Last Updated April 13, 2021

Modzy® End User License Agreement

This End User License Agreement (“Agreement”) entered into by and between Booz Allen Hamilton Inc. (“Modzy,” “we,” “us,” or “our”) and You (“Customer” or “You” or “you”) (collectively, “Parties”) is effective as of You selecting the Agreement acknowledgment box and clicking “I Agree” or its equivalent, on the Modzy.com website or as otherwise agreed to by the parties in writing (“Effective Date”). You acknowledge that you have read and agree to all of the terms and conditions of this Agreement. If you do not have authority to enter into this Agreement or do not agree to the terms, do not click your approval or use the Modzy Software.

  1. Modzy® Software

The Modzy Software is an enterprise AI software platform and model marketplace allowing users to access, evaluate, deploy, embed and manage artificial intelligence (AI) models provided by Modzy and its Model Suppliers (each an “AI Model” or “Model”) and upload their own models for management and governance. Modzy includes pre-trained AI models from Modzy and third-party machine learning companies (each a “Model Provider”). For purposes of this Agreement, Modzy Software shall also include all user guides, training materials, or other documentation provided by Modzy.

  1. Software Deployment

The Modzy Software will either be (i) delivered to you or made available by us for download by you for your use at your facility(ies) or (ii) accessed by you from your facility(ies) via the Internet (both collectively the “Custom Deployment”). Modzy can be made available for deployment to your development, test, and production environments.

  1. License Period

The license term or subscription term for the Modzy Software and the Models shall begin on the date the Modzy Software license key is transmitted to you (the “Software Effective Date”).  Such period might be for a short evaluation period, trial, pilot, a multi-year subscription period, or some combination of the above.

  1. Quote            

The Quote issued by us to you may include, but not be limited to (a) the Deployment method for the Modzy Software, (b) the Models you would like to access and use, (c) the length of the License Period for the Modzy Software and Models, (d) the fees to be paid by you for your license to access and use the Modzy Software and Models, (e) the facility(ies) where you will access and use the Modzy Software and Models, (f) Modzy Software deployment add-ons, (g) the number of processing engines being made available, or (h) such other information contemplated by this Agreement. Each Quote will be signed or agreed to electronically agreed by You through clicking your approval on the Modzy.com website.

  1. Software License

Provided that you have paid the applicable fees (if any), we grant to you a limited‑use, non-exclusive, non-transferable, revocable, personal, non-sublicensable license, during the applicable License Period to either: (i) reproduce a single copy of the Modzy Software for production use at the facility(ies) set forth in the Quote and a copy for backup purposes and (b) use the Modzy Software at such facility(ies), or (ii) access and use the Modzy Software via the Internet through an instance of a hosted cloud provider that meets or exceeds Modzy provided technical requirements,

You understand that (i) the Modzy Software and all intellectual property rights therein are owned by Modzy, (ii) the Modzy Software is licensed, and not sold to you, and (iii) the AI Models available via the Modzy Software are owned by us, by the Model Providers, or by third party open source content creators and are licensed and not sold to you. You obtain no rights in or to the Modzy Software, other than the limited license set forth above in this paragraph.

You acknowledge that the Modzy Software may contain mechanisms that manage the Modzy Software environment and the runtime conditions. Unless otherwise noted in the Quote, the Modzy Software does not limit the number of users from your organization or Models that may be added to the Modzy Software.  

Further, You acknowledge that the Modzy Software is commercial off the shelf software and is made available under an early access program, and:  (i) may not be fully functional, may contain errors or design flaws, may have security, privacy, accessibility, availability, and reliability standards that do not meet your requirements or industry standards or are not as stated in the documentation, and (ii) use of the Modzy Software may result in unexpected results, loss of data, project delays or other unpredictable damage or loss.

The license granted in this section is strictly for the version of the Modzy Software or Updates specified in the Quote, or that we decide to provide for no additional fee and provide or made available to You by Modzy during the License Period.

  1. Access to Models

Access to or use of a Model is subject to the Model End User License Terms in Exhibit A (the “Model License”) which is between you and the Model Provider providing the specific Model via the Modzy Software.  With respect to Models provided by any Model Provider other than us, (i) the Model License is between you and the Model Provider, (ii) we are not a party to the Model License, and (iii) we will not have any obligations or liabilities to you under the Model License.  Models are licensed to you pursuant to the Model License.

If technical problems prevent or unreasonably delay our delivery of or access to a Model for which you have paid the applicable fees, and such technical problem(s) or delay(s) are determined to be caused by us, Modzy will use commercially reasonable efforts to repair, modify, or replace the Model so that it can be accessed. If such repair, modification, or replacement is not commercially reasonable as determined by Modzy in its sole discretion, your exclusive and sole remedy is a refund of the fees paid for such Model on a pro-rated basis.  From time to time, Modzy may refuse a refund request if we find evidence of fraud, refund abuse, legal prohibition or other manipulative behavior that entitles Modzy to a corresponding counterclaim, all as determined by Modzy.

You acknowledge that (a) the availability of certain Models and certain features of one or more Models or the Modzy Software might be restricted and (b) not all Models or features of the Models or of the Modzy Software may be available to you, even if such Model is listed in our marketplace of available Models.

Modzy is not responsible for and does not endorse or make any representations, warranties or guarantees regarding any Models, including without limitation your Models, Models that are from Modzy or Models from third party Model Providers.

  1. Privacy; Data            

Your use of the Modzy Software and the Models and the personal information you provide to us in connection with this Agreement is subject to Modzy’s Privacy Policy, which is available at https://www.modzy.com/privacy/.

Notwithstanding anything to the contrary, you agree that Modzy has the right, without liability to you, to disclose any data and/or information that you provide to us or that we process for you in connection with your use of or access to the Modzy Software or Models to law enforcement authorities, government officials, and/or a third party, as Modzy believes is reasonably necessary or appropriate to comply with applicable law or to enforce and/or verify compliance with any part of this Agreement (including but not limited to Modzy’s right to cooperate with any legal process relating to your use of the Modzy Software and/or Models, and/or a third-party claim that your use of the Modzy Software and/or Model is unlawful and/or infringes such third party’s rights).

Customer agrees to the privacy-related terms in Exhibit B.

You will not provide any access to, or transfer to us, any personal data or information, classified data, data which applicable law prohibits you from providing to us, protected health information, nonpublic personal information, and personally identifiable information (as such terms are defined in applicable data protection laws), except for protected data related to your users that work with us in connection with the performance of this Agreement (“User Information”) as requested by Modzy, including without limitation in order to provide you access to the Modzy Software. You represent and warrant that any User Information provided to Modzy is authorized. Modzy may access, use and transfer such User Information as provided in this Agreement and the Privacy Policy, including without limitation for purposes of fulfilling our obligations and exercising our rights under this Agreement, providing information to you for promotional and marketing purposes, and complying with our legal and auditing requirements.

Modzy may compile certain statistical information in the aggregate related to the performance of the Modzy Software. Such information will not include any of your identifiable or confidential information. Modzy retains all rights and ownership in such aggregated statistical information.

MODZY SHALL USE REASONABLE EFFORTS TO PROTECT INFORMATION SUBMITTED BY YOU IN CONNECTION WITH THE MODZY SOFTWARE, BUT YOU AGREE THAT YOUR SUBMISSION OF SUCH INFORMATION IS AT YOUR SOLE RISK, AND YOU HEREBY RELEASE MODZY FROM ANY AND ALL LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY LOSS OR LIABILITY RELATING TO SUCH INFORMATION IN ANY WAY.

  1. Customer System

Based on your deployment of the Modzy Software, you are responsible for either (a) obtaining, deploying and maintaining all computer hardware, software, modems, routers and other communications equipment necessary for you to access and use the Modzy Software and Models or (b) contracting with third party ISPs, telecommunications and other service providers to access the Modzy Software and Models via the Internet. You are responsible for paying all third-party fees and access charges incurred in connection with the preceding when applicable. We shall not be responsible for supplying any hardware, software (other than the Modzy Software) or other equipment to you under this Agreement.

  1. Fees; Invoicing; Taxes

Access to Models and our Modzy Software may be at no cost to you, or may be subject to a license, service hosting, or subscription fee (each a “Fee”) that you must pay to us in order access or use the Modzy Software, deployment add-ons, any Model, or receive support services.  The Fees, if any, will be set forth in the Quote.

If applicable, Modzy will charge all Fees and any applicable taxes to your selected payment method which must be from the then-current payment methods that we offer. If we cannot charge your selected payment method for any reason (such as expiration or insufficient funds), you remain responsible and liable for any uncollected amounts, and we will attempt to charge the payment method again as you update your payment method information. In accordance with local law, Modzy may update information regarding your selected payment method if provided such information is provided by your financial institution.  The payment of all Fees are final and Fees are non-refundable once paid, except for refunds expressly contemplated by this Agreement. 

The Fees payable for Models, the Modzy Software, support services, and deployment add-ons may be changed by us at any time and such change will become applicable to You following the end of the then current License Period or support period.  

Modzy will invoice you the Fees for access to the Modzy Software, Models, applicable Cloud Hosting Services (as defined in Exhibit D), and any support services that we provide to you. All Fees and amounts due to Modzy shall be payable in full thirty (30) days from the date of the invoice.  

If you do not pay Fees when due, then you agree that you will pay a late fee of 1.5% per month (or, if applicable, the maximum amount permitted by law, whichever is less) on all amounts not paid when due from the due date until paid in full.  In addition, you will reimburse us for all collections-related costs and expenses incurred by us collecting past due amounts from you, including without limitation reasonable attorneys’ fees and collection agency fees.

All amounts payable listed in the Quote are exclusive of sales, use, service, value added or like taxes or customs duties, and You expressly agree that You will be responsible for any such applicable taxes, including without limitation, any sales, use, service, value added taxes (VAT) or other indirect taxes in the country or jurisdiction in which the products are provided or invoiced. Such taxes and duties, when applicable, will be added to Modzy’s invoices. In the event the applicable taxes are not added to Modzy’s invoices, You shall self-assess / use the reverse-charge mechanism to the extent available under local law.

  1. Access Rules            

Your use of the Modzy Software and Models must follow the rules set forth in this section (“Access Rules”). Any other use of the Modzy Software and Models is a material breach of this Agreement. You agree, during the term of this Agreement and for a period of three (3) years following the termination of this Agreement, to keep accurate and complete records relating to your usage of the Modzy Software and Models, including, but not limited to the audit logs generated by the Modzy Software which audit logs record information regarding your use of the Modzy Software and the Models and other information necessary to demonstrate your compliance with this Agreement (“Records”). You shall not (i) modify, disable or tamper with the Records or the audit logs or (ii) otherwise prevent or hinder us from being able to access and review the audit logs or Records. You agree that we may access the audit logs at any time with or without notice to you.

Within ten (10) days following our written request, you will certify to Modzy in writing after due inquiry that your use of the Modzy Software and Models complies with the terms of this Agreement and will provide us any Records we specify in such request.

In addition, during the term of this Agreement and for a period of three (3) years following the termination of this Agreement, within ten (10) days following our written request, we may audit your Records and your use of the Modzy Software and Models at your applicable facility(ies) during normal business hours and subject to your reasonable facility security requirements.  If any such audit reveals an underpayment of the Fees due us or any breach of this Agreement, then you agree to promptly pay such Fees and reimburse us for the reasonable cost of the audit.

You agree that you will not use the Modzy Software at any facility(ies) other than the facility(ies) identified in the Quote.

You shall not on your own, or permit or assist any person or entity to: (i) alter, modify, or make derivative works of the Modzy Software or Models; (ii) reverse engineer, reverse assemble, decompile, disassemble or otherwise attempt to derive source code or algorithms for or from, the Modzy Software, the Models or any portion of either; (iii) install, access, or use, or allow the installation, accessing, or use of, the Modzy Software or Models for any unfair or deceptive practices or in contravention of any federal, state, local, foreign, or other applicable laws, or rules and regulations of regulatory or administrative organizations; (iv) act in a fraudulent, tortious, malicious, or negligent manner when using the Modzy Software or Models; (vi) rent, lease, sell, license, share, or remarket the Modzy Software or Models or provide access to the Modzy Software or Models to any third party (unless authorized in writing by us in each case), (vii) use the Modzy Software or Models for any commercial purpose without Modzy’s express written permission; (viii) introduce in or to the Modzy Software or Models any malicious code, malware, harmful code, or implement a denial of service attack or introduce or implement any other code or routine which results in disruption or damage to the Modzy Software or Models; (ix) use or otherwise allow the Modzy Software or Models to be used for any unlawful or criminal purpose or (x) post or utilize inappropriate, violent, nude, sexually suggestive, discriminatory, unlawful, infringing, or offensive pictures or photographs or other content when using the Modzy Software or Models.  

For clarity, you are responsible and liable for (a) all acts and omissions of your employees and users that access or use the Modzy Software and/or Models and (b) all activities that occur or are related to your account with us, including without limitation those activities that occur with your user name, user IDs, passwords or other credentials (collectively, “Credentials”).

  1. Passwords; Security

If your Custom Deployment of the Modzy Software uses the issuing of Credentials to access and use the Modzy Software and/or Models, you shall be responsible for, and shall ensure that each of your users are, maintaining the confidentiality of all Credentials and ensuring that each Credential is used only by the user to which it was issued.  You shall restrict your users from sharing Credentials.  We shall have no liability for any loss or damage arising from your failure to comply with the terms set forth in this Section.

You shall not and shall ensure that your users do not circumvent or otherwise interfere with any user authentication or security applicable to the Modzy Software.  You will immediately notify us of any breach, or attempted breach, of security known to you. 

  1. Intellectual Property

You agree that the Models and the Modzy Software including, but not limited to, graphics, user interface, audio clips, video clips, editorial content, and the scripts and software used to implement the Models and Modzy Software, contain proprietary information and material that is owned by Modzy and/or Model Providers and their licensors, and is protected by applicable intellectual property and other laws including, but not limited to, trade secret law, copyright law, and patent laws (collectively, “Proprietary Information”).  Proprietary Information includes all information that we disclose or make available to you regarding the Modzy Software and Models.

You will not (i) use any Proprietary Information in any way whatsoever except as part of your authorized use of the Modzy Software and Models for noncommercial uses in compliance with this Agreement and (ii) disclose any Proprietary Information to any third party other than those of your employees with a need to know in connection with your authorized use of the Modzy Software and Models for noncommercial uses in compliance with this Agreement.  You will use the same degree of care to protect and secure the Proprietary Information as you use for your confidential and proprietary information, but in no event less than a reasonable standard of care.

No portion of the Modzy Software or Models shall be reproduced by you in any form or by any means, except as expressly permitted by this Agreement. You agree not to modify, rent, loan, sell, or distribute the Modzy Software or Models in any manner, and you shall not exploit the Modzy Software or Models in any manner not expressly authorized in this Agreement.

You agree that any unauthorized use or disclosure of our Proprietary Information may cause immediate and irreparable injury to us, would be a material breach of this Agreement, and, in the event of such breach, we will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.

All right, title and interest in the Modzy Software, the Models, and all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by you regarding the Modzy Software and the Models, including without limitation all copyright rights, patent rights and other intellectual property rights in each of the foregoing, belong to and are retained solely by us, the Model Providers or our, or their, licensors and providers, as applicable.  You may periodically provide us with feedback regarding your use of the Modzy Software and/or the Models, the functionality of the Modzy Software and the Models, any bugs, errors or deficiencies that you encounter regarding the operation and functionality of the Modzy Software and the Models, and suggestions that you may have regarding improvement of such operation and functionality (collectively, “Feedback”).  You agree to promptly respond to any questions that we may have regarding such Feedback or to any other questions we may have regarding your use of the Modzy Software and the Models.  You hereby do and will irrevocably assign to us all Feedback and all intellectual property rights in the Feedback. You acknowledge that Modzy is under no obligation to use or include any Feedback, including without limitation in any Model or in the Modzy Software.

  1. International Trade Laws

You will comply with all export control, customs, sanction and embargo, and other applicable regulations or international trade (“International Trade Laws and Regulations”) in connection with your access to or use of the Modzy Software and the Models, including but not limited to, the U.S. International Traffic in Arms Regulations (“ITAR”), 22 C.F.R. Parts 120-130, the Export Administration Regulations (“EAR”), 15 C.F.R. Parts 730-771, and regulations issued by the Office of Foreign Assets Control (“OFAC”), 31 C.F.R. Parts 501-598, as applicable, and the International Trade Laws of the jurisdiction in which the Modzy Software or Models were accessed or used, or to which the Modzy Software or Models were sent.  You shall not export or re-export or otherwise use the Modzy Software or any Model, except in compliance with International Trade Laws and Regulations.  In particular, but without limitation, the Modzy Software and Models may not be exported or re-exported (a) into any U.S.-embargoed countries or territories or (b) to anyone on the U.S. Treasury Department’s Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List or (c) to any end user or for any end use prohibited by Part 744 of the EAR, including, without limitation, the development, design, manufacture, or production of nuclear, missile, or chemical or biological weapons.  By downloading, accessing or using the Modzy Software, you represent and warrant that you are not located in any country or territory subject to an OFAC embargo, nor are your directors, officers, employees, direct or indirect subsidiaries, patent companies or any other affiliates the subject of any OFAC blocking or sanctions measures or identified in any restricted party or debarment list maintained pursuant to the ITAR or EAR.  Nothing in this Agreement will be construed as requiring a party to perform an activity that would cause a violation of International Trade Laws and Regulations.

  1. Termination/Suspension

If you fail, or Modzy suspects that you have failed, to comply with any of the provisions of this Agreement, Modzy may, without notice to you: (i) terminate or suspend your license and access to the Modzy Software and Models, and you will remain liable for all amounts due up to and including the date of termination; and/or (ii) preclude your access to the Modzy Software or specific Models. In addition, Modzy may, at its sole discretion, with or without notice, terminate the Agreement, and/or terminate or suspend your license to any Model or the Modzy Software for any or no reason if we feel that doing so is necessary: (i) to comply with local, state, U.S. Federal, or international     law; (ii) to preserve security and/or integrity of the Modzy Software or any Model; (iii) to ensure the rights of others are not infringed; (iv) to preserve national or international security; or (vi) for a force majeure event that continues for ten (10) days or more.

If we determine that you have been using the Modzy Software or Models for illegal or potentially illegal purposes, we reserve the right to notify and cooperate with applicable law enforcement entities.

Modzy further reserves the right by written notice to you to discontinue the Modzy Software at any time and, in such event, this Agreement shall terminate at the end of the then‑current License Period. 

In addition, we may discontinue the availability of any Model at any time.  If you are currently using a discontinued Model, we will provide written notice to you of the discontinuance and, in such event, your access to and use of the Model will terminate at the end of the applicable License Period for that Model.  Modzy will not be liable to you or to any third party should Modzy exercise such right to discontinue the Modzy Software and/or one or more Models.

Upon termination of this Agreement all licenses granted to you will terminate and you will destroy and erase all copies of the Modzy Software and Models that are in your possession or under your control and at our request certify in writing your compliance with the foregoing obligation.

For clarity, the termination of this Agreement shall not relieve you of any liability accruing prior to or after the termination of this Agreement.

The following terms shall survive the termination of this Agreement: the Sections titled “Privacy; Data,” “Fees; Invoicing; Taxes,” “Intellectual Property,” “International Trade Laws,” “Termination/Suspension,” “Disclaimer of Warranties,” “Indemnity,” “Infringement Indemnity,” “Limitation of Liability,” “Feedback,” “Governing Law,” “Other Provisions,” and “Entire Agreement.”

  1. Escrow

Upon your request and at your expense, Modzy will work with you to develop an escrow agreement in order to ensure that your use of the Modzy Software during the License Period is not impeded in the case of Booz Allen’s bankruptcy or the discontinuance of the Modzy Software product. The assignment of this Agreement will not trigger the release of the Modzy Software from escrow.

  1. Updates & Technical Support

During the License Period, You shall be entitled to receive Technical Support and Updates (as defined below) as and when we make Updates generally available to our other customers of the Modzy Software and Models.  For purposes of this Agreement, “Update” means any bug-fix, workaround and/or minor enhancement to the Modzy Software or Models made generally available for no additional fee by Modzy to its customers at Modzy’s sole discretion from time to time, and the term “Update” does not include any new release or product marketed and licensed by Modzy as a new release of the Modzy Software or any Model.  You agree that you will implement each Update as soon as possible after receipt of access to the Update and will cease using the prior version of the Modzy Software or Model, as the case may be. “Technical Support” means a subscription to Modzy’s then current technical support policy and procedure for the Modzy Software and Models that shall be listed in your Quote. A copy of the current Modzy Software Technical Support Policy is attached to this Agreement as Exhibit C.

Subject to your payment of the applicable Fees set forth in a Quote, we will provide to you the configuration and other support services specified in the Quote, subject to the terms in this Agreement and any special terms and conditions set forth in the Quote.  The payment terms for such Fees will be the terms in this Agreement unless different payment terms are specified in the Quote, in which case the payment terms for such configuration and support Fees will be the payment terms in the Quote.

  1. Cloud Hosting Service

To the extent that Modzy’s performance under the Agreement includes the provisioning of Cloud Hosting Service on your behalf to host Modzy and Models, Exhibit D shall apply to this Agreement.

  1. Disclaimer of Warranties

MODZY DOES NOT GUARANTEE, REPRESENT, OR WARRANT THAT YOUR USE OF THE MODZY SOFTWARE OR MODELS WILL BE UNINTERRUPTED OR ERROR-FREE.

YOU EXPRESSLY AGREE THAT YOUR USE OF, OR INABILITY TO USE, THE MODZY SOFTWARE AND MODELS IS AT YOUR SOLE RISK. THE MODZY SOFTWARE AND ALL MODELS DELIVERED OR MADE AVAILABLE TO YOU THROUGH THE MODZY SOFTWARE ARE PROVIDED “AS IS” AND “AS AVAILABLE,”WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.

MODZY DOES NOT REPRESENT OR WARRANT THAT THE MODZY SOFTWARE OR MODELS WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING, OR OTHER SECURITY INTRUSION, AND YOU HEREBY RELEASE MODZY AND THE MODEL PROVIDER FROM ANY LIABILITY RELATING THERETO. YOU SHALL BE RESPONSIBLE FOR BACKING UP YOUR OWN SYSTEM AND DATA, AND ANY MODEL ACCESSED THROUGH THE MODZY SOFTWARE.

YOU ARE HEREBY ADVISED THAT BY THE NATURE OF THE TECHNOLOGIES INCLUDED IN OR USED WITH THE MODZY SOFTWARE AND MODELS, THE PREDICTION ACCURACY OF ANY MODELS, ALGORITHMS, OR OTHER COMPONENTS OF THE MODZY SOFTWARE OR MODELS IS NOT GUARANTEED. USE OR RELIANCE UPON THE OUTCOMES OR CALCULATIONS PROVIDED BY THE MODZY SOFTWARE, OR THE MODELS, ALGORITHMS, MODULES, OR ANY OTHER COMPONENT OF THE MODZY SOFTWARE OR MODELS IS STRICTLY AT YOUR OWN RISK. IN NO EVENT SHALL MODZY, OR ITS LICENSORS, SUPPLIERS, OR MODEL PROVIDERS HAVE ANY LIABILITY TO YOU WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, ARISING FROM YOUR USE OR RELIANCE ON ANY OUTCOMES PRESENTED OR OTHERWISE CALCULATED BY THE MODZY SOFTWARE AND MODELS AND THE PREDICTION ACCURACY OF ANY MODELS, ALGORITHMS, MODELS, OR OTHER OFFERINGS IN THE MODZY SOFTWARE.

YOU UNDERSTAND AND AGREE THAT ANY WARRANTIES LISTED IN THIS AGREEMENT SHALL NOT APPLY TO MODELS, TOOLS, SOFTWARE, HARDWARE, OR INTEGRATIONS NOT PROVIDED BY MODZY.

  1. Indemnity            

BY USING THE MODZY SOFTWARE, YOU AGREE, TO THE EXTENT PERMITTED BY LAW, TO INDEMNIFY AND HOLD MODZY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, PARTNERS, SUPPLIERS, MODEL PROVIDERS, CONTRACTORS, AND LICENSORS HARMLESS WITH RESPECT TO ANY CLAIMS, ALLEGATIONS, DAMAGES, SUITS, ACTION OR PROCEEDINGS ARISING OUT OF OR RELATED TO (A) YOUR BREACH OF THIS AGREEMENT OR ANY ALLEGATION THAT IF TRUE WOULD CONSTITUTE A BREACH OF THIS AGREEMENT, (B) YOUR USE OF THE MODZY SOFTWARE (OTHER THAN TO THE EXTENT WE INDEMNIFY YOU AS PROVIDED IN THE “INFRINGEMENT INDEMNITY” SECTION BELOW), (C) YOUR USE OF A MODEL, OR (D) ANY ACTION TAKEN BY MODZY AS PART OF ITS INVESTIGATION OF A SUSPECTED VIOLATION OF THIS AGREEMENT OR AS A RESULT OF ITS FINDING OR DECISION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED.

YOU AGREE THAT YOU SHALL NOT SUE OR SEEK TO RECOVER ANY DAMAGES FROM MODZY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, PARTNERS, SUPPLIERS, MODEL PROVIDERS, CONTRACTORS, AND LICENSORS AS A RESULT OF MODZY’S DECISION TO REMOVE OR REFUSE TO PROCESS ANY INFORMATION OR MODELS, TO WARN YOU, TO SUSPEND OR TERMINATE YOUR ACCESS TO THE MODZY SOFTWARE, OR TO TAKE ANY OTHER ACTION DURING THE INVESTIGATION OF A SUSPECTED VIOLATION OR AS A RESULT OF MODZY’S CONCLUSION THAT A VIOLATION OF THIS AGREEMENT HAS OCCURRED. THIS WAIVER AND INDEMNITY PROVISION APPLIES TO ALL VIOLATIONS DESCRIBED IN OR CONTEMPLATED BY THIS AGREEMENT.

  1. Infringement Indemnity

With respect to Modzy Software for which you have paid a fee to Modzy, during the applicable License Period, we will, at our expense, (i) defend you from and against all actions, proceedings, claims and demands by a third party (a “Third-Party Claim”) alleging that the Modzy Software (and not any Models) infringes any copyright or misappropriates any trade secret and (ii) pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) paid to the third party bringing any such Third-Party Claim.  Our obligations under this Section are conditioned upon (i) us being promptly notified in writing of any Third-Party Claim for which you seek indemnification under this Section, (ii) us having the sole and exclusive right to control the defense and settlement of the Third-Party Claim, and (iii) you providing all reasonable assistance in the defense of such Third Party Claim.  In no event shall you settle any Third-Party Claim without our prior written approval.  You may, at your own expense, engage separate counsel to advise you regarding a Third-Party Claim and to participate in the defense of the Third-Party Claim, subject to our right to control the defense and settlement.

If any Third-Party Claim which we are obligated to defend has occurred, or in our determination is likely to occur, we may, in our sole discretion and at our option and expense (a) obtain for you the right to use the Modzy Software, (b) substitute a functionality equivalent, non-infringing replacement for the Modzy Software, (c) modify the Modzy Software to make it non-infringing and functionally equivalent, or (d) terminate this Agreement and refund to you any prepaid amounts attributable the period of time between the date you were unable to use the Modzy Software due to such Third Party Claim and the remaining days in the then-current License Period.

Notwithstanding anything to the contrary in this Agreement, the foregoing obligations shall not apply with respect to a claim of infringement if such claim arises out of (i) use of the Modzy Software in combination with any software, hardware, network or system not supplied by us where the alleged infringement relates to such combination, (ii) any modification or alteration of the Modzy Software other than by us, (iii) your continued use of the Modzy Software after we have notified you to discontinue use because of an infringement claim, (iv) use of open source software; (v) your violation of any applicable law; (vi) the download of, access to or use of any Model;  (vii) your failure to install an Update issued by us when such Update would have prevented the alleged infringement or (viii) your use of the Modzy Software other than in accordance with this Agreement.

THE FOREGOING STATES OUR ENTIRE LIABILITY WITH RESPECT TO THE INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS BY THE MODZY SOFTWARE OR OTHERWISE, AND YOU HEREBY EXPRESSLY WAIVE ANY OTHER LIABILITIES OR OBLIGATIONS OF MODZY WITH RESPECT THERETO.  NO DEFENSE OR INDEMNITIES OF ANY KIND WHATSOEVER ARE PROVIDED FOR YOUR BENEFIT DURING THE LICENSE PERIOD FOR ANY MODZY SOFTWARE FOR WHICH YOU HAVE NOT PAID A LICENSE FEE TO US.

  1. Limitation of Liability

TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO CASE SHALL MODZY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, PARTNERS, SUPPLIERS, MODEL PROVIDERS OR LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR ANY LOST PROFITS, LOST SAVINGS, OR LOSS OF REVENUE, IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION ARISING FROM YOUR USE OF ANY OF THE MODZY SOFTWARE, MODELS, OR FOR ANY             OTHER CLAIM RELATED IN ANY WAY TO YOUR USE OF THE MODZY SOFTWARE AND/OR MODELS, INCLUDING, BUT NOT LIMITED TO, ANY ERRORS OR OMISSIONS IN THE MODZY SOFTWARE OR ANY MODELS, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY MODEL, EVEN IF WE HAVE BEEN ADVISED OF OR ARE AWARE OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.

TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT SHALL MODZY, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, CONTRACTORS, PARTNERS, SUPPLIERS, MODEL PROVIDERS OR LICENSORS TOTAL AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING UNDER OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, FROM YOUR USE OF THE MODZY SOFTWARE OR MODELS, FOR ANY OTHER CLAIM RELATED IN ANY WAY TO THIS AGREEMENT, OR FOR THE DEFENSE AND INDEMNITY PROVIDED BY US UNDER THIS AGREEMENT EXCEED THE GREATER OF AMOUNT OF (1) FIVE HUNDRED DOLLARS ($500) OR (2) THE FEES YOU HAVE PAID MODZY UNDER THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRECEDING THE OCCURRENCE GIVING RISE TO SUCH CLAIM, LESS IN ALL CIRCUMSTANCES AMOUNTS PREVIOUS PAID BY MODZY IN SATISFACTION OF LIABILITY UNDER THIS AGREEMENT.

THE FOREGOING LIMITATIONS IN THIS SECTION WILL APPLY (A) EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE, AND (B) REGARDLESS OF THE NATURE OF THE CLAIM OR ACTION, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, TORT, NEGLIGENCE, OR ANY OTHER THEORY OF LIABILITY.

  1. Other Services

Professional services may be purchased from Modzy, subject to the Parties entering into a separate agreement.

  1. Compliance with Law

You agree to comply with all local, state, federal, and national laws, statutes, ordinances, and regulations that apply to your use of the Modzy Software and Models.

  1. Governing Law; Venue

This Agreement shall be governed by, and construed in accordance with, the laws of the Commonwealth of Virginia, without regard to its conflict of laws principles.  Each Party consents to the sole and exclusive jurisdiction of the state and federal courts located in Fairfax County in the Commonwealth of Virginia over themselves and the subject matter of this Agreement with respect to any dispute, claims, suits or actions arising in connection with or related to this Agreement. Specifically excluded from application to this Agreement are the United Nations Convention on the International Sale of Goods and the Uniform Computer Information Transactions Act (UCITA).

  1. Trademarks            

Booz Allen Hamilton, Modzy, other Booz Allen Hamilton Inc. trademarks, service marks, graphics, and logos used in connection with the Modzy Software are trademarks or registered trademarks of Booz Allen Hamilton Inc. and its licensors and Model Providers in the U.S. and other countries. With the exception listed in Section 26, You are granted no right or license with respect to any of the aforesaid marks.  All other marks are the property of their respective owners.

  1. Name/Logo License

You are granted a limited and revocable license to use the Modzy name and logo (collectively “Modzy Brand”) only to indicate that your product or service integrates or is compatible with Modzy. You shall not use the Modzy Brand to indicate or imply an endorsement of your products or services. You shall only use the Modzy Brand in accordance with the Modzy Branding Guidelines that maybe updated from time to time and can be found here https://www.modzy.com/logo-usage-guidelines/.

You acknowledge Modzy’s ownership of the Modzy Brand, and agree that you will do nothing inconsistent with such ownership and that all use of the Modzy Brand by you shall inure to the benefit of and be on behalf of Modzy, and agrees that nothing in this Agreement shall give you any right, title or interest in the Modzy Brand other than the right to use the Modzy Brand in accordance with this Agreement. Your usage of the Modzy Brand and any resulting goodwill will accrue solely to Modzy’s benefit. You shall not at any time, do or cause to be done any act or thing challenging, contesting, impairing, invalidating, or tending to impair or invalidate any of Modzy’s rights in the Modzy Brand or any registrations derived from such rights. You shall terminate all usage of the Modzy Brand upon the request of Modzy.

  1. Force Majeure

Neither Party shall be responsible for any delay or failure in performance to the extent that such delay or failure is caused by fires, strikes, embargoes, explosion, earthquakes, floods, wars, labor disputes, pandemic, government requirements, terrorist acts or activities, civil or military authorities, acts of God or by the public enemy, inability to secure raw materials or transportation facilities, acts or omissions of carriers or suppliers, or other causes beyond its reasonable control whether or not similar to the foregoing.

  1. Assignment            

Neither Party may assign this Agreement, voluntarily or by operation of law, without the prior written consent of the other Party, except that Modzy may, without notice or your consent, assign this Agreement to a present or future affiliate or in connection with a merger, consolidation, corporate reorganization, or sale of all or substantially all of Modzy’s business or assets or of the business or assets associated with the Modzy Software. This Agreement shall be binding on permitted successors and assigns.  Any purported assignment not in compliance with this section shall be void ab initio and of no force our effect.

  1. Relationship of Parties

This Agreement shall not be construed as creating an agency, partnership, joint venture or any the other form of association, for tax purposes or otherwise, between the Parties, and the Parties shall at all times be and remain independent contractors. Except as expressly agreed by the Parties in writing, neither Party shall have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other Party or to bind the other Party in any respect whatsoever.

  1. Headings

The headings in this Agreement are inserted for convenience only and shall not constitute a part hereof or affect in any way the meaning or interpretation of this Agreement.

  1. Open Source Software

The Modzy Software and Models may be provided together with or otherwise contain, certain open source software components (“Open Source Components”) which are licensed under their respective open source license agreements (“Open Source Licenses”). You agree to the terms and conditions in each such Open Source License and agree to comply with all such terms and conditions. With respect to each Open Source Component, to the extent there are any conflicts between any terms of this Agreement and any terms of the respective Open Source License, which the Open Source License does not permit, such conflicting terms of this Agreement will not apply. Any fees charged in connection with the Modzy Software and Models do not apply to any Open Source Components for which fees may not be charged under the applicable Open Source License. Where the terms of any specific Open Source License entitle you to the source code of the respective Open Source Component (if any), that source code may be made available from Modzy or the licensor of a Model upon request (a nominal fee may be charged by Modzy or a Model licensor for processing such request).

  1. Model Specific Terms

You agree to comply with the Model End User License Terms and any additional terms for a particular Model you purchase in accordance with Exhibit A.

  1. S. Government End User Rights

The U.S. Government end user terms and conditions set forth in this Section shall apply to all instances where you are the U.S. Government, a U.S. Government employee, or a prime contractor or subcontractor that is using the Modzy Software to provide services for the U.S. Government (each, a “U.S. Government End User”).  In the event that you are a U.S. Government End User, the following provisions of this Agreement do not apply, and, where relevant, are superseded by the applicable provision of FAR 52.212-4 or other applicable law, such as the Contracts Disputes Act: Indemnity, Infringement Indemnification (to the extent it permits us to control litigation involving the U.S. Government), Limitation of Liability, Termination/Suspension, Assignment, and Governing Law; Venue.

The Modzy Software was developed entirely at private expense and no part of the Modzy Software was first produced in the performance of a U.S. Government contract. Accordingly, the Modzy Software and any derivatives thereof are “commercial items” as defined in 48 C.F.R. 2.101 (“Commercial Items”). If you are a U.S. Government End User, then the use, duplication, reproduction, release, modification, disclosure or transfer of the Modzy Software and any associated documentation and data is restricted in accordance with 48 C.F.R. §12.211; 48 C.F.R. §12.212, 48 C.F.R. §227.7102-2, and 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.211, 48 C.F.R. §12.212, 48 C.F.R. §227.7102-1 through 48 C.F.R. §227.7102-3, and 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Modzy Software is provided to U.S. Government End Users: (i) only as Commercial Items, (ii) with only those rights as are granted to all other users pursuant to this Agreement, and (iii) the terms of this Agreement are incorporated into Modzy’s contract with you or otherwise agreed to by you in a way that legally binds the U.S. Government to these terms.  This U.S. Government Rights clause is in lieu of, and supersedes, any Federal Acquisition Regulations (“FAR”), the Defense FAR Supplement (“DFARS”), or other clause or provision that addresses U.S. Government rights in computer software or technical data.

  1. Other Provisions

No terms or conditions in an request for quote (RFQ), request for information (RFI), or in any purchase order issued by you (including without limitation any terms and conditions that conflict with or are in addition to the terms and conditions in this Agreement) shall be binding on us and such terms and conditions are hereby rejected by us.

You also may be subject to additional terms and conditions that may apply when you use the Models as set forth in the Model End User License Agreement.

If any part of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions of this Agreement shall remain in full force and effect. Modzy’s failure to enforce any right or provisions in this Agreement will not constitute a waiver of such or any other provision.

  •  Entire Agreement

This Agreement, together with the Quotes and any Exhibits, constitutes the entire agreement among the Parties regarding the subject matter of this Agreement and supersedes all prior and contemporaneous discussions, representations, agreements, letters of intent, memoranda of understanding and other writings with respect hereto. No modification, alteration or amendment of            this Agreement shall be effective unless set forth in writing and signed by the Parties.  

 

MODEL END USER LICENSE TERMS

Exhibit A to Modzy End User License Agreement

 

  1. Introduction

A Model licensed to you by Modzy is a “Modzy Model,” a Model licensed to you by a third-party Model Provider is a “Third Party Model.”

With respect to Third Party Models, Modzy acts as a distributor for Model Providers that want to license their Third Party Models via the Modzy Software and as such (a) Modzy is not a party to these Model Provider Additional Terms and Conditions, (b) these Model Provider Additional Terms and Conditions Terms are between you and the Model Provider and (c) Modzy will not have any obligations or liability to you under these Model Provider Additional Terms and Conditions and you will not assert or allege anything to the contrary.  

Unless otherwise agreed to in a writing signed by you and either Modzy or the applicable Model Provider for one or more Models, any Model that you acquire access to or use of is governed by the Agreement and those additional terms set forth in this Exhibit A (the “Standard EULA”).

The Model Provider of any Model is solely responsible for the Model’s content, warranties (if any), and any claims that you may have related to the Model.

With respect to Third Party Models, you acknowledge and agree that Modzy is an intended third-party beneficiary of the Standard EULA, including any negotiated amendments thereto, applicable to each Third Party Model and may therefore enforce this Standard EULA.

  1. License to Models

Models made available through the Modzy Software are licensed, not sold, to you.  Your license to each Model is subject to your prior acceptance of this Standard EULA and any additional terms and conditions required by the  Model Provider.

Your license to any Modzy Model under this Standard EULA is granted by Modzy, and your license to any Third Party Model provided by a Model Provider under this Standard EULA or a separate Model Provider EULA is granted by the Model Provider. Any Model that is subject to the Standard EULA is referred to herein as the “Licensed Model.”

The Model Provider (the “Licensor”) reserves all rights in and to the Licensed Model not expressly granted to you under this Standard EULA.

  1. Scope of License

Subject to the terms and conditions in the Agreement and this Standard EULA, Licensor grants to you a non-exclusive, non-assignable, nontransferable, revocable, limited license to reproduce and use the Licensed Models on the Modzy Software in accordance with the limitations and restrictions in the Agreement and this Standard EULA.  The terms of this Standard EULA will govern any content, materials, or services accessible from or within the Licensed Model as well as Updates (if any) provided by Licensor that replace or supplement the original Licensed Model.

Except as otherwise provided in the Agreement or this Standard EULA, you shall not: (a) Transfer, redistribute or sublicense the Licensed Model; (b) copy, reverse-engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Model, any updates, or any part thereof (except as and only to the extent that any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open-sourced components included with the Licensed Model); (c) allow any person to use or access a Licensed Model or any related data, information or materials  is in violation of applicable law, including but not limited to persons on the Office of Foreign Assets Control’s Specially Designated Nationals and Blocked Persons List or the U.S.  Department of Commerce Denied Persons List; (d) access, or use, or allow the accessing or use of, the Licensed Model for any unfair or deceptive practices; (e) remove or alter any copyright, trademark, trade name or other proprietary notices, legends, symbols  or labels appearing on or in instances of the Licensed Model; (f) use or otherwise allow the Licensed Model to be used for any unlawful or criminal purpose; (g) use the Licensed Model outside of the Modzy Software; or (h) use the Licensed Model for any purpose other than in accordance with the terms and conditions of the Agreement, this Standard EULA, and in compliance with all applicable laws and regulations.

  1. User Added Models

The Modzy Software may provide you with space in your licensed instance of the Modzy Software to store your own licensed or generated models (“Customer Model“). By installing a Customer Model, you are requesting Modzy to retain a Customer Model on your behalf and to make it accessible to you through your account on the Modzy Software. You acknowledge that transfer of your preexisting Model(s) to the Modzy      Software site may constitute an export or import of software or technology across a border, and accordingly may require compliance with applicable export, import or other International Trade Laws and Regulations. It is solely your responsibility to comply with International Trade Laws and Regulations when transferring your preexisting Model(s) or data to the Modzy Software. You understand that Modzy, in performing the required technical steps at your direction to provide you with access to a Customer Models in the Modzy Software, may (a) transmit a Customer Models over various networks and in various media and (b) make such changes to a Customer Models as necessary to conform and adapt it to the technical requirements of connecting networks, devices, services or media. You confirm and warrant to Modzy that you have the necessary rights to store a Customer Model that you upload or store in the Modzy Software, and to instruct Modzy to perform the actions described in this section. Modzy is not responsible or liable for any damages related to Your use of a Customer Model.

  1. User Added Models Rules

Your use of a Customer Model must comply with the submission rules below, which may be updated by us from  time to time. You may not use the Modzy Software or a Customer Models to: post any materials that you do not have permission, right or license to use; post objectionable, offensive, unlawful, deceptive or harmful content; post personal, private or confidential information belonging to others; plan or engage in any illegal, fraudulent, or manipulative activity; display (in part or in whole) Models as part of any public performance or display even if no fee is charged except (a) where such use would not constitute a copyright infringement or violate any other applicable right or (b) as specifically permitted and only in the exact manner provided; sell, rent, lease, redistribute, broadcast, transmit, communicate, modify, sublicense, transfer, assign any Models to any third party that you may obtain through the Modzy Software except as specifically permitted and only in the exact manner provided; attempt to, or assist, authorize or encourage others to circumvent, disable or defeat any of the security features or components that protect, obfuscate or otherwise restrict access to the Modzy Software or any Model; remove any watermarks, labels or other legal or proprietary notices included in any Model, or attempt to modify any Model obtained through the Modzy Software, including any modification for the purpose of disguising or changing any indications of the ownership or source of Model.

  1. Headings

The headings in this Standard EULA are inserted for convenience only and shall not constitute a part hereof or affect in any way the meaning or interpretation of this Standard EULA.

  1. Other Provisions

No terms or conditions in an request for quote (RFQ), request for information (RFI), or in any purchase order issued by you (including without limitation any terms and conditions that conflict with or are in addition to the terms and conditions in this Agreement) shall be binding on the Model Provider and such terms and conditions are hereby rejected. 

If any part of this Standard EULA is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions of this Standard EULA shall remain in full force and effect. The Model Provider’s failure to enforce any right or provisions in this Agreement will not constitute a waiver of such or any other provision.

The Model Provider reserves the right at any time, by written notice to you, to modify this Standard EULA and to add new or additional terms or conditions to this Standard EULA, including without limitation modification and new or additional terms and conditions regarding your use of the Licensed Models, including without limitation as required by applicable law. Such modifications and additional terms and conditions will be effective and become part of this Standard EULA two (2) business days after your receipt of such notice or such longer period specified by the Model Provider in the notice. Your continued use of the Model after receipt of notice of the modifications or any additional terms and conditions will be deemed to constitute your acceptance thereof.  If you do not agree to the modifications or additional terms and conditions, you may terminate this Standard EULA by written notice.

8.     Entire Agreement

This Standard EULA constitutes the entire agreement between you and the Model Provider regarding the subject matter of this Standard EULA and supersedes all prior and contemporaneous discussions, representations, agreements, letters of intent, memoranda of understanding and other writings with respect hereto. No modification, alteration or amendment of this Standard EULA shall be effective unless set forth in writing and signed by you and the applicable Model Provider. Except as noted in the Model Provider Additional Terms and Conditions, in the event of any conflict between the terms of this Exhibit and the Agreement, the terms of the Agreement shall prevail. 

 

Model Provider Additional Terms and Conditions (if applicable)

If you purchase a license to a Third Party Model developed by a below Model Provider, the following additional terms and conditions are incorporated by reference into this Standard EULA.  To the extent there are any conflicts between these additional Model Provider terms and the terms of this Standard EULA, the conflicting terms provided by the Model Provider shall apply solely with respect to Models from that Model Provider.

Model Provider

Additional Terms and Conditions

 

 

 

 

[End of Exhibit A]

 

 

 

DATA PRIVACY ADDENDUM

Exhibit B to Modzy End User License Agreement

 

 

To the extent that Modzy’s performance under the Agreement, including the provision of any services, involves Modzy processing PII (as such term is defined below) on Customer’s behalf, the parties have agreed to be bound by this Addendum.

For purposes of this Addendum, the term “Agreement” includes any data processing addendum that Customer and Modzy have executed in connection with or as a part of the Agreement in order to address international and domestic data protection laws and regulations,   or data protection requirements under other applicable laws (an “Existing DPA”).

1.     Processing of PII

In connection with our provision of services to you under the Agreement, if we receive any personal information or personally identifiable information (as such term or any analogous term may be as defined under applicable law) from you or on your behalf (“PII”), then:

(a) We will only process such PII for the purpose of providing the services,

(b) We will not retain, use, or disclose such PII: (i) for any purpose other than to perform the services or (ii) outside of the direct business relationship between you and us,

(c) We will not sell, rent, release, disclose, disseminate, make available, transfer or otherwise communicate such PII to any third party for monetary or other valuable consideration, and

(d) We certify that we understand the restrictions on our processing such PII as set forth in this sentence, and we will comply with them. 

We may disclose PII to our service providers in connection with such service providers providing services to us and we may permit such service providers to process PII as necessary for us to provide the services to you.

We may combine your PII with personal information received from other entities to the extent necessary to detect security incidents or protect against fraudulent or illegal activity, to the extent that we act as a “service provider” as defined in California Civil Code § 1798.140(v) with regard to all such personal information

2.     De-identified Data and Aggregated Data

You acknowledge and agree that a purpose of the Agreement is that we may, as a part of the services provided to you and unless prohibited by applicable law, de-identify and/or anonymize PII (with the resulting de-identified or anonymized data and information being referred to herein as “De‑identified Data”) and may (subject to any restrictions under applicable law) aggregate de‑identified Data, including without limitation aggregation with other information received by us from our other customers and from other data sources (collectively, “Aggregated Data”) for the purpose of providing the Modzy Software and the services and enhancing the features, functions, and performance of the services and the Modzy Software.  All De-identified Data and Aggregated Data shall be owned solely and exclusively by us.  You further acknowledge              and agree that De‑identified Data and Aggregated Data cease to be PII, including without limitation for purposes of this Agreement, and we may, during and after the term of the Agreement, use, reproduce, distribute, sell and otherwise commercialize such De‑identified Data and Aggregated Data. 

We will use commercially reasonable efforts to implement safeguards and processes that are intended to prevent the re‑identification of any such De-identified Data.

3.     Requests              

If we receive a request from a consumer or data subject as defined under domestic or internal data protection laws/regulations with regard to your PII, we shall inform the submitter of the Request that it should submit the request directly to you.

4.     Conflict                 

In the event of any conflict between the terms of this Addendum and the Agreement, the terms of this Addendum shall prevail.  In the event of any conflict between the terms of this Addendum and any Existing      DPA, the terms of the Existing DPA shall prevail unless applicable law requires otherwise. 

 

[End of Exhibit B]

 

Modzy Technical Support Policy

Exhibit C to Modzy End User License Agreement

  1. Introduction

The following technical support services (“Technical Support”) shall be provided by Booz Allen Hamilton Inc. (“Modzy,” “we,” “us,” or “our”)) as part of its customer’s (collectively “Customer,” “You,” or “Your”) paid annual subscription to the Modzy Software, subject to the terms and conditions of Your applicable agreements with Modzy.

  1. Prior to Logging a Case

Before logging a case with Modzy Technical Support, You should follow the steps below:

  1. Verify that the issue is with the Modzy Software
  2. Verify that You are using a currently supported version of the Modzy Software
  3. Attempt to reproduce the issue and determine if it occurs consistently
  4. Determine if the issue occurs on a local machine or on multiple machines in the customer environment
  5. Engaging Technical Support

When You have an issue that you cannot solve on Your own or by using any of the self-service resources provided, You may contact Modzy Technical Support to log a case for your issue via email ([email protected]). Modzy Technical Support is only available to respond to cases in Your production environment. You will receive a response within 24 hours of reporting an issue during normal business hours, excluding scheduled or unscheduled maintenance periods, force majeure events, or suspension or termination of your access to Technical Support. Normal business hours shall mean 8:00am to 6:00pm EST Monday through Friday, excluding weekends and United States federal holidays.

  1. Reporting & Responses

Modzy will respond to logged cases from its customers within the response times below:

Technical Support

Target Response Times*

Included with subscription

24 hours

*Response is a real-time electronic response from a Modzy representative to begin the process of troubleshooting the issue.

Modzy shall provide an update by email. Modzy shall not be responsible for providing regular updates and resolution may be delayed if a customer does not have staff available to provide timely information and support. You must be willing to involve the level of staff needed to resolve the issue effectively and be available to assist Modzy with tasks such as testing, sending appropriate information, and implementing suggestions. Modzy shall endeavor to meet or exceed Target Response Times in accordance with this Technical Support Policy. Failure by Modzy to meet Target Response Times shall not impact the terms, conditions, or obligations of the parties as listed in the Modzy End User License Agreement.

  1. Providing Data to Technical Support

During the course of troubleshooting an issue, it may be necessary to provide Modzy Technical Support personnel with data from Your systems. You will not transfer to Modzy or provide to Technical Support resources any access to any data or information that is subject to regulation under Applicable Data Protection Law (“Protected Data”), including without limitation Personal Data, Protected Health Information and Personally Identifiable Information (as such terms are defined in Applicable Data Protection Law), except for Protected Data related to Your Support Contacts. “Applicable Data Protection Law” means all applicable international, federal, state, provincial and local laws, rules, regulations, directives and governmental requirements currently in effect and as they become effective relating in any way to the privacy, confidentiality or security of Protected Data including, without limitation, the European Union Directives governing general data protection and all applicable industry standards concerning privacy, data protection, confidentiality or information security. In the event such data is transmitted to Modzy, Modzy shall have no liability to Customer for any damages of any kind (including loss of revenue or use), whether in contract or tort, relating to such transmission, even if Modzy has been advised of the possibility of such damages.

  1. Third Party Software

Modzy does not provide direct support for third-party models. In certain instances, Modzy Technical Support may be available to work with and provide information to the third-party vendors. If a defect in third-party software causes the Modzy Software to perform less optimally, Modzy Technical Support will identify the third-party component so that the customer may pursue a solution with the correct vendor.

  1. Changes to Policy

Modzy reserves the right to change this Policy without prior notification to you. If we make a change to this Policy, we will change the effective date above. We suggest you review this Policy from time to time. If we materially change this Policy, we will attempt to provide you with notice of such changes via email or by posting a notice on this website.

  1. Contact            

If you have any questions regarding this Policy, please contact us at [email protected].

 

[End of Exhibit C]

_________________________________________________________________________________________________

Modzy Cloud Hosting Service

Exhibit D to Modzy End User License Agreement

To the extent that Modzy’s performance under the Agreement, including the provision of any related services, involves Modzy providing Cloud Hosting Service (as such term is defined below) on Customer’s behalf, the parties have agreed to be bound by this Exhibit.

For purposes of this Exhibit, the term “Cloud Hosting Service” means a platform as a service that allows Customers to access a licensed version of Modzy, Modzy Models, Third Party Models, Customer Models (collectively “Models”), and Customer Data. “Customer Data” means all data, including all text, sound, video, or image files, and software, that are provided to Modzy by, or on behalf of, Customer through use of the Cloud Hosting Service.

  1. Hosting Service

You can upload and store Customer Data and Models in the Cloud Hosting Service. You understand and agree that Customer Data can be processed by Models in Customer’s sole discretion.

  1. Usage Terms

You shall ensure that your use of the Cloud Hosting Service complies with all laws, rules and regulations applicable in relation to Customer Data, and that your processing of Customer Data will not cause Modzy, its partners, or suppliers to be in breach of applicable laws.

You are solely responsible for all Customer Data that is uploaded to or processed via the Cloud Hosting Service. You shall secure and maintain all rights in the Customer Data in order for Modzy to provide the Cloud Hosting Service to you without violating the rights of third parties. If you choose to process Personal Data, Personally Identifiable Information, or any data or information that is subject to regulation under applicable data protection laws as part of Your use of the Cloud Hosting Services, Exhibit B of the Agreement shall apply. You understand and agree that you shall not store or process any Personal Health Information in the Cloud Hosting Service.

You shall not on your own, or permit or assist any person or entity to use the Cloud Hosting Service to (i) act in a fraudulent, tortious, malicious, or negligent manner; (ii) rent, lease, sell, license, share, or remarket the Cloud Hosting Service to any third party (unless authorized in writing by us in each case), (iii) introduce in or to Cloud Hosting Service any malicious code, malware, harmful code, or implement a denial of service attack or introduce or implement any other code or routine which results in disruption or damage to the Cloud Hosting Service; (iv) use or otherwise allow the Cloud Hosting Service to be used for any unlawful or criminal purpose or (v) upload inappropriate, violent, nude, sexually suggestive, discriminatory, unlawful, infringing, or offensive pictures or photographs or other content to the Cloud Hosting Service. 

For clarity, you are responsible and liable for (a) all acts and omissions of your employees and users that access or use the Cloud Hosting Service and (b) all activities that occur or are related to your cloud account with us, including without limitation those activities that occur with your user name, user IDs, passwords or other credentials.

  1. Data Retention

Upon termination of the Agreement, You may retrieve, transfer, or delete any of Your remaining Customer Data from the Cloud Hosting Service for fifteen (15) days from termination (“Retention Period”), subject to the terms and conditions set out in the Agreement, unless (i) it is prohibited by law or the order of a governmental or regulatory body, (ii) it could subject Modzy, its partners, or its suppliers to liability, or (iii) you have not paid all amounts due under the Agreement. With the exception of Customer Data which Modzy is required to keep to comply with applicable laws, court orders, or regulations, upon expiration of the Retention Period, Modzy will delete all Customer Data and Models in your instance of the Cloud Hosting Service.

  1. Security

Modzy has implemented and will maintain technical and organizational measures, including, as appropriate

security of the Modzy marketplace, measures to control access rights for Modzy employees and contractors in relation to the Cloud Hosting Service. Modzy shall regularly test, assess, and evaluate the effectiveness of the technical and organizational measures implemented by Modzy.

You are solely responsible for implementing appropriate technical and organizational measures in relation to Customer Data and Models. You are also responsible for reviewing the information made available by Modzy relating to data security and making an independent determination as to whether the Cloud Hosting Service meets your requirements and legal obligations. Modzy will provide reasonable assistance to You (at Your expense) in: a) complying with its obligations under applicable laws and regulations relating to the security of Customer Data; b) documenting any Security Incidents and reporting any Security Incidents to any supervisory authority.

Modzy will, to the extent permitted by law, notify You without undue delay after becoming aware of any accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, any Customer Data by Modzy, a Modzy contractor, or supplier (a “Security Incident”). To the extent such a Security Incident is caused by a violation of the requirements of this Exhibit by Modzy, we will make reasonable efforts to identify and remediate the cause of such breach, including steps to mitigate the effects and to minimize any damage resulting from the Security Incident. Modzy’s obligation to report or respond to a Security Incident is not and will not be construed as an acknowledgement by Modzy of any fault or liability of Modzy with respect to the Security Incident.

  1. Disclaimer            

Except for the limited warranties noted in the Agreement, to the extent not prohibited by applicable law, the Cloud Hosting Service is provided “As Is” and Modzy provides no warranties or conditions for the Cloud Hosting Service and disclaims any other express, implied, or statutory warranties for the Cloud Hosting Service, including warranties of quality, title, non-infringement, merchantability and fitness for a particular purpose.  Modzy does not warrant that the Cloud Hosting Service will be uninterrupted, error free, free from harmful components and that any Customer Data will be secure or not otherwise lost or altered.

  1. Renewal

Unless otherwise noted in an applicable Quote or prohibited by law, the Cloud Hosting Service shall automatically renew on a monthly basis unless (i) you provide Modzy with written notice no later than fifteen (15) days prior to the end of the then current monthly term that you do not intend to renew access to the Cloud Hosting Service or (ii) Modzy in its sole discretion provides you with sixty (60) day’s notice of its intention to no longer renew your access to the Cloud Hosting Service.

  1. Billing

Unless otherwise noted in an applicable Quote, charges for Cloud Hosting Services shall accrue based on usage of the Cloud Hosting Service and invoices will be paid monthly in accordance with the terms of the Agreement. The payment of all Cloud Hosting Services fees are final and non-refundable once paid, except for refunds expressly contemplated by the Agreement. 

  1. Supplier Terms

Customer agrees that Modzy may use third party suppliers to fulfill its contractual obligations under this Exhibit or to provide certain services on its behalf. If Modzy procures a cloud environment on your behalf to host the Cloud Hosting Service, you agree to the terms and conditions of the applicable third-party supplier. The terms and conditions of the applicable third-party supplier of the cloud environment shall be made available upon request.