-as-a-service offering that automates product development, together with our Agent (defined below), as may be further described on the Site (defined below) or the available Documentation (defined below) (the "Modem Platform"). The Modem Platform includes any text, pictures, designs, images, videos, illustrations, music, sound, articles, publications, media, data, information, materials, and any other electronic or digital content (collectively, the "Content") that Modem makes available at or through the Modem Platform through its website, located at https://modem.dev ("Site"). These Modem Terms of Service (the "Terms of Service", together with any Order Forms (defined below) addenda, attachments, exhibits, and/or amendments hereto, as amended from time to time, collectively the "Agreement") form an Agreement between Modem and you and govern your access to and use of the Modem Platform. This Agreement is entered into on the earlier of the date Customer (defined below) first uses any part of the Modem Offering (defined below) and the date Customer agrees to be bound by this Agreement ("Effective Date"). "Order Form" means the ordering document, online registration, order description or order confirmation referencing these Terms of Service. The term "you", "your", or "Customer" refers to the person, or entity accessing or otherwise using the Modem Platform or any part thereof ("use" or "using" in these Terms of Service will mean any of the foregoing).

BY USING THE MODEM PLATFORM, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 1. IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE MODEM PLATFORM. BY USING THE MODEM PLATFORM, CUSTOMER REPRESENTS AND WARRANTS TO MODEM THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE MODEM PLATFORM ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO MODEM THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT. THE MODEM PLATFORM MAY NOT BE ACCESSED OR USED FOR PURPOSES OF MONITORING ITS AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES. MODEM DIRECT COMPETITORS ARE PROHIBITED FROM ACCESSING OR USING THE MODEM PLATFORM EXCEPT WITH MODEM'S PRIOR WRITTEN CONSENT.

1. Changes to these Terms of Service

Except where prohibited by applicable law, we reserve the right to change these Terms of Service by posting a new version on the Site. Your continued access to or use of the Modem Offering after any changes to these Terms of Service indicates your acceptance of such changes. It is your responsibility to review these Terms of Service regularly.

2. Your User ID and Account

(a) To access certain features of the Modem Platform, you may be required to successfully sign up for a user account (an "Account") using interfaces made available you by us and select a username and password login credentials (the "User ID").

(b) After completing registration for an Account, you will be able to access your Account by using your User ID or a valid authentication method that is linked to your Account, which may include any authentication method that we make available to you from time to time (each, an "Authentication Method"). Modem makes use of third party providers to provide authentication services, we are not responsible for any error by, or other acts or omissions of, any such third party provider of authentication services. You will keep your User ID, Account and Authentication Method secure and will not grant access to or otherwise share your User ID, Account and Authentication Method with any other person. Except for access to elements of the Modem Platform in jurisdictions that mandate the availability of account-free access to such elements of the Modem Platform, you will only access and use the Modem Platform using your Account or Authentication Method. You will immediately notify us if your User ID or Authentication Method is lost or stolen or if you become aware of any actual or suspected unauthorized use of your Account or Authentication Method.

(c) You must provide us with true, accurate, current, and complete information relating to your Account. If we believe or suspect that your information is not true, accurate, current, or complete, we may deny or terminate your access to or use of the Modem Platform. We reserve the right to disable any Account or Authentication Method issued to you at any time in our sole discretion. If we disable access to your Account or Authentication Method, you may be prevented from accessing or using the Modem Platform or any portion thereof.

(d) You agree to monitor and control all activity associated with your Account. Modem is entitled to act on instructions received through your Account. Modem is not responsible for any actions taken or transactions made to or from your Account by any other party using your User ID or Authentication Method. You are solely responsible for any and all use of your User ID, Authentication Method and all transactions or activities that occur under or in connection with the User ID and Authentication Method, including any charges incurred due to usage of the lost or stolen or unauthorized access to your User ID or Authentication Method. Without limiting any rights which we may otherwise have, we reserve the right to take any and all action, as we deem necessary or reasonable, to ensure the security of the Modem Platform and your Account, including terminating your Account or Authentication Method or changing your User ID. We may also request additional information from you to authenticate your Account prior to authorizing transactions on your Account. You agree to be responsible for any act or omission of any persons that access the Modem Platform under your User ID and Authentication Method that, if undertaken by you, would be deemed a violation of these Terms of Service.

3. Modem Offering

(a) Subject to the terms and conditions of this Agreement, during the applicable Subscription Term (defined below) Modem will make the Modem Platform available to Customer for use by Customer, its employees (each a "Authorized Users") and Customer's customers, if such access is permitted by Modem in the Modem Platform or otherwise approved in writing by Modem (each a "Client User"). "Permitted Users" means Authorized Users and Client Users.

(b) Subject to Customer's ongoing compliance with the terms and conditions of this Agreement, Modem hereby grants Customer a non-exclusive, revocable, limited, non-sublicensable, non-transferable (except as permitted in Section 15(b)), non sublicensable (except for permitted use by Permitted Users), right and license (where applicable) during the Subscription Term, to access and use the Modem Platform and where applicable, API (defined below), in each case solely for Customer's internal use.

(c) If and to the extent set forth in the applicable Order Form that Customer is permitted to access and use the application programming interfaces ("APIs"), then: (i) in order to use Modem's APIs, Customer must first sign up with Modem, agree to these Terms of Service, and receive an API key from Modem (each, an "API Key"). Customer acknowledges that such API Keys are Modem's Confidential Information (as defined below) and will not share Customer's API Keys with any third party without Modem's prior consent. In addition, Modem may revoke Customer's API Keys any time without Customer's consent. (ii) Customer may incorporate Modem's APIs into Customer's products and services and otherwise use Modem's APIs in connection with its internal business purposes, provided such incorporation and use are done in accordance and in compliance with this Agreement and the related Documentation. (iii) unless otherwise set out in an Order Form, the number of calls Customer makes to Modem's APIs during any given period may be limited, at Modem's sole discretion, based on various factors that include the manner in which Customer makes calls to Modem's APIs and the anticipated volume of use associated with Customer. (iv) Modem reserves the right to change Modem's APIs and related Documentation at any time and without notice. Customer acknowledges and understands that these changes may require Customer to make changes to Customer's applications ("Customer Applications") at Customer's own cost and expense. (v) Customer acknowledges and agrees that Modem may monitor Customer's or its Permitted Users' use of Modem's APIs and that Customer will not block or otherwise interfere with Modem's monitoring. (vi) at Modem's request, Customer will provide Modem access to, and use of, Customer Application, at no cost to Modem, for the purpose of monitoring or reviewing Customer Applications for compliance with this Agreement.

(d) The Modem Platform includes our artificial intelligence agent that performs tasks including to help you to automate your product development (the "Agent"). The Modem Platform (including the Agent) leverages third party large language models, artificial intelligence algorithms and platforms ("Third-Party Services") to perform various tasks and actions, including to generate suggested text, information, results, images, and other materials (collectively, the "Output") in response to your prompts ("Prompts"). Modem does not make any warranties, covenants or representations with respect to Third-Party Services or any Output provided in connection therewith. Modem is not responsible for Outputs, and you are responsible for checking Outputs for accuracy and suitability. The Outputs provided by the Modem Platform do not reflect the views, opinions, or recommendations of Modem, our affiliates or our personnel.

(e) The Modem Offering may include data and software from third parties. Some third-party providers including providers of Third-Party Services may require Modem to pass additional terms through to you. The third-party providers change their terms occasionally and new third-party providers are added from time to time. We may provide links to such third-party providers terms to you from time to time. You will comply with all applicable third-party terms and conditions (including third party terms and conditions applicable to Third-Party Services). We cannot guarantee the continued availability of such Third-Party Services, third party products, data, services or features and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a third-party providers ceases to make the third-party providers' products, Third-Party Services, data, features or services available for interoperation or otherwise in connection with the corresponding service features in a manner acceptable to Modem. Modem is not responsible for any disclosure, Modification (defined below) or deletion of Customer Property (defined below) resulting from access by such third-party providers' products, Third-Party Services, data, features or services or its third-party providers.

(f) Modem may engage third parties to provide the Modem Platform, APIs, Support Services (defined below) and Professional Services (defined below), (collectively "Modem Offering") or any part thereof, without the consent of Customer and without notice to Customer. The delegating or subcontracting of all or any part of Modem's obligations under this Agreement to any subcontractor or other third parties will not relieve Modem from any obligation or liability under this Agreement.

(g) From time to time, we may make available products, services, features, or functionality to you that are not generally made available to our customers or are designated as alpha, beta, experimental, preview, pre-release, pre-production, early access, or similar designation ("Beta Services"). The purpose of Beta Services testing is to evaluate the functionality, performance, and usability of the Beta Services. Beta Services are not Modem Offering under this Agreement. Customer agrees that Modem, in its sole discretion and for any or no reason, may suspend, discontinue or terminate Customer's access to and use of any Beta Services (or any part thereof) or Modify Beta Services (or any part thereof). Customer agrees that any termination, discontinuation or suspension of Customer's access to and use of the Beta Services may be without prior notice, and Customer agrees that Modem will not be liable to Customer or any third party for such termination, discontinuation or suspension. You will comply with all applicable terms and conditions for any such Beta Services, as may be required by Modem in its sole discretion from time to time ("Beta Terms"). Notwithstanding anything to the contrary in the Agreement, in the event of any conflict between the Agreement and Beta Terms, the Beta Terms shall govern solely in connection with the Beta Services.

WITHOUT LIMITING ANY DISCLAIMERS IN THIS AGREEMENT, THE BETA SERVICES: (I) ARE NOT A FINAL PRODUCT AND MAY CONTAIN DEFECTS, BUGS, AND OTHER ISSUES; AND (II) ARE BEING PROVIDED SOLELY ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED IN OUR SOLE DISCRETION AT ANY TIME. YOU ASSUME ALL RISKS AND COSTS ASSOCIATED WITH YOUR USE OF THE BETA SERVICES. ADDITIONALLY, WE ARE NOT OBLIGATED TO PROVIDE ANY INDEMNITY, MAINTENANCE, TECHNICAL, OR OTHER SUPPORT FOR THE BETA SERVICES. WITHOUT LIMITING THE FOREGOING, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE "WARRANTY", "MODEM INDEMNITY", AND "LIMITATION OF LIABILITIES" SECTIONS HEREIN, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL MODEM BE LIABLE TO CUSTOMER OR ANY OF ITS PERMITTED USERS FOR ANY: (I) DIRECT; (II) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (A) SAVINGS, (B) PROFIT, (C) DATA, (D) USE, OR (E) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES. MODEM, ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (I) CUSTOMER'S USE OF THE BETA SERVICES WILL MEET CUSTOMER'S REQUIREMENTS; (II) CUSTOMER'S USE OF THE BETA SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; AND (III) DATA PROVIDED THROUGH THE BETA SERVICES WILL BE ACCURATE. CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO MODEM AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER'S USE OF THE BETA SERVICES, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER'S INDEMNIFICATION OBLIGATIONS HEREUNDER.

4. Restrictions on Use; Customer Responsibilities

(A) Customer must not itself, and will not permit others to: (a) sub-license, sell, rent, lend, lease or distribute the Modem Property (defined below) or any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world ("Intellectual Property Rights") therein or otherwise make the Modem Property available to others; (b) use the Modem Platform to permit timesharing, service bureau use or commercially exploit the Modem Platform; (c) use or access the Modem Offering, other Modem Property (defined below) or Outputs: (i) for any personal, family or household use; (ii) in violation of any applicable law or Intellectual Property Right; or (iii) in a manner that threatens the security or functionality of the Modem Platform; (d) use the Modem Offering to create, collect, transmit, store, use or Process (defined below) any data, information, messages, chats, content, records, or files loaded, transmitted or entered into the Modem Offering by you or your Permitted Users (the "Customer Data") that: (i) contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (ii) Customer does not have the lawful right to create, collect, transmit, store, use or Process; (iii) violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity); or (iv) contains any Personal Information (defined below), other than information about you that you provide to us in connection with the creation or administration of Account ("Account Information"). For example, Account Information includes BCI, usernames, and billing information associated with Account, required by Modem to set up accounts for Customer. "BCI" means Customer's and its Permitted Users' names, work titles, work phone numbers, and work email addresses associated with Account; (e) download (in any way whatsoever including automatically download) print in whole or in parts, mine, scrape or index, any data that is made available to Customer as part of the Modem Property, other than as expressly permitted by Modem in writing; (f) use any Content made available to Customer as part of the Modem Platform, other than as expressly permitted by Modem in writing; (g) use the Modem Platform to circumvent the intended features, functionality or limitations of the Modem Platform, including any content filters, safety controls, or guardrails regarding the Content that are made available to Customer as part of the Modem Platform; (h) run or install any computer software or hardware on the Modem Platform or network that supports or hosts the Modem Platform; (i) automatically connect (whether through APIs or otherwise) the data made available to Customer as part of the Modem Platform to other data, software, services or networks, other than as expressly permitted by Modem in writing; (j) use the Modem Platform, Modem Property, Outputs or our third-party providers' property to train any artificial intelligence or machine learning algorithms or software or create any derivative works, compilations or collective works or in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any person, or that violates any applicable law; (k) allow any third parties to access, use or benefit from Modem Property in any way; (l) modify the Modem Platform or other Modem Property; (m) reverse engineer, de-compile or disassemble the Modem Property or Outputs; (n) remove or obscure any proprietary notices or labels on the Modem Platform, including brand, copyright, trademark and patent or patent pending notices; (o) access or use the Modem Offering, other Modem Property, or any Outputs for the purpose of building a similar or competitive product or service; (p) generate Outputs using inputs or Prompts designed to intentionally infringe the Intellectual Property Rights of any third party; (q) perform any vulnerability, penetration or similar testing of the Modem Platform; or (r) use or access the Modem Platform, other Modem Property or Outputs for any purpose or in any manner not expressly permitted in this Agreement.

(B) Customer will not create any Account for a Client User unless permitted in writing by Modem. Customer is responsible and liable for all uses of the Modem Offering resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Permitted Users, and any act or omission by a Permitted User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer will use all reasonable efforts to make all Permitted Users aware of this Agreement's provisions as applicable to such Permitted User's use of the Modem Offering and shall cause Permitted Users to comply with such provisions.

(C) Customer will ensure that all use, access or receipt of the Modem Offering, other Modem Property, Agents, Outputs, third-party data providers' products, data or services is pursuant to this Agreement and complies with this Agreement.

5. Suspension of Access; Scheduled Downtime; Modifications

Modem may, from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement: (A) suspend Customer's access to or use of the Modem Offering or any component thereof: (a) for scheduled maintenance; (b) due to a Force Majeure Event (defined below); (c) if Modem believes in good faith that Customer or any of its Permitted Users has violated any provision of this Agreement; (d) to address any emergency security concerns; (e) if required to do so by a governmental or regulatory authority or as a result of a change in applicable laws; (f) if any Outputs are or are alleged to infringe the Intellectual Property Rights of any person; or (g) for any other reason as provided in this Agreement (any such suspension described in Section 5(A) (a) through (g), a "Suspension"). Modem will give notice of Suspension under this Section if permitted by applicable laws, provided, however, that Customer acknowledges and agrees that it may not be feasible for Modem to provide written notice prior to suspending the Modem Property in order to address emergency security concerns, in which case, Modem will provide notice as soon as reasonably possible after such Suspension. Modem will reinstate Customer's access to the Modem Offering only if Customer resolves the underlying issue. Modem will have no liability, whether under contract, tort (including negligence), or otherwise, regardless of whether foreseeable or contemplated by the parties, for any damages, Losses (defined below) or liabilities (including Loss of data or profits), or any other consequences that Customer or any Permitted User may incur because of a Suspension; and (B) make any Modifications to the Modem Offering provided that such Modifications do not result in any material reduction to the functionality or performance of the Modem Offering. Certain Modem Offering include updates (bug fixes, patches, maintenance releases). We reserve the right to charge for upgrades (releases or versions that include new features or additional functionality) or any APIs for applicable Modem Offering. Any additional charges for selected upgrades or APIs will be set forth in a separate Order Form or confirmed by us to you. We may subject certain features or functionality to metering or other usage restrictions to maintain responsive performance. For greater certainty, Customer is required to accept all patches, bug fixes and updates made by or on behalf of Modem to the Modem Offering. If the Customer does not want to accept any patch, fix or update for security or privacy reason, it may terminate the Agreement without any penalty upon giving prompt notice.

6. Professional Services

Modem will perform consulting, training and other professional services described in the Site ("Professional Services"). Professional Services may include delivery of deliverables ("Deliverables") to Customer. Customer acknowledges and agrees that Modem's performance of the Professional Services is dependent on Customer's performance of certain activities and tasks as may be reasonably requested by Modem to facilitate Modem's timely performance of the Professional Services, including, without limitation, providing Modem with access to sufficiently qualified employees of Customer, Customer facilities, or working space or office support at such Customer facilities ("Dependencies"). Modem will not be liable for any delay or non-performance of any Professional Services caused by Customer's non-performance or inadequate performance of any Dependencies. All Professional Services will be performed remotely unless otherwise mutually agreed by the parties in writing. Within 5 business days of Modem's delivery of a Deliverable, Customer will provide Modem with written notice of its acceptance or rejection of such Deliverable. If Customer rejects any such Deliverable, Modem will correct the deficiencies set out in Customer's notice of rejection for such Deliverable. Once Modem has notified Customer that it has completed such corrections, Customer will have 5 business days from the date of such notice to re-test the Deliverable. If Customer uses any Deliverable delivered by Modem or fails to give notice of acceptance or rejection within the time period set out herein, such use of any Deliverable or failure to give notice of acceptance or rejection will constitute Customer's deemed acceptance of such Deliverable (provided such acceptance shall not be deemed to be waiver of any otherwise breach or liability under this Agreement).

7. Ownership; Reservation of Rights

Subject to the rights granted in this Section 3, as between Customer and Modem, Customer retains all right, title and interest, including any Intellectual Property Rights in and to Customer Data, Customer's Confidential Information (defined below), Prompts and Outputs (other than any Modem Property embedded in such Outputs) (collectively "Customer Property"). Notwithstanding the foregoing, Customer acknowledges and agrees that certain jurisdictions do not recognize intellectual property ownership in Outputs and as a result Modem makes no representation or warranty that Customer will have full ownership of such Outputs. Customer grants Modem: (A) a non-exclusive, worldwide, royalty-free, irrevocable, sublicensable, non transferable (except as permitted in Section 15(b)) and fully paid-up license during the Term to collect, use, modify, retrieve, disclose, retain, store, delete or manage ("Process") Customer Property solely as necessary to provide the Modem Offering; and (B) a non-exclusive, perpetual, worldwide, royalty-free, irrevocable, sublicensable, transferable, and fully paid-up license Process Customer Property to: (x) produce or generate information and other data that is collected or generated by Modem related to how individual users interact with the Modem Offering, including frequency and duration of usage, specific features or functions accessed, user preferences and patterns of behavior. Usage Data does not include any Customer's Personal Information ("Usage Data"); and (y) with the exception of Customer's Personal Information, generate data that is non-identifiable as to any individual and otherwise does not constitute "personal information" under privacy law ("Anonymous Data"). For the avoidance of doubt, the Processing of Anonymous Data and Usage Data will not be subject to the terms of the Privacy Policy (defined below). Modem may Process the Anonymous Data and Usage Data for any purpose and without restriction or obligation to Customer of any kind. Anonymous Data and Usage Data are not Customer Property and are not Customer's Confidential Information.

(a) Modem or its licensors retain all right, title and interest, including any Intellectual Property Rights in and to: (i) the Modem Offering; (ii) Anonymous Data, Usage Data and metadata; (iii) any documentation provided by Modem in any form whatsoever, including any reports, records, specifications, requirements, user manuals, user guides, operations manuals, training materials, instructions, or plans ("Documentation"); (iv) all other Modem's Confidential Information, including any API Keys, reports, or Deliverables generated from the Modem Offering; and (v) any modifications, improvements, customizations, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations (collectively the "Modifications") to the foregoing (i), (ii), (iii) and (iv) (collectively "Modem Property").

(b) Without Section 3(b), subject to Customer's compliance with the terms and conditions of this Agreement, Modem hereby grants Customer a limited, non exclusive, non transferable (except as permitted in Section 15(b)), non sublicensable (except for use by Permitted Users), revocable license during the Subscription Term, to access and use Documentation, Deliverables, reports, graphs and results made available to the Customer through the Modem Offering, solely for Customer's internal use for the purpose of use and receipt of the Modem Offering.

(c) All rights not expressly granted by a party to the other party under the Agreement are reserved.

(d) To the extent that you submit ideas, suggestions, documents, or proposals regarding the Modem Offering to Modem ("Feedback"), you acknowledge and agree that: (i) the Feedback does not contain confidential or proprietary information and Modem is not under any obligation of confidentiality with respect to the Feedback; and (ii) Modem will be entitled to use, commercialize or disclose (or to choose not to use, commercialize, or disclose) such Feedback for any purpose, in any way, in any manner, and to anyone worldwide without any compensation or reimbursement of any kind to you for such use.

8. Privacy

(a) Information about an identifiable individual ("Personal Information") will be treated in accordance with Modem's privacy policy located at https://modem.dev/privacy-policy as may be updated by Modem from time to time (the "Privacy Policy").

(b) Given the inherent nature of the internet and public networks, and without limiting the Privacy Policy referenced herein, Modem does not, and cannot, guarantee the security of data transmitted or the confidentiality of any communications made by Customer or any Permitted User over the Internet or public networks in connection with Customer's use of Modem Offering.

9. Support Services

Subject to Customer's compliance with this Agreement, Customer will have access to Modem's standard support services for the Modem Platform (collectively the "Support Services").

10. Fees and Payment

(a) Except where prohibited by applicable law, pricing and availability of the Modem Offering is subject to change at any time prior to purchase. Customer will pay the fees for the Modem Offering are as published at the Site, or otherwise agreed to in an applicable Order Form ("Fees"). Unless otherwise set forth in these Terms of Service: (i) all Fees identified are in the currency billed by Modem in an electronic bill or an applicable invoice; and (ii) Fees are non-cancelable and non-refundable. Certain Modem Offering may be designated as fee-free or otherwise available without triggering a payment for a limited time or based on usage limits. Specific Fees agreed to in an Order Form is applicable for the specified Subscription Term, may be required to be payable in advance, and is subject to quantities purchased not being decreased during the Subscription Term. To the extent Customer's use exceeds the usage specified in the Site or Order Form, Modem will bill Customer for the excess use in arrears calculated based on the pricing published at the Site or as otherwise agreed to in an applicable Order Form.

(b) We may issue an electronic bill or invoice to Customer including, if applicable, Fees based on Customer's use of the Modem Offering or other services during the applicable Fee billing period. We reserve the right to correct pricing errors or mistakes at any time.

(c) To pay your Fees, you will need to provide Modem or, if applicable, a third-party payment processor (the "Payment Processor") with the information necessary to process payment from you, including the billing information requested on the Site or the applicable Payment Processor's platform. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor, if any, in addition to this Agreement. We are not responsible for any error by, or other acts or omissions of, any Payment Processor. You may pay for your Fees via credit card or any other manner then available on the Site or applicable Payment Processor's platform. By submitting your payment information to us or the Payment Processor, you authorize us or the Payment Processor to charge the applicable payment method at our or their convenience (but within thirty (30) days of credit card authorization). You represent and warrant that you will not use any credit card or other form of payment unless you have all necessary authorization to do so. We assume that because payments require a valid credit card, only persons age 18 or over are paying Fees and providing us or the Payment Processor with the information requested during the payment process. We or the Payment Processor are not liable in the event others acting with or without your permission use your credit card or other means of payment to make purchases on the Site or the Payment Processor's platform; however, you may report any unauthorized use to us or the Payment Processor, and we or the Payment Processor will use reasonable measures within our control to help prevent future unauthorized use of your card. We reserve the right to correct any errors or mistakes that any Payment Processor makes even if it has already requested or received payment.

(d) The terms of your payment will be based on your chosen payment provider and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen payment method. If we, either through the Payment Processor or otherwise, do not receive payment from you, you agree to pay all amounts due on your billing Account upon demand.

(e) You must keep a valid payment method on file with us to pay for all incurred and recurring Fees.

(f) Subscriptions to the Modem Platform ("Subscriptions") are automatically charged each billing period (whether weekly, monthly, annually, or another period). You may cancel your Subscription at any time, which will take effect at the end of your then-current billing period.

(g) Fees do not include, and may not be reduced to account for, any taxes, which may include local, state, provincial, federal or foreign taxes, withholding taxes, levies, duties or similar governmental assessments of any nature, including, but not limited to, value-added taxes, excise, sales, use, gross receipts, GST or HST, personal property, services taxes, consumption taxes or other taxes (collectively "Taxes"). Customer will be responsible for and pay all Taxes imposed on the Modem Offering or any other services provided under this Agreement, other than taxes based on the net income or profits of Modem. If Modem has a legal obligation to pay or collect Taxes for which Customer is responsible under this Agreement, the appropriate amount shall be computed based on Customer's address listed in the Site or Order Forms, unless Customer provides Modem with a valid tax exemption certificate authorized by the appropriate taxing authority.

(h) Modem reserves the right to increase the Fees of the Modem Offering. If the price of your Subscription changes, we will notify you, and such price change will be applicable to the next payment due at least 30 days after such notice. If the next payment due date is within 30 days of such notice, you will not be charged the updated Subscription price for such payment. You may cancel a Subscription if you do not accept any increased Subscription prices, as set out in Section 10(f) above.

(i) Any payment dispute must be submitted in good faith before the date on which a payment is due. If Customer fails to make any payment when due on any undisputed Fees, without limiting Modem's other rights and remedies, Modem may, if such failure continues for five (5) days following written notice thereof, Modem may: (i) charge interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid; and (ii) (A) suspend, in accordance with Section 2.3, Customer's and all other Permitted Users' access to any portion or all of the Modem Offering until such amounts are paid in full; or (B) terminate the Agreement immediately on notice (which may be sent by electronic means to the account administrator), without incurring any obligation or liability to Customer or any other person by reason of such suspension or termination.

(j) Late payments (which do not include amounts subject to a good faith payment dispute submitted before the date on which a payment is due), may bear interest, where permissible, at the rate of 1.5% per month (or the highest rate permitted by law, if less) from the date on which such payment is due until paid in full. Customer will be responsible for all reasonable expenses (including attorneys' fees) incurred by Modem in collecting such delinquent amounts. Further, in the event of any late payment for the Modem Offering, Modem may, in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement, disable or limit access to or use of the Modem Offering (or components of the Modem Offering) until payment is received or terminate the Agreement as provided herein. Modem reserves any other rights of collection it may have. Any Suspension of the Modem Offering by Modem pursuant to this Agreement will not excuse Customer from its obligation to make payments under this Agreement.

(k) Modem may make available to Customer trial or evaluation use of the Modem Offering, including services, software, or features that may not yet be generally available, including pre-release of the foregoing which may not operate correctly ("Trial") for the Trial period set by Modem in writing. Trial may include partial features or functionality of the Modem Offering. Customer may access and use Trial solely for the purpose of evaluating and testing the Modem Offering and related features. If Customer does not agree to continue use of the Modem Offering through a paid Subscription as described herein, Modem will terminate Customer's right to access and use the Modem Offering immediately upon the end of the Trial period. Customer agrees that Modem may, in its sole discretion and for any or no reason, at any time terminate this Agreement (including Customer's access to and use of the Modem Offering) during any Trial period or any part thereof. Customer agrees that any termination of Customer's access to and use of the Trial may be without prior notice, and Customer agrees that Modem will not be liable to Customer or any third party for such termination. Notwithstanding anything to the contrary in the Agreement, in the event of any conflict between the Agreement and this Section, this Section shall govern solely in connection with the Trial.

CUSTOMER IS SOLELY RESPONSIBLE FOR EXPORTING CUSTOMER DATA FROM THE TRIAL PRIOR TO TERMINATION OF CUSTOMER'S ACCESS TO THE TRIAL FOR ANY REASON. ANY CUSTOMER DATA THAT CUSTOMER ENTERS INTO THE MODEM OFFERING (INCLUDING MODEM PLATFORM) DURING CUSTOMER'S TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME MODEM OFFERING AS THOSE COVERED BY THE TRIAL, BEFORE THE END OF THE TRIAL PERIOD. CUSTOMER CANNOT TRANSFER CUSTOMER DATA ENTERED DURING THE TRIAL TO MODEM OFFERING THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL; THEREFORE, IF CUSTOMER PURCHASES A SUBSCRIPTION THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, CUSTOMER MUST EXPORT CUSTOMER DATA BEFORE THE END OF THE TRIAL PERIOD OR CUSTOMER DATA WILL BE PERMANENTLY LOST. WITHOUT LIMITING ANY DISCLAIMERS IN THIS AGREEMENT, NOTWITHSTANDING THE "WARRANTY", "MODEM INDEMNITY" AND "LIMITATION OF LIABILITIES" SECTIONS BELOW, DURING THE TRIAL THE MODEM OFFERING ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY AND MODEM SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE MODEM OFFERING FOR THE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE MODEM'S LIABILITY WITH RESPECT TO THE MODEM OFFERING PROVIDED DURING THE TRIAL SHALL NOT EXCEED CAD$100.00. WITHOUT LIMITING THE FOREGOING, MODEM AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (I) CUSTOMER'S USE OF THE MODEM OFFERING DURING THE TRIAL PERIOD WILL MEET CUSTOMER'S REQUIREMENTS; (II) CUSTOMER'S USE OF THE MODEM OFFERING DURING THE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; AND (III) DATA PROVIDED DURING THE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE "LIMITATION OF LIABILITY" SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO MODEM AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER'S USE OF THE MODEM OFFERING DURING THE TRIAL PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER'S INDEMNIFICATION OBLIGATIONS HEREUNDER. CUSTOMER SHALL REVIEW THE APPLICABLE DOCUMENTATION DURING THE TRIAL PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE MODEM OFFERING BEFORE MAKING A PURCHASE.

(l) Modem may make services available to Customer free of charge ("Free Services"). Use of Free Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this section and any other portion of this Agreement, this section shall control. Free Services are provided to Customer without charge up to certain limits as described in the Documentation. Usage over these limits requires Customer's purchase of additional resources or services. Customer agrees that Modem, in its sole discretion and for any or no reason, may terminate Customer's access to and use of the Free Services (or any part thereof) at any time. Customer agrees that any termination of Customer's access to and use of the Free Services may be without prior notice, and Customer agrees that Modem will not be liable to Customer or any third party for such termination. Customer is solely responsible for exporting Customer Data from the Free Services prior to termination of Customer's access to the Free Services for any reason.

WITHOUT LIMITING ANY DISCLAIMERS IN THIS AGREEMENT, NOTWITHSTANDING THE "WARRANTY", "MODEM INDEMNITY" AND "LIMITATION OF LIABILITIES" SECTIONS BELOW, THE FREE SERVICES ARE PROVIDED "AS-IS" WITHOUT ANY WARRANTY AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL MODEM BE LIABLE TO CUSTOMER OR ANY OF ITS PERMITTED USERS FOR ANY: (I) DIRECT; (II) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (A) SAVINGS, (B) PROFIT, (C) DATA, (D) USE, OR (E) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, MODEM, ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (I) CUSTOMER'S USE OF THE FREE SERVICES WILL MEET CUSTOMER'S REQUIREMENTS; (II) CUSTOMER'S USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR; AND (III) DATA PROVIDED THROUGH THE FREE SERVICES WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE "LIMITATION OF LIABILITY" SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO MODEM AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER'S USE OF THE FREE SERVICES, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER'S INDEMNIFICATION OBLIGATIONS HEREUNDER.

11. Confidential Information

(a) Definitions. For the purposes of this Agreement, a party or any of its affiliates, customers, employees, licensors or suppliers receiving Confidential Information will be "Recipient", the party disclosing such information will be "Discloser" and "Confidential Information" of Discloser means any and all information of Discloser or any of its affiliates, and in the case of Modem, any of its subcontractors, service providers, licensors or customers that has or will come into the possession or knowledge of Recipient in connection with or as a result of entering into this Agreement, including information concerning Discloser's past, present or future customers, suppliers, technology or business, Modem Property, this Agreement and where Discloser is Customer, Customer's Confidential Information includes Customer Data. Notwithstanding the foregoing, except with respect to Personal Information, Confidential Information does not include any information that: (i) is publicly available prior to it being obtained by or becoming known to Recipient, or that subsequently becomes publicly available through no breach of this Agreement by Recipient; (ii) Recipient can demonstrate (through written records) was known to it prior to it being obtained by or becoming known to Recipient in connection with or as a result of entering into this Agreement; (iii) becomes known to Recipient from a third party, where Recipient had no reason to believe that such third party had any obligation of confidence with respect to such information, but only until Recipient subsequently comes to have reason to believe that such information was subject to an obligation of confidence; or (iv) Recipient can demonstrate (through written records) was developed independently by it or by individuals employed or engaged by Recipient who did not have any access to, or the benefit of, the Confidential Information of Discloser.

(b) Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times thereafter it will: (i) not disclose Confidential Information of Discloser to any person, except: (A) if Recipient is Customer, to its Permitted Users, or such other recipients as Modem may approve in writing; or (B) if Recipient is Modem, to its and its affiliates' employees, contractors, advisors, consultants, officers, directors, partners, shareholders, agents and their respective successors or permitted assigns, or such other recipients as Customer may approve in writing, provided that any person described in Section 11(b)(i)(A) or Section 11(b)(i)(B) must have a "need to know" for the purposes of receiving or providing the Modem Offering or otherwise performing obligations or exercising rights under this Agreement, be informed of the confidential nature of the Confidential Information, be directed to hold the Confidential Information in confidence and agree in writing, or otherwise be legally bound, to comply with confidentiality obligations in respect of such Confidential Information that are no less stringent than the provisions of this Agreement; (ii) not use Confidential Information of Discloser or permit it to be used for any purpose except to exercise its rights or perform its obligations under this Agreement; (iii) not alter or remove from any Confidential Information of Discloser any proprietary legend; and (iv) take measures to protect the confidentiality and security of the Confidential Information of Discloser that are no less stringent than the measures it takes to protect its own Confidential Information of comparable sensitivity.

(c) Exceptions to Confidentiality. Notwithstanding Section 11(b), Recipient may disclose Discloser's Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, Recipient promptly notifies Discloser in writing of such required disclosure and cooperates with Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the party's business; or (iii) in the case of Modem, to potential assignees, acquirers or successors of Modem if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Modem and to Modem's subcontractors and subprocessors in order to provide the Modem Offering, and provided that in all such instances any such Customer's Confidential Information remains subject to the confidentiality protections under this Agreement.

(d) Injunction and other equitable relief. Each of the parties acknowledge that disclosure of Discloser's Confidential Information or any other breach of this Section 11 may cause serious and irreparable damage and harm to Discloser and that remedies at law may be inadequate to protect against breach of this Agreement, and each party agrees that Discloser may seek injunctive relief for any breach of the provisions of this Section 11 and to the specific enforcement of the terms of this Section 11, in addition to any other remedy to which Discloser would be entitled.

(e) Return of Confidential Information. Upon written request by a Discloser or upon the termination or expiration of this Agreement, each party will promptly return to the other party or destroy all Confidential Information (excluding any Customer Data which is addressed at Section 14(d)) of the other party in its possession or control within a reasonable amount of time in accordance with Recipient's data destruction practices. Notwithstanding the foregoing, Modem may retain any electronically archived Customer's Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Section 11. Upon written request of Discloser, Recipient will certify in writing that it has complied with this Section 11.

12. Warranty; Disclaimer; Indemnity

(a) Mutual Warranties. Each party represents, warrants and covenants that: (i) it has full power and authority to enter into this Agreement; and (ii) it will comply with all applicable laws applicable to its provision, receipt, or use of the Modem Offering and Customer Data, as applicable.

(b) Customer Warranty. Customer represents and warrants to, and covenants with, Modem that: (i) Customer will comply with Section 4(A)(d)(iv); and (ii) without limiting Section 12(b)(i), Customer has, in respect of any Customer Data, provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws including privacy laws, to enable Modem to: (A) provide the Modem Offering, which may include transmissions by or to Modem and to or from all applicable third parties; and (B) otherwise exercise its rights under this Agreement, including under Section 8(a) and the Privacy Policy; (ii) Customer and its Permitted Users will comply with all applicable laws; (iii) Customer and Permitted Users are not named on any Canadian, U.S., or other list of persons or entities prohibited from receiving Canadian or U.S. exports, or from transacting with any Canadian; or U.S. entity and it is not a national of, or a company registered in, any jurisdiction in which the provision of the provision of the other party's goods or services is prohibited under Canadian, U.S., or other applicable laws; and (iv) Customer will comply with Section 15(j).

(c) DISCLAIMERS. SUBJECT TO AND EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN SECTION 12(A) OF THIS AGREEMENT, MODEM STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY DATA OR THIRD-PARTY SOFTWARE. MODEM DOES NOT WARRANT THAT THE MODEM OFFERING WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE MODEM OFFERING. THE MODEM OFFERING (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY MODEM TO CUSTOMER (INCLUDING ALL THIRD PARTY PRODUCTS AND SERVICES) ARE PROVIDED "AS IS" AND "AS AVAILABLE". TO THE EXTENT PERMITTED BY APPLICABLE LAW, MODEM HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, SECURITY, RELIABILITY, COMPLETENESS, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. MODEM EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION (INCLUDING ALL THIRD PARTY INFORMATION) PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER'S USE OF THE MODEM OFFERING (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, SOME INFORMATION MAY CONTAIN THE OPINIONS OF THIRD PARTIES, AND MODEM IS NOT RESPONSIBLE FOR THESE OPINIONS. YOUR DECISIONS MADE IN RELIANCE ON THE MODEM OFFERING, DATA, DOCUMENTATION OR YOUR INTERPRETATIONS OF DATA ARE YOUR OWN FOR WHICH YOU HAVE FULL RESPONSIBILITY. WE ARE NOT RESPONSIBLE FOR ANY DAMAGES RESULTING FROM ANY DECISIONS BY YOU OR ANYONE ACCESSING THE MODEM OFFERING THROUGH YOU MADE IN RELIANCE ON THE MODEM OFFERING, INCLUDING FINANCIAL, TAX AND ACCOUNTING, LEGAL, COMPLIANCE, OR ANY OTHER PROFESSIONAL ADVICE. YOU AGREE THAT YOU USE THE MODEM OFFERING AT YOUR OWN RISK IN THESE RESPECTS. YOU ARE SOLELY RESPONSIBLE FOR THE PREPARATION, CONTENT, ACCURACY AND REVIEW OF ANY DOCUMENTS, DATA, OR OUTPUT PREPARED OR RESULTING FROM THE USE OF THE MODEM OFFERING AND FOR ANY DECISIONS MADE OR ACTIONS TAKEN BASED ON THE DATA CONTAINED IN OR GENERATED BY THE MODEM OFFERING. MODEM WILL NOT BE LIABLE FOR ANY FAILURE TO STORE, OR FOR LOSS OR CORRUPTION OF CUSTOMER DATA. ARTIFICIAL INTELLIGENCE AND MACHINE LEARNING ARE RAPIDLY EVOLVING FIELDS OF STUDY. GIVEN THE PROBABILISTIC NATURE OF GENERATIVE ARTIFICIAL INTELLIGENCE, USE OF ANY OF MODEM PROPERTY MAY IN SOME SITUATIONS RESULT IN INCORRECT OUTPUT THAT DOES NOT ACCURATELY REFLECT REAL PEOPLE, PLACES, OR FACTS. CUSTOMER SHALL EVALUATE THE ACCURACY OF ANY OUTPUT AS APPROPRIATE FOR ITS USE CASE, INCLUDING BY USING HUMAN REVIEW OF THE OUTPUT AND CONTENT. DUE TO THE NATURE OF GENERATIVE ARTIFICIAL INTELLIGENCE, OUTPUT MAY NOT BE UNIQUE ACROSS USERS AND THE MODEM OFFERING OR ANY OTHER OF MODEM PROPERTY MAY GENERATE THE SAME OR SIMILAR OUTPUT FOR CUSTOMER OR A THIRD PARTY. OTHER CUSTOMERS MAY ALSO ASK SIMILAR QUESTIONS AND RECEIVE THE SAME RESPONSE. RESPONSES THAT ARE REQUESTED BY AND GENERATED FOR OTHER USERS ARE NOT CONSIDERED CUSTOMER'S CONTENT.

(d) Indemnities. (A) Modem Indemnity. Modem will indemnify, defend, and hold harmless Customer and its officers, directors, employees, and agents (each, a "Customer Indemnitee") from and against any and all losses, damages, Claims, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers ("Losses") incurred by a Customer Indemnitee arising out of or relating to any actual, threatened or potential civil, criminal, administrative, regulatory, arbitral or investigative demand, allegation, action, suit, investigation or proceeding or any other claim or demand ("Claims") by a third party (other than an affiliate of a Customer Indemnitee) that arise from or relate to any allegation that the Modem Platform infringes any third party Intellectual Property Rights. The foregoing obligation does not apply to any Claims or Losses arising out of or relating to any: (A) incorporation of the Modem Platform into, or any combination, operation, or use of the Modem Platform with, any products or services not provided or authorized by Modem; (B) Modification of the Modem Platform other than by Modem or with Modem's express written approval; (C) unauthorized use of the Modem Platform; (D) Content, third party products, Third-Party Services, Agents, or Outputs; or (E) Losses covered by the Customer's indemnity obligations in Section 12(d)(C).

THIS SECTION 12(d)(A) IS MODEM'S SOLE AND EXCLUSIVE LIABILITY, AND ANY CUSTOMER INDEMNITEE'S SOLE AND EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.

(B) If the Modem Platform is, or in Modem's opinion is likely to be, claimed to infringe, misappropriate, or otherwise violate any third party Intellectual Property Rights, or if Customer's use of the Modem Platform is enjoined or threatened to be enjoined, Modem may, at its option and sole cost and expense: (i) obtain the right for Customer to continue to use the Modem Platform materially as contemplated by this Agreement; (ii) modify or replace the Modem Platform, in whole or in part, to seek to make the Modem Platform (as so modified or replaced) non-infringing, in which case such Modifications or replacements will constitute the Modem Platform under this Agreement; or (iii) if Modem determines that neither of the foregoing two options are reasonably available, then this Agreement may be terminated by Modem and Modem's sole liability, in addition to the indemnification obligations herein, will be to refund prepaid unused Fees attributable to the Modem Platform that were to be provided after the effective date of termination.

THE FOREGOING IS IN LIEU OF ANY REPRESENTATION, COVENANTS OR WARRANTIES OF NONINFRINGEMENT, WHICH ARE DISCLAIMED.

(C) Customer Indemnity. Customer will defend, indemnify and hold harmless Modem, its affiliates, subsidiaries and each of their respective directors, officers, employees, subcontractors and other representatives (each, a "Modem Indemnitee") from and against any and all Losses incurred by a Modem Indemnitee arising out of or relating to any Claim by a third party (other than an affiliate of a Modem Indemnitee) that arise from or relate to: (i) Customer Property; (ii) unauthorized use of the Modem Offering by Customer or any of its Permitted Users; (iii) Customer's breach of Sections 4, 12(a)(i), 12(b), or 15(j); (iv) Customer's business operations; or (v) use of the Modem Offering by Customer or any of its Permitted Users in combination with any unauthorized third party software, application or service.

(D) Indemnification Procedure. Each party will promptly notify the other party in writing of any Claim for which such party believes it is entitled to be indemnified pursuant to this Section 12(d). The party seeking indemnification (the "Indemnitee") will cooperate with the other party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor will promptly take control of the defense and investigation of such Claim (although the Indemnitor will not settle any Claim without the Indemnitee's prior written consent) and will employ counsel of its choice to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this Section 12(d)(D) will not relieve the Indemnitor of its indemnity obligations under this Section 12(d) except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

13. Limitation of Liabilities

The parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:

(a) AMOUNT. EXCEPT FOR EITHER PARTY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, CUSTOMER'S INDEMNIFICATION OBLIGATIONS IN SECTION 12(d)(C) (CUSTOMER INDEMNITY), MODEM'S INDEMNITFIATION OBLIGATIONS IN SECTION 12(d)(A) (MODEM INDEMNITY), CUSTOMER'S BREACH OF SECTIONS 4 (RESTRICTIONS ON USE; CUSTOMER RESPONSIBILITIES), 12(a)(i), 12(b) (CUSTOMER WARRANTY) OR 15(j) (EXPORT RESTRICTIONS), CUSTOMER'S LIABILITY FOR UNPAID FEES, AND EITHER PARTY'S BREACH OF SECTION 11 (CONFIDENTIAL INFORMATION) (PROVIDED THAT MODEM'S TOTAL AGGREGATE LIABILITY FOR A BREACH OF SECTION 11 RESULTING IN ANY LOSS, THEFT,UNAUTHORIZED ACCESS TO OR DISCLOSURE OF PERSONAL INFORMATION BEING PROCESSED BY MODEM ON BEHALF OF CUSTOMER WILL BE LIMITED TO THE LIABILITY CAP), IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY (OR ANY OF ITS THIRD PARTY PROVIDERS) TO THE OTHER PARTY IN CONNECTION WITH OR UNDER THE AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER FOR THE MODEM OFFERING IN THE PRIOR 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM ("LIABILITY CAP"). FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THE AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL MODEM'S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THE AGREEMENT.

(b) TYPE. EXCEPT FOR EITHER PARTY'S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD, CUSTOMER'S INDEMNIFICATION OBLIGATIONS IN SECTION 12(d)(C) (CUSTOMER INDEMNITY), MODEM'S INDEMNITFIATION OBLIGATIONS IN SECTION 12(d)(A) (MODEM INDEMNITY), CUSTOMER'S BREACH OF SECTIONS 4 (RESTRICTIONS ON USE; CUSTOMER RESPONSIBILITIES), 12(a)(i), 12(b) (CUSTOMER WARRANTY) OR 15(j) (EXPORT RESTRICTIONS), CUSTOMER'S LIABILITY FOR UNPAID FEES, AND EITHER PARTY'S BREACH OF SECTION 11 (CONFIDENTIAL INFORMATION) (PROVIDED THAT MODEM'S TOTAL AGGREGATE LIABILITY FOR A BREACH OF SECTION 11 RESULTING IN ANY LOSS, THEFT,UNAUTHORIZED ACCESS TO OR DISCLOSURE OF PERSONAL INFORMATION BEING PROCESSED BY MODEM ON BEHALF OF CUSTOMER WILL BE LIMITED TO THE LIABILITY CAP), TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL A PARTY (OR ITS THIRD PARTY PROVIDERS) BE LIABLE TO THE OTHER PARTY OR ANY PERMITTED USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THE AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.

(c) THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING QUEBEC, DO NOT ALLOW THE LIMITATION OF LIABILITY FOR CERTAIN DAMAGES AND CERTAIN DISCLAIMERS. IF THESE LAWS APPLY YOU, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY AND YOU MAY HAVE ADDITIONAL RIGHTS.

14. Term and Termination

(a) Term; Subscription Term. The term of these Terms of Service will begin on the Effective Date and will remain in effect unless earlier terminated in accordance with these Terms of Service (the "Term"). The term of the Order Forms are conterminous with the Subscription Term. Subscriptions to the Modem Platform commences on the Subscription Start Date set out in an applicable Order Form and continues for the Subscription Term as set forth in the Order Form. Except as otherwise specified in such Order Form, Subscriptions to the Modem Platform will automatically renew for additional 12 months periods, unless and until either party gives the other notice of non-renewal at least thirty (30) days prior to the end of the then-current Subscription Term. Any new Order Forms executed by the arties after the Subscription Start Date of the first Order Form agreed by parties in respect of the Modem Platform will be conterminous with and expire on the Subscription Term of the first Order Form agreed to by the parties. "Subscription Start Date"means the date for the commencement of the Subscription to the Modem Platform as set out in the Order Form. "Subscription Term" means the subscription term of each subscription to the Modem Platform as specified in the Order Form as renewed in accordance with Section 14(a).

(b) Termination for Breach. (i) Either party may terminate this Agreement immediately on written notice if: (A) the other party breaches or defaults on any of the material terms or conditions of this Agreement (including Customer's payment obligations under Section 10) and fails to cure such breach or default within 30 days of receipt of written notice thereof; except that, in the event of any breach that is incapable of being cured, such termination will be effective immediately; (B) the other party makes any assignment for the benefit of creditors or is unable to pay its debts as they mature in the ordinary course of business; or (C) any proceedings are instituted by or against the other party under any insolvency laws or for reorganization, receivership or dissolution. (ii) Notwithstanding the foregoing, Modem may terminate this Agreement immediately upon written notice: (A) if Modem reasonably believes that continued provision of any Modem Offering would violate applicable law(s); (B) if required by appliable laws; (C) Customer breaches or violates Sections 4, 12(a)(i), 12(b), or 15(j); or (D) as otherwise provided in this Agreement.

(c) Termination for Convenience. Customer may stop accessing or using the Modem Offering at any time. Subject to any financial commitments (including Fees) in an Order Form, Customer may terminate this Agreement for its convenience at any time on prior written notice and, upon termination, must cease use of the applicable Modem Offering. Modem may terminate this Agreement or any applicable Order Form for its convenience at any time with 30 days prior written notice to Customer. If Customer terminates the Agreement pursuant to this Section 14(c) (Termination for Convenience), Customer is not entitled to any refund of prepaid Fees and Customer will pay all Fees for the remainder of the then current Subscription Term and Term (as applicable). If Modem terminates this Agreement pursuant to this Section 14(c) (Termination for Convenience), Modem will refund Customer any prepaid unused Fees. For greater certainty, if you continue to use any portion of the Modem Offering that is publicly available after this Agreement has been terminated, this Agreement will continue to apply to the extent of such use

(d) Effect of Termination. Upon the effective date of the expiration or termination of this Agreement ("Termination Effective Date"): (i) all Order Forms also terminate; (ii) Customer will immediately cease (and ensure that all its Permitted Users immediately cease) accessing or using the Modem Platform; (iii) all Fees due and payable and any amounts due to Modem are immediately due and are to be immediately paid by Customer to Modem. No expiration or termination will affect Customer's obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund; and (iv) if Customer requests in writing at least 30 days prior to the Termination Effective Date and provided that Customer has paid all Fees due and payable as at the Termination Effective Date, Modem will make all Customer Data available to Customer for electronic retrieval for a period of 30 days. Following such 30-day period Modem will delete any Customer Data that remains in the hardware or systems used by Modem to provide the Modem Offering. Notwithstanding anything to the contrary in this Agreement, Modem may retain Customer Data to the extent and so long as required by applicable law and Modem may retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course, provided that all such Customer Data will remain subject to all confidentiality requirements of this Agreement.

(e) Survival. The following Sections, together with any other provision of the Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of the Agreement, will survive expiration or termination of the Agreement for any reason: Section 7 (Ownership; Reservation of Rights), Section 8 (Privacy), Section 10 (Fees and Payment), Section 11 (Confidential Information), Section 12 (Warranty; Disclaimer; Indemnity), Section 13 (Limitation of Liabilities), 14(d) (Effect of Termination), Section 14(e) (Survival), and Section 15 (General Provisions).

15. General Provisions

(a) Notices. All notices shall be in writing by email and will be effective upon the day of sending by email. Notices will be sent: (i) if to Modem, to the following email address: support@modem.dev (ii) if to you, to the current email address that Modem has on file with respect to you. Modem may change its contact information by posting the new contact information on its Site, through the Modem Platform or by giving notice thereof to you. You are solely responsible for keeping your contact information on file with Modem current at all times during the Term.

(b) Assignment. Customer will not assign or transfer this Agreement, or transfer or subcontract any of its rights or delegate any of its obligations under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Modem. Any purported assignment or delegation by Customer to any third party in violation of this Section will be null and void. Modem may assign any of its rights, or delegate any of its obligations, under this Agreement to any third party without the consent of Customer. This Agreement enures to the benefit of and is binding upon the parties and their respective successors and permitted assigns.

(c) Governing Law and Attornment. This Agreement and any Claim related thereto will be governed by and construed in accordance with the laws of the Province of Ontario and the applicable federal laws of Canada, without regard to conflicts of law principles. The parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. Notwithstanding the foregoing: (i) Modem may seek remedies to collect unpaid Fees from Customer; and (ii) a party may seek remedies with respect to a violation of its Intellectual Property Rights or Section 11 (Confidential Information), in any appropriate jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.

(d) Construction. Except as otherwise provided in this Agreement, the parties' rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms "include" and "including" mean, respectively, "include without limitation" and "including without limitation." The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms "consent" or "discretion", when used in respect of a party in this Agreement, mean the right of such party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other party. The language used in this Agreement is the language chosen by the parties to express their mutual intent, and no rule of strict construction will be applied against any party.

(e) Force Majeure. Neither party will be liable for delays caused by any event or circumstances beyond Modem's reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving Modem's employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites ("Force Majeure Event"). This Section does not apply to any of Customer's obligations under Sections 10 (Fees and Payment). In the event of any failure or delay caused by a Force Majeure Event, the affected party will give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

(f) Severability. Any provision of the Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from the Agreement and all other provisions of the Agreement will remain in full force and effect.

(g) Waiver. A waiver of any provision of the Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.

(h) Independent Contractors. Modem's relationship to Customer is that of an independent contractor, and neither party is an agent, employee or partner of the other. Neither party will have, and will not represent to any third party that it has, any authority to act on behalf of the other party.

(i) Entire Agreement. The Agreement constitutes the entire agreement between the parties with respect to the subject matter of the Agreement and supersedes all prior or contemporaneous agreements, representations or other communications, whether written or oral. For clarity, any terms and conditions appearing on a purchase order or similar document issued by Customer, or in Customer's procurement, invoicing, or vendor onboarding portal: (i) do not apply to the Modem Offering; and (ii) do not override or form a part of this Agreement. If there is a conflict among the documents that make up the Agreement, then the documents will control in the following order (of decreasing precedence) as relevant to the subject matter of the conflict: (i) these Terms of Service; (ii) the applicable Order Form; and (iii) the Documentation.

(j) Export Restrictions. Neither Customer nor any of its Permitted Users are listed under any Canadian economic sanctions law or regulation or owned or controlled by any such person. Customer will not allow access to the Modem Offering other than in accordance with the terms of this Agreement. Customer will comply with all economic sanctions and export control laws and regulations under applicable law that may apply to its access to or use of the Modem Offering. Modem makes no representation or warranty that the Modem Offering may be exported without Customer first obtaining appropriate licenses or permits under applicable law, or that any such license or permit has been, will be, or can be obtained.

(k) Third Party Beneficiaries. Except for our licensors and Indemnitees herein, nothing contained in this Agreement, expressed or implied, is intended to confer on any person other than the parties hereto or their respective successors and permitted assigns, any rights, remedies, obligations or liabilities pursuant to, or by reason of, this Agreement.

(l) Further Assurances. Each party will, from time to time, execute and deliver all such further documents and instruments and do all acts and things as the other party may reasonably require to effectively carry out or better evidence or perfect the full intent and meaning of this Agreement.

(m) Customer Lists. Modem may identify Customer by name and logo as a Modem customer on the Site and on other promotional materials. Any goodwill arising from the use of Customer's name and logo will inure to the benefit of Customer.

(n) Relationship of the Parties. Modem's relationship to Customer is that of an independent contractor. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other party in any respect.

(o) English Language. The parties confirm that the essential stipulations of this Agreement reflect the mutual agreement of the parties further to negotiation, and were not imposed by either party, even when drawn up by one of the parties. The parties further confirm that it is the express wish of all parties that this Agreement, all documents related to this Agreement and all communications between the parties in the context of the performance of this Agreement be in English only. Les parties confirment que les stipulations essentielles de la présente entente reflètent le résultat de discussions libres de gré à gré et n'ont pas été imposées par l'une ou l'autre des parties, même lorsque rédigées par l'une des parties. Les parties confirment également que c'est la volonté expresse des parties que la présente entente, tout document s'y rattachant et toute communication entre les parties dans le cadre de l'exécution de cette entente soient uniquement en anglais.