Glimpse Terms of Service

Terms of Service

for Scanning Services and Glimpse Portal™ Subscriptions - Version 1.0

Subject to the terms and conditions of this agreement (this "Agreement"), we at Glimpse Engineering, Inc., a Delaware corporation d/b/a Glimpse ("Glimpse" or "we"), provide:

subscriptions to our proprietary web-based software application used for collating images and data from scans of battery cells, known in the marketplace as the Glimpse Portal™ (the "Portal");
access to a website (the "Website" and, together with the Portal, the "Software") through which you may access and use the Portal; and
the Services described in further detail below.

"You" are the business or other legal entity accepting this Agreement as part of your procurement of our Services and/or a subscription to our Software.

Capitalized terms that are used as defined terms but not defined in context below have the meanings given to such terms in Section 16 below.

Acceptance

By You

YOU SHOULD READ THIS AGREEMENT CAREFULLY FOR THE TERMS AND CONDITIONS THAT GOVERN YOUR ACCESS TO AND USE OF THE SOFTWARE AND YOUR RECEIPT OF THE SERVICES. BY ACCESSING AND USING THE SOFTWARE AND/OR RECEIVING OUR SERVICES, OR BY SIGNING THIS AGREEMENT OR BY CHECKING OR CLICKING THE "AGREE," "I CONSENT" OR SIMILAR BUTTON OR BOX IF AND WHEN THIS OPTION IS PRESENTED TO YOU, YOU: (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, (B) AGREE TO ACCEPT THIS AGREEMENT, AND (C) AGREE THAT YOU ARE LEGALLY BOUND BY (AND THAT YOU WILL ADHERE TO) ALL TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SOFTWARE AND DO NOT REQUEST OR RECEIVE OUR SERVICES.

Individual Executing

THE INDIVIDUAL REGISTERING TO USE THE SOFTWARE AND/OR RECEIVE THE SERVICES ON YOUR BEHALF (AND CLICKING "AGREE," "I CONSENT" OR SIMILAR BUTTON OR BOX ON YOUR BEHALF IF AND WHEN SUCH BUTTON OR BOX IS PRESENTED) REPRESENTS AND WARRANTS TO US THAT SUCH INDIVIDUAL IS FULLY AND DULY AUTHORIZED TO LEGALLY BIND YOU TO THIS AGREEMENT IN FULL.

1. Right to Access the Portal and Corresponding Limitations and Restrictions

1.a Portal Authorization

We authorize you, your Affiliates and your Authorized Users, during the Software subscription term set forth in the applicable Order only, and on a non-exclusive and non-transferable (except as described in Section 15.e) basis, to access and use the Portal on a "software as a service" basis through the Website, in each case provided that such access and use is (i) by and through your Authorized Users only, (ii) solely for the Permitted Use, and (iii) strictly in accordance with this Agreement and the Documentation. This authorization also permits you, your Affiliates and your Authorized Users to access and use the Documentation during the subscription term set forth in the applicable Order in support of your Permitted Use of the Software.

1.b Limitations and Restrictions

You must not, and you must not permit any other person or entity (including your Affiliates and Authorized Users) to, access or use the Software except as we've specifically allowed in this Agreement. Without limiting the preceding sentence, you, your Affiliates and your Authorized Users must not do any of the following:

copy, modify, adapt, translate or create derivative works or improvements of the Software;
rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software or any features or functionality of the Software to any other person or entity for any reason, including by making the Software available through any time-sharing, service bureau or software as a service arrangement;
reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive, gain access to or discover the source code of the Software or the underlying structure, ideas, know-how, algorithms or methodology relevant to the Software;
input, upload, transmit or otherwise provide to or through the Software any information or materials that are unlawful or that contain, transmit or activate any Harmful Code;
bypass, breach or disable any security device, copy control, digital rights management tool or other protection used by the Software;
attempt to gain unauthorized access to, damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner (A) the Software, (B) the server on which the Software is hosted and stored, (C) any server, computer or database connected to the Software, or (D) our ability to provide our Software or services to any other person or entity;
access or use the Software in any way that infringes, misappropriates or otherwise violates any intellectual property right, privacy right or other right of any third party, or that violates any applicable law or regulation;
access or use the Software for purposes of (A) developing, marketing, distributing, licensing or selling any product or service that may compete with the Software, or (B) disclosing to our competitors, for any purpose, otherwise non-public information about the Software;
share an Authorized User's access credentials used to log in to the Software with any person or permit use of an Authorized User's access credentials by any person, other than the Authorized User with whom the access credentials are associated;
access or use the Software contrary to any additional limitations or restrictions that may be set forth in your Order; or
knowingly aid or assist any Affiliate, Authorized User or other person or entity in taking any of the actions prohibited by this Section 2.b.

1.c Responsibility for Affiliates and Authorized Users

You will ensure your Affiliates' and Authorized Users' compliance with this Agreement and be responsible and liable to us for any act or omission of an Affiliate or Authorized User (or any other employee, contractor or agent under your control or direction or acting on your behalf) that would be a breach or violation of this Agreement had you performed the act or omission yourself.

2. Our Services

2.a Services – Generally

We will provide to you the following services (the "Services"): (i) the hosting, management and back-end operation of the Portal in order to make the same available for remote electronic access and use by you, your Affiliates and your Authorized Users through the Website in accordance with the authorizations granted above; (ii) the Support Services described in Section 4 below; (iii) the Scanning Services described in Section 5 below; (iv) the Additional Services described in Section 6 below; and (v) any other Services we expressly agree to provide in your Order.

2.b Changes to the Software

We may make any changes to the Software (including, without limitation, the design, look and feel, functionality, content, material, information and/or services provided via the Software) that we deem necessary or useful to improve the Software or for any other reason, from time to time in our discretion; provided that we will not during the Term make any changes to the Software that will materially adversely affect the features and functionality of the Software that you use. Such changes may include upgrades, bug fixes, patches, error corrections, modifications, enhancements, improvements and/or new features (collectively, "Updates"). All Updates shall be deemed a part of the Software governed by all the provisions of this Agreement pertaining thereto. If we make a change to the Software that has a material adverse effect on your operations, then (i) you may notify us in writing of the material adverse effect and you may, immediately upon written notice to us, terminate this Agreement if we do not cure this condition within 30 days following receipt of your notice, and (ii) if you terminate this Agreement in the manner provided in this Section 3.b we will promptly provide you with a Refund of Fees (as defined below).

2.c Subcontractors

You understand and agree that we may, in our discretion, engage subcontractors to aid us in providing the Software and performing our Services under this Agreement, but we will remain liable to you for any act or omission by such subcontractors that would be a breach or violation of this Agreement. For example, we may use Amazon Web Services, Microsoft Azure, Google Cloud Platform and/or such other reputable provider that implements and maintains commercially reasonable security programs, policies, procedures, controls and technologies (the "Hosting Services Provider") for cloud-based infrastructure and hosting and storage services for the Portal, and such Hosting Services Provider will host and store certain portions of Your Data that is processed through the Portal. You hereby specifically approve and consent to our use of a Hosting Services Provider in the manner described. Notwithstanding anything to the contrary in this Agreement, you further agree that we cannot guarantee or ensure the performance of any Hosting Services Provider to the terms of this Agreement, and remediation of a breach by a Hosting Services Provider will be limited to the remedies specified the Hosting Services Provider's standard service agreement.

2.d Suspension of Software Access

We may suspend or deny your (and/or one or more of your Affiliates' or Authorized Users') access to or use of all or any part of the Software and suspend our performance of our Services, without any liability to you or others, if (i) we're required to do so by law or by order of a court or other governmental agency; or (ii) you have, your Affiliate has or your Authorized User (or any other employee, contractor or agent under your control or direction or acting on your behalf) has (A) accessed or used our Services or Software in violation of Section 2.b of this Agreement, (B) been involved in any fraudulent or unlawful activities relating to or in connection with our Services or Software, or (C) otherwise failed to comply with this Agreement and failed to cure such breach within 10 days after we provide written notice to you. Unless we have exercised our right to terminate this Agreement pursuant to Section 11.c, we will promptly restore access to the Software and resume performance of our Services as soon as the applicable legal requirement or court order is lifted or the applicable breach or violation is cured. Our remedies in this Section are in addition to, and not in lieu of, our termination rights in Section 11.c or any other rights or remedies under this Agreement, at law or in equity.

3. Support Services

During the Software subscription term set forth in the applicable Order, we will provide customer support services to you and your Authorized Users relating to access to and use of the Software, via e-mail, telephone and other channels that we may make available from time to time, during our standard support hours (9:00 a.m. to 5:00 p.m., Eastern time, Monday through Friday, but excluding U.S. federal holidays) ("Support Services").

Support Services include the following:

access to knowledge base content, FAQs, training videos and community forums in each case that may be hosted and made available generally to customers by us from time to time through the Website or otherwise;
technical and operational assistance for the use of the Software, including responses to general, short-duration questions about the documented features and functionality of the Software and usage thereof, management of user accounts for Authorized Users, assistance with interpretation and use of the Documentation, and assistance with interpretation of error or warning messages appearing in dashboards or alerts;
commercially reasonable attempts to respond to and resolve, promptly, any reproducible failure of the Software to perform in accordance with the Documentation (each, an "Error"); and
periodically providing to you all Updates to the Software that we make generally available to all of our customers free of additional charge.

Support Services do not include:

support for software or hardware that is not part of the Software (including support for any part of your equipment, products or technology infrastructure that are separate and apart from the Software itself);
on-site dispatch of our personnel;
assistance with any First-Level Technical Support issues that are the responsibility of your User Contacts;
formal, comprehensive training of Authorized Users (or any other person or entity) on use of the Software;
on-site or remote support to configure or customize the Software for you; or
performance of any other professional, implementation, onboarding, configuration, customization, consulting or advisory services (provided that items (4) through (6) may be separately provided Services to the extent expressly agreed to in your Order).

You must provide all information and assistance that we reasonably request in connection with providing such Support Services. You will identify one or more system administrators or other employees (each, a "User Contact") trained in use of the Software who will provide First-Level Technical Support to your Authorized Users. "First-Level Technical Support" involves assisting Authorized Users with basic help and general FAQs concerning Software usage, understanding Software features and functionality, and verifying Software Errors reported by Authorization Users. We reserve the right to charge you at an hourly rate (on a time-and-materials basis) for support services provided (x) outside of our normal support hours, or (y) in connection with a request we reasonably determine is outside the scope of the Support Services described above, provided that we will provide you with a quote and obtain your approval before incurring any charges for any such out of scope support services.

4. Scanning Services

4.a Description of Services

To the extent expressly agreed to by you and us in each Order, with respect to one or more battery cells (the "Battery Cells") that you ship to us in accordance with Section 5.b below, we will (i) scan the Battery Cells using our own owned or leased scanning equipment, (ii) generate images and data resulting from such scans in accordance with the specifications set forth in the applicable Order, and (iii) process the resulting images and data and upload the same to the Portal for you to access and view (collectively, the "Scanning Services"). For the avoidance of doubt, the images and data of and about the Battery Cells you ship to us are Your Data for all purposes under this Agreement.

4.b Shipment and Return of Battery Cells

Unless otherwise expressly agreed to by you and us in writing, you will: (i) ship the Battery Cells to our designated facility (as set forth in the Order or otherwise designated by us in writing), at your expense and using the method of shipment and the carrier of your choice; (ii) once our scanning of the Battery Cells is complete, arrange for return shipment of the Battery Cells back to you at your expense and using the method of shipment and carrier of your choice; (iii) bear the risk of loss to any Battery Cells in the course of shipment to us or return shipment to you; and (iv) be responsible for procuring insurance for the Battery Cells in the course of shipment to us or return shipment to you, of a type and in amounts that you deem appropriate.

For the avoidance of doubt, our Fees are exclusive of—and you are solely responsible for, you shall pay, and you shall hold us harmless from—all shipping charges and any costs of insurance for shipment and return shipment of the Battery Cells. You specifically acknowledge and agree that, to the extent we choose to assist you in any manner in selecting a method of shipment and/or a carrier, we do so for your convenience only, and our choice to assist in this manner (A) does not and will not alter the allocation of risk or allocation of responsibility for paying expenses and ensuring appropriate insurance for any and all shipping of Battery Cells as set forth in this Section, and (B) does not create any express or implied obligation for us to continue to so assist you at any time in the future. We will not be responsible or liable to you for any delays in shipment or damage to or other improper handling of the Battery Cells by the carrier in the course of shipment or return shipment of the Battery Cells. We will not be responsible or liable to you for any delays in performing the Scanning Services or failure to perform the Scanning Services in accordance with the standards of quality set forth in this Agreement or otherwise to the extent such delays or failures result from delays in shipment of the Battery Cells or any damage to or other improper handling of the Battery Cells by the carrier in the course of shipment or return shipment of the Battery Cells.

5. Additional Services

We will also perform any other training, configuration, data analytics and other consulting and professional services (the "Additional Services") that are mutually agreed upon by you and us and described in an applicable Order. In connection with our performance of any Additional Services, you will: (a) reasonably cooperate with us in all matters relating to the performance of the Additional Services; (b) in a timely manner, provide all of Your Data reasonably necessary for us to complete such Additional Services; (c) respond promptly to our requests to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for us to perform such Additional Services in accordance with the Order; and (d) perform those additional tasks and assume those additional responsibilities that are assigned to you as specified in the Order. You accept and agree that our performance is conditioned on and dependent on your timely and effective satisfaction of the foregoing responsibilities.

6. Confidentiality

6.a General

In connection with receiving or providing the Software and Services during the Term, each party (each, a "Discloser") may disclose to the other party (the "Recipient") the Discloser's proprietary or confidential information (collectively, "Confidential Information"). During the Term and thereafter the Recipient will not without the Discloser's written consent disclose Discloser's Confidential Information to any third party (other than our subcontractors as permitted in Section 3.c above) nor use the Discloser's Confidential Information for any purpose except for carrying out its obligations or exercising its rights under this Agreement. All non-public information related to the Glimpse IP (as defined below) and our Services and the features, functionality and performance thereof are all our Confidential Information; Your Data (including, for the avoidance of doubt, any of Your Data that consists of Personal Information (as defined below) of your employees or other personnel) is your Confidential Information; and the terms of this Agreement and each Order are the Confidential Information of both of us.

6.b Exceptions

These restrictions will not restrict the use or disclosure of information disclosed by one party to the other that (i) is or becomes publicly known other than as a result of any act or omission by the Recipient or its employees or agents, (ii) is lawfully received by the Recipient from a third party not in a confidential relationship with the Discloser, or (iii) was already rightfully known by the Recipient prior to receipt thereof from the Discloser. Additionally, Recipient may disclose Discloser's Confidential Information to the extent it is legally compelled to do so pursuant to applicable law or the valid order of a court or governmental agency, provided that Recipient must first give the Discloser reasonable prior written notice to permit the Discloser to challenge or limit such required disclosure.

7. Data Privacy – Service Provider / Processor Clauses

7.a Compliance with Data Privacy Laws

We will store, use and otherwise process any of Your Data that constitutes "personal information," "personal data" or "personally identifiable information" as defined in applicable laws (collectively "Personal Information") in all material respects in accordance with all applicable laws relating to the privacy and protection of Personal Information ("Data Privacy Laws"), including, in each case to the extent applicable, the California Consumer Privacy Act of 2018 and its implementing regulations (as amended, restated or supplemented from time to time, including by the California Privacy Rights Act of 2020, "CCPA") and the other U.S. state privacy laws listed on Appendix 1 attached hereto below (the "Other State Laws").

7.b Additional Clauses or Requirements

In furtherance of the foregoing, based on the data that you will process using the Software or otherwise provide to us in connection with the Services or otherwise, if and to the extent Data Privacy Laws require additional clauses to be executed by us beyond those set forth in this Agreement, then you must notify us in writing of such requirement and we will in good faith review, negotiate and consider adding such clauses as an addendum to this Agreement. In the absence of such notice you represent and warrant that no additional clauses are required.

7.c Roles of the Parties; Purpose of Processing

You and we both agree that you are a business and we are a service provider under the CCPA, and that you are a controller and we are a processor under the Other State Laws (and similarly for the corresponding roles and concepts under any other Data Privacy Laws). The specific purpose for which we are processing Personal Information under this Agreement (and the only purpose for which you disclose Personal Information to us under this Agreement) is for us to provide the Software and Services as specifically set forth in this Agreement.

7.d Our Obligations

During the Term and thereafter, we will:

not retain, use or disclose Personal Information for any purpose (including any commercial purpose) other than for the specific purpose of providing the Software and performing the Services contemplated by this Agreement;
not retain, use or disclose Personal Information outside of the direct business relationship between you and us;
not sell or (where CCPA applies) share the Personal Information to or with any third parties;
not combine the Personal Information that we receive from you, or on your behalf, with Personal Information that we receive from, or on behalf of, another person or persons, or collect from our own interaction with the consumer, provided that we may combine such Personal Information (A) for the specific purpose of providing the Software or other Services contemplated by the Agreement or (B) to perform any other permitted business purpose under CCPA, the Other State Laws and/or any other Data Privacy Laws, as applicable;
taking into account the nature of processing and the information available to us, by appropriate technical and organizational measures and insofar as this is reasonably practical, promptly comply with your reasonable written instructions associated with responding to any consumer's request to exercise the consumer's rights with respect to the consumer's Personal Information under CCPA, the Other State Laws and/or any other Data Privacy Laws, as applicable;
taking into account the nature of processing and the information available to us, reasonably assist you in meeting your obligations under CCPA, the Other State Laws and/or any other Data Privacy Laws, as applicable, in relation to the security of processing Personal Information and in relation to providing for legally-required notifications of breaches involving Personal Information;
at your direction, delete or return to you all Personal Information as requested at the end of this Agreement, unless (and only to the extent) retention of the Personal Information is permitted or required by law; and
notify you after we make a determination that we can no longer meet our obligations under this Section 8.

You have the right, upon notice to us, to take reasonable and appropriate steps to stop and remediate our unlawful or unauthorized use of Personal Information. We certify that we understand and will comply with the restrictions, duties and obligations set forth in this Section 8.

7.e Data Subject Rights Requests

In the event that any consumer makes a request directly to us with respect to exercising his or her privacy rights under CCPA, the Other State Laws and/or any other Data Privacy Laws, as applicable, we will promptly notify you and provide you with a copy of the consumer request, inform the consumer that the consumer's request cannot be acted upon because the request has been sent to a service provider or processor (as applicable), provide you with a copy of such response, and reasonably cooperate with you in your efforts to respond and act on the consumer's request in accordance with the requirements of CCPA, the Other State Laws and/or any other Data Privacy Laws, as applicable, in each case unless we are legally prohibited from doing so.

7.f Legally-Permitted Exceptions

Where permitted and provided by CCPA, the Other State Laws and/or any other Data Privacy Laws, as applicable, nothing in this Section 8 will prohibit us from retaining, using or disclosing Personal Information in connection with:

retaining or employing another service provider or processor as a subcontractor, provided the subcontractor meets the requirements for a service provider or processor under the CCPA, the Other State Laws and/or any other Data Privacy Laws, as applicable;
our internal use to build or improve the quality of our Software or Services, provided that the use does not include building or modifying household or consumer profiles for use in providing services to another business, or correcting or augmenting data acquired from another source;
detecting data security incidents, or protecting against fraudulent or illegal activity;
complying with applicable laws;
complying with a civil, criminal or regulatory inquiry, investigation, subpoena, or summons by governmental authorities;
cooperating with law enforcement agencies concerning conduct or activity that you, we or a third party reasonably and in good faith believes may violate applicable law; or
exercising or defending legal claims.

7.g Subprocessors

If we authorize any subcontractor to process, retain or use any Personal Information received from you, accessed in connection with our provision of the Software or the Services or collected on your behalf in connection with our provision of the Software or the Services, then prior to any disclosure of such Personal Information to such subcontractor, we will enter into a written agreement with such subcontractor that (A) includes all required or necessary terms to ensure that such subcontractor is deemed a service provider within the meaning of the CCPA or a subcontractor or subprocessor within the meaning of any applicable Other State Law or other Data Privacy Law, and (B) requires the subcontractor to be bound by terms that are substantially equivalent to the restrictions, duties and obligations under this Section 8.

7.h Assessments

Upon your reasonable written request, and at your expense, we will make available to you all information in our possession necessary to demonstrate our compliance with the obligations in this Section 8 and (solely to the extent required by applicable law) to enable you to conduct and document data protection assessments. Additionally, at your expense, we will allow for, and cooperate with, reasonable assessments by you or your designated assessor; alternatively, we may (at no additional charge to you) arrange for a qualified and independent assessor to conduct an assessment of our policies and technical and organizational measures in support of the obligations under this Section 8 using an appropriate and accepted control standard or framework and assessment procedure for such assessments and provide a report of such assessment to you upon request. You acknowledge and agree that any information, reports or assessments made available to you under this paragraph shall be our Confidential Information and shall be subject to all confidentiality obligations set forth in this Agreement.

7.i No Sensitive Data

You understand and accept that the Software and our other systems and networks are not designed or intended for the storage, processing or protection of Sensitive Data and may not provide adequate or legally-required security or other protections for Sensitive Data. Therefore, notwithstanding anything to the contrary in this Agreement, we will have no responsibility or liability for or in any way related to any Sensitive Data that you, your Affiliate, your Authorized Users or any other employee, contractor or agent under your control or direction or acting on your behalf may voluntarily choose to input into the Software or otherwise provide to us in connection with the Services or our performance under this Agreement.

For the purposes of this Agreement, "Sensitive Data" means the following: "protected health information" within the meaning of the Health Insurance Portability and Accountability Act or any other information concerning an individual's health; credit card, debit card or other payment card information; financial account information of any kind; identity numbers issued by any government agency such as driver's license number, Social Security number or passport number; an individual's precise geolocation; an individual's racial or ethnic origin, religious or philosophical beliefs, or union membership; information concerning an individual's sex life or sexual orientation; the contents of any individual's mail, email or text messages except where we are the intended recipient of the communication; criminal history or the results of background checks or drug screenings; passwords or other access credentials that would or could be used to access any personal accounts (other than passwords and/or access credentials used by Authorized Users to log in to and access the Software which shall not be excluded as a result of this provision); biometric information or genetic data; or any other forms of Personal Information that are included in any definition of "sensitive personal information," "sensitive data," "special categories of personal data" or similar terms or concepts as used in Data Privacy Laws.

7.j Use of Statutorily-Defined Terms

For the purposes of this Section 8, the terms "business," "controller," "combine," "commercial purpose," "consumer," "contractor," "personal information," "processing," "processor," "sell" (and its corresponding "sale"), "share" and "service provider" shall have the meanings given to such terms in CCPA, the Other State Laws or other Data Privacy Laws, as applicable.

8. Fees and Payment

8.a Fees

In exchange for the Services and the subscription to our Software, you will pay to us the fees and charges listed in each Order (the "Fees"), in accordance with the payment schedule described in the Order and this Section 9. All purchases are final, all payment obligations are non-cancelable and (except as otherwise expressly provided in this Agreement or in your Order) all Fees once paid are non-refundable.

8.b Payment Terms

You will make all payments in US dollars, using the payment method and in accordance with the payment schedule set forth on your Order or the applicable invoice. If no payment method is specified in your Order or an applicable invoice then payment shall be made by charging a credit card provided by you or a payment account set up by you via Stripe as Fees are incurred. If no payment schedule is specified in your Order or an applicable invoice then payment is due on a monthly basis, in arrears, each month on the billing date set forth in your account. Unless otherwise specified in your Order or the applicable invoice, any invoiced amounts are due 30 days from the invoice date. You are responsible for providing complete and accurate billing information and notifying us of any changes to that information.

8.c Taxes

Our Fees do not include taxes and similar assessments. We will pass along to you the cost of any sales and excise (and other similar) taxes, duties and charges of any kind imposed by a governmental authority on amounts payable to us under this Agreement, other than taxes imposed on our income. If any such amounts are owed to a governmental authority, we will calculate the amount of the obligation and include this on your bill or invoice, and we will remit those amounts to the applicable authority. If you are exempt from such taxes, you must provide us with a true, up-to-date and complete copy of your direct pay permit or exemption certificate.

9. Ownership and IP

9.a Glimpse IP

As between you and us, we are and will remain the sole and exclusive owner of all right, title and interest in and to (i) Glimpse's trademarks, service marks, trade names, logos, trade dress and other branding elements, (ii) Glimpse's proprietary Battery Cell scanning know-how, techniques, processes and methodologies, and (iii) the Software and all of its software, code, algorithms, data models, features, functionality, logic, structure and Documentation (but, for the avoidance of doubt, excluding any of Your Data or Confidential Information), including all new versions, Updates, configurations, revisions, derivative works, improvements, enhancements and modifications of any of the foregoing, the look and feel, ideas, algorithms, methods and concepts underlying or embedded in any of the foregoing and all related intellectual property rights (collectively, the "Glimpse IP"). We are not granting you any right, license or authorization with respect to the Glimpse IP except as we've specifically provided in Section 2 above. For the avoidance of doubt, nothing in this Agreement grants to you any rights whatsoever in or relating to the source code of the Software. We reserve all other rights in and to the Glimpse IP.

9.b Your Data

As between you and us, you are and will remain the sole and exclusive owner of all right, title and interest in and to all of Your Data, including all intellectual property rights relating to Your Data, subject to the rights you grant to us in this Section 10.b. You grant to us and our subcontractors all such rights and permissions in or relating to Your Data as are necessary or useful: (i) to perform the Services and provide the Software during the Term; (ii) to provide for the retention of your Scan Data for the periods described in Section 11.e; and (iii) in anonymized form only, both during and after the Term, for our internal business purposes such as improving the quality of our Glimpse IP or Services and training, tuning and otherwise improving our algorithms and data models. For the purposes of this Section 10.b, "anonymized" means in a manner that does not, and cannot reasonably be used to, identify you, your Affiliate, any Authorized User or any particular natural person as the source or subject.

9.c Usage Data

We may collect diagnostic, metadata, telemetry, technical and other statistical information regarding your, your Affiliates' and your Authorized Users' use of and the performance of the Software ("Usage Data"), such as data on what features and functions are being used by its users and to what extent, and information about users' computers, systems and software used to access the Software. We may use Usage Data for monitoring, enhancing and improving the Software. Usage Data does not and will not consist of or contain any Personal Information. Usage Data is not and will not be deemed to be Your Data under this Agreement.

10. Term and Termination

10.a Term

The term of this Agreement (the "Term") commences on the date you first accept this Agreement in accordance with Section 1 above and will continue in effect until terminated by a party pursuant to any of this Agreement's express provisions.

10.b Coordination with Orders

Orders may have their own term and termination provisions set forth therein. Expiration or termination of this Agreement shall not cause the termination of any then-outstanding Orders, which shall continue in force in accordance with their respective terms (as if this Agreement had not expired or terminated), except in the case of a termination of this Agreement for cause in accordance with Sections 3.b, 11.c, 12.c, 13.b or 15.h, which such termination shall also cause the immediate termination of all then-outstanding Orders.

10.c Termination

In addition to any other termination rights described in this Agreement:

this Agreement may be terminated at any time by either party, effective when that party provides written notice to the other, if the other party materially breaches this Agreement and such breach (i) remains uncured 30 days after the non-breaching party provides the breaching party with written notice regarding such breach, or (ii) is the second (or higher ordinal) breach of the limitations and restrictions in Section 2.b;
either party may terminate an affected Order (without terminating this Agreement in its entirety), effective on written notice to the other party, if the other party materially breaches an obligation specific to the affected Order, and such breach remains uncured 30 days after the non-breaching party provides the breaching party with written notice of such breach; and
this Agreement may be terminated by either party, effective when that party provides written notice to the other, at any time when there are no remaining outstanding Orders (e.g., all Software subscription terms under any and all Orders have expired and there are no in process Orders related to Scanning Services or Additional Services).

10.d Effect of Termination

The exercise of any right of termination under this Agreement will not affect any rights of either party (e.g., rights to payment) that have accrued prior to the effective date of termination and will be without prejudice to any other legal or equitable remedies to which a party may be entitled. If this Agreement is terminated or expires, then: (i) all rights, licenses and authorizations granted by one party to the other will immediately terminate and we may disable your, your Affiliates' and your Authorized Users' access to the Software (except with respect to any perpetual subscriptions to the Software, which will only terminate if we have terminated this Agreement or the applicable Order for cause in accordance with Sections 11.c, 13.b or 15.h), and (ii) except as expressly set forth below in Section 11.e (Retention of Your Data) we each will cease all use of the other party's Confidential Information and (upon written request) promptly destroy or return all of the other party's Confidential Information.

10.e Retention of Your Data

If you have procured a perpetual subscription to the Software under one or more applicable Orders, we will retain copies of the Scan Data resulting from our Scanning Services under such Orders until such time as you ask us in writing to destroy it. Other than the Scan Data resulting from our Scanning Services under Orders with a perpetual subscription to the Software (which shall be retained as described in the prior sentence), we will only retain copies of your Scan Data until six months after the expiration or termination of the last of your term-limited Software subscriptions under this Agreement, so that you may retrieve such copies of the Scan Data and export them outside of the Portal using a method we make available to you for this purpose, after which time we reserve the right to destroy the copies of your Scan Data hosted and stored in the systems associated with the Software and our Services. In any case, if we terminate this Agreement for cause in accordance with Sections 11.c, 13.b or 15.h, then we reserve the right to destroy all copies of your Scan Data immediately upon such termination. Other than as set forth in this Section, you understand and agree that, unless otherwise expressly agreed by us in writing, we will have no obligation to retain or continue to store or host any of Your Data on the Portal or otherwise following the expiration or termination of your Software subscriptions.

10.f Surviving Terms

The preamble of this Agreement, this Section 11.f and Sections 2.b (Limitations and Restrictions), 2.c (Responsibility for Affiliates and Authorized Users), 7 (Confidentiality), 8 (Data Privacy – Service Provider / Processor Clauses), 10 (Ownership and IP), 11.d (Effect of Termination), 11.e (Retention of Your Data), 13 (Indemnification), 14 (Limitations of Liability), 15 (Miscellaneous) and 16 (Definitions) will survive any expiration or termination of this Agreement.

11. Representations and Warranties

11.a By You Regarding Your Data

You represent and warrant that: (i) your, your Affiliates' and your Authorized Users' collection and use of all of Your Data (including your choice to upload and process Your Data to and through the Software, either directly or through us on your behalf, as contemplated in this Agreement) and your Confidential Information is consistent with your own privacy policy and your license agreements and other agreements with third parties; (ii) you either own, or have all rights, permissions and consents that are necessary to permit us, our subcontractors and the Software to store, upload to the Portal, use and otherwise process as contemplated in this Agreement, all of Your Data and your Confidential Information; (iii) our and our subcontractors' access to and storage, use and other processing of Your Data and your Confidential Information (including all Personal Information included in Your Data and your Confidential Information) in accordance with this Agreement does not and will not violate any applicable law, rule or regulation or infringe, misappropriate or otherwise violate any intellectual property right, privacy right or other right of any person or entity. You will defend us from and against any Claims brought by a third party, and you will indemnify and hold us harmless from any Losses associated with such third party Claims, in each case to the extent the same are based on allegations that you, your Affiliate, your Authorized Users or any other employee, contractor or agent under your control or direction or acting on your behalf have acted or failed to act in any manner that would breach or violate any representation or warranty in this Section 12.a.

11.b By Us Regarding Our Services

We warrant that we will perform the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services. If we breach the warranty in this Section 12.b and if you provide written notice to us of the Services not performed in accordance with this Section 12.b within 30 days after completion thereof, then we will remedy such breach by re-performing the non-conforming Services at no additional cost to you. YOUR TERMINATION RIGHTS SET FORTH IN SECTION 11.c AND/OR THE PROMPT RE-PERFORMANCE OF SERVICES SHALL BE YOUR SOLE AND EXCLUSIVE REMEDIES, AND GLIMPSE'S ONLY AND ENTIRE OBLIGATION AND LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY, FOR ANY BREACH OF THE WARRANTY IN THIS SECTION 12.b.

11.c By Us Regarding Our Software

We warrant that the Software will at all times during the Software subscription term set forth in the applicable Order substantially conform in all material respects with its Documentation and the written specifications expressly set forth by you and us (if any) in your Order. However, the warranty in this Section does not apply to any non-conformance resulting from: (x) use of the Software in a manner inconsistent with this Agreement or its Documentation, (y) the availability of, operation of or access to your, your Affiliate's, your Authorized User's or a third party's software, systems or networks, or (z) Your Data. If we breach the warranty set forth in this Section 12.c, we will, at our sole option and expense, take any of the following steps to remedy such breach:

modify, fix or correct the Software to remedy such non-conformity;
replace the non-conforming portion of the Software, as applicable, with functionally equivalent software; or
if the remedies in clauses (i) and (ii) are not feasible by commercially reasonable standards, terminate this Agreement and promptly refund to you on a pro rata basis the share of any Software subscription fees prepaid by you for the future portion of the applicable subscription term that would have remained but for such termination (a "Refund of Fees").

If we do not cure a warranty breach or terminate this Agreement as permitted by the immediately preceding sentence within 30 days after our receipt of written notice of such breach, you will have the right to terminate this Agreement and we will promptly provide to you a Refund of Fees. YOUR TERMINATION RIGHTS SET FORTH IN SECTION 11.c AND/OR THE REMEDIES SET FORTH IN THIS SECTION 12.c SHALL BE YOUR SOLE AND EXCLUSIVE REMEDIES, AND GLIMPSE'S ONLY AND ENTIRE OBLIGATION AND LIABILITY TO YOU OR ANY OTHER PERSON OR ENTITY, FOR ANY BREACH OF THE WARRANTY IN THIS SECTION 12.c.

11.d Disclaimer of Warranties

EXCEPT FOR THE EXPRESS LIMITED WARRANTIES IN SECTIONS 12.b AND 12.c, ALL SERVICES AND GLIMPSE IP ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS AND WE HEREBY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. For the avoidance of doubt, you understand, acknowledge and agree that with respect to any measurements, metrology summaries or metrics that are the outputs of any Battery Cell scans that we conduct under this Agreement or your (or any Affiliate's or Authorized User's) use of any measurement tools or other features or functions made available via the Portal: (i) such measurements, metrology summaries or metrics are approximations only and we do not and will not in any way warrant or guarantee their accuracy, (ii) any reliance you, your Affiliate, your Authorized User or any other person or entity places on such measurements, metrology summaries or metrics is entirely at your, your Affiliate's, your Authorized User's or such other person's or entity's own risk, and (iii) we will not be responsible or liable to you, your Affiliate, your Authorized User or any other person or entity in any way for any inaccuracy in, or any reliance placed on or use made of, such measurements, metrology summaries or metrics.

12. Indemnification

12.a By Us

We will defend you from and against any Claims brought by a third party, and will indemnify and hold you harmless from any Losses associated with such third party Claims, in each case to the extent the same are based on allegations that the Software or your use thereof (excluding Your Data or Confidential Information) infringe any U.S. patent, copyright or trademark of such third party, or misappropriate the trade secret of such third party (each, an "Infringement Claim"). Notwithstanding the foregoing, we will have no liability or obligation with respect to any Infringement Claim to the extent based upon or arising out of: (i) access to or use of the Software in combination with any hardware, system, software, network or other materials or service not provided by us (or authorized in the Documentation or otherwise in writing by us); (ii) modifications or configurations made to the Software by anyone other than us or a party acting under our direction without our prior written consent; or (iii) any action taken by you, your Affiliate or any Authorized User relating to use of the Software that violates this Agreement.

12.b Mitigation for Infringement Claims

If the Software is, or in our opinion is likely to be, the subject of an Infringement Claim, or if your, your Affiliate's or any Authorized User's use of the Software is enjoined or threatened to be enjoined, we will, at our option and our sole cost and expense: (i) obtain the right for you to continue to use the allegedly infringing Software as contemplated by this Agreement, (ii) modify or replace the allegedly infringing Software to make such Software (as so modified or replaced) non-infringing, without causing a material loss of features or functionality, or (iii) if the remedies in clauses (i) and (ii) are not feasible within commercially reasonable standards, then we may terminate this Agreement upon written notice and without any liability to you and we will promptly provide a Refund of Fees.

12.c Indemnification Procedures

If a party reasonably believes it is entitled to indemnification under this Agreement, such party (the "Indemnified Party") promptly must give the other party (the "Indemnifying Party") written notice of the claim of indemnification, provided that an Indemnified Party's failure to notify the Indemnifying Party will not diminish the Indemnifying Party's indemnification obligations except to the extent the Indemnifying Party is materially prejudiced as a result of such failure. Any such notice shall set forth in reasonable details the facts, circumstances and basis of the applicable Claim. Upon receipt of notice of the assertion of a Claim, the Indemnifying Party will have the right to control the defense or settlement of the matter at its own expense and with counsel of its choice, provided that the Indemnifying Party shall not enter into any settlement of the relevant Claim without written consent of the Indemnified Party (not to be unreasonably withheld). The Indemnified Party must cooperate reasonably with the Indemnifying Party, at the Indemnifying Party's expense, to facilitate the defense, compromise or settlement of any Claims. The Indemnified Party may employ separate counsel and participate in any indemnified Claim, but the fees and expenses of such counsel will be at the expense of the Indemnified Party.

13. Limitation of Liability

IN NO EVENT WILL WE BE LIABLE TO YOU, YOUR AFFILIATES, YOUR AUTHORIZED USERS OR TO ANY OTHER PERSON OR ENTITY FOR DAMAGES OF ANY KIND OR NATURE (INCLUDING, FOR THE AVOIDANCE OF DOUBT, DIRECT DAMAGES) IN EXCESS OF THE AMOUNT OF FEES ACTUALLY PAID BY YOU TO US UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING YOUR FIRST CLAIM AGAINST US HEREUNDER. ADDITIONALLY, UNDER NO CIRCUMSTANCES WILL WE HAVE ANY LIABILITY WITH RESPECT TO OUR OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR LOSS OF PROFITS OR FOR CONSEQUENTIAL, SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING, AND WHETHER SUCH LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE. THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

However, the foregoing limitations of liability shall not apply to our indemnification obligations in Section 13, to a breach of our obligations under Section 7 (Confidentiality) or Section 8 (Data Privacy – Service Provider / Processor Clauses), or to our fraud, gross negligence or willful misconduct.

14. Miscellaneous

14.a Entire Agreement

Each Order is incorporated by reference into this Agreement, and each Order forms a part of this Agreement. Likewise, this Agreement is incorporated by reference into each Order and this Agreement forms a part of each Order. This Agreement and each Order together constitute the entire agreement between the parties on the subject matter hereof, and supersede all prior negotiations, understandings or agreements (oral or written) and all past dealing or industry custom. We are not and will not be bound by (and we hereby expressly reject throughout the Term) any of the terms and conditions of (or that may be incorporated by reference in) any other purchase order, receipt, acceptance, confirmation or other correspondence provided by you.

14.b Amendment, Severability and Waiver

No change, consent or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. Any delay or failure of either party to enforce its rights, powers or privileges under this Agreement, at any time or for any period, will not be construed as a waiver of such rights, powers and privileges, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.

14.c Governing Law

This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflicts of law provisions.

14.d Notices

All notices under this Agreement must be in writing and may be delivered by electronic mail, certified or registered mail, overnight courier, or personal delivery, in each case to the address or e-mail address specified in your Order.

14.e Assignment

Neither party may assign or otherwise transfer this Agreement without the prior written consent of the other party; provided that either party may assign this Agreement in its entirety without the other party's consent to its affiliates or to an entity that acquires all or substantially all of the business or assets of such party to which this Agreement pertains, whether by merger, reorganization, acquisition, sale or otherwise. This Agreement will be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties.

14.f No Third Party Beneficiaries

This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

14.g Relationship of the Parties

The relationship between the parties is that of independent contracting parties. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever.

14.h Force Majeure

Neither party will be liable for any delays or non-performance of its obligations arising out of actions or decrees of governmental authorities (including enactment or adoption of law or regulation) following the first date you accept this Agreement, criminal acts of third parties, telecommunication failures not caused by a party, problems with equipment or software provided by other parties, earthquakes, flood, and other natural disasters, war, terrorism, acts of God, or fire, or other similar causes not within such party's reasonable control (each, a "Force Majeure Event"). In the event of any failure or delay caused by a Force Majeure Event, the affected party shall 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. Either party may terminate this Agreement if a Force Majeure Event affecting the other party continues substantially uninterrupted for a period of 30 days or more.

14.i Equitable Remedies

Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 2.b (Limitations and Restrictions) or Section 7 (Confidentiality) of this Agreement would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to seek equitable relief, including in a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

14.j Conflict in Terms

If there is a conflict between this Agreement and your Order, the terms of the Order shall govern the provision of the Software and/or the Services involved; provided, however, that nothing in your Order may modify or supersede anything in Sections 2.b (Limitations and Restrictions), 10 (Ownership and IP), 12 (Representations and Warranties), 13 (Indemnification) or 14 (Limitation of Liability) of this Agreement unless an express cross-reference is made to the relevant provision of this Agreement in the Order and the parties have expressly agreed in the Order to modify or alter the relevant provision of this Agreement.

15. Definitions

Capitalized terms that are used as defined terms in this Agreement have the meanings described below:

"Affiliate" means another entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with you. The term "control" (including the terms "controlled by" and "under common control with") means the power to direct or cause the direction of the management and policies of an entity through the ownership of more than fifty percent (50%) of the voting securities of the entity.

"Authorized User" means your (or your Affiliates') employees, independent contractors, consultants, agents, subcontractors, vendors or other service providers to you who access and use the Portal by and through your customer account using the specified user accounts we have provided to you for this purpose, in each case so long as such access and use is in furtherance of (or in order to support) the Permitted Use of the Software in accordance with this Agreement. "Authorized User" may also include your customer, client, collaborator or other third party (and the employees or other personnel thereof) if and only if (i) you have notified us and identified the customer, client, collaborator or other third party in writing, (ii) we have provided prior written consent to treating that customer, client, collaborator or other third party as an "Authorized User" under this Agreement in each instance, and (iii) such customer, client, collaborator or other third party (and the employees or other personnel thereof) accesses and uses the Portal by and through your customer account using the specified user accounts we have provided to you for this purpose.

"Claim" means any claim, suit, action or proceeding or investigation by a governmental agency.

"Documentation" means the then-current online, electronic and written user documentation and guides we make available to you, your Affiliates and your Authorized Users which describe the functionality, components, features or requirements of the Software, as we may update from time to time in our discretion.

"Harmful Code" means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (a) computer, software, firmware, hardware, system or network or (b) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby.

"Loss" means any and all losses, damages, liabilities, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification and the cost of pursuing any insurance providers.

"Order" means the purchase order, order form, order purchase confirmation page, check-out page, or similar ordering webpage, landing page or written document presented and offered to you by us and executed, confirmed or otherwise accepted by you, in each case that references this Agreement. An Order may specify applicable pricing and fees, a limit to the number of Authorized Users who may use the Software, how long you are authorized to use the Service, and other terms.

"Permitted Use" means to view, monitor, download, analyze and manage scan images and scan data relating to Battery Cells within the Portal, in each case for your own (or your Affiliate's or Authorized User's) benefit and for your own (or your Affiliate's or Authorized User's) internal business purposes in the ordinary course of such business.

"Your Data" means (i) the scan images and scan data of the Battery Cells that you ship to us that we upload into the Portal as part of our Scanning Services and any derivatives of or results of processing those images and data (the "Scan Data"), and (ii) any other information, data, records or other materials that you, your Affiliates or your Authorized Users provide to us in connection with the Services or that you, your Affiliates or your Authorized Users upload to the Software for the purposes of being processed using the Portal.

Appendix 1 – Other State Laws

The Virginia Consumer Data Protection Act (as amended, restated or supplemented from time-to-time, the "VCDPA");
The Colorado Privacy Act (as amended, restated or supplemented from time-to-time, the "CPA");
The Connecticut Personal Data Privacy and Online Monitoring (as amended, restated or supplemented from time-to-time, the "CPDPOMA"); and
Effective from and after December 31, 2023, the Utah Consumer Privacy Act (as amended, restated or supplemented from time-to-time, the "UCPA").

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