2. ORDERS; PROVISIONING; WIDTH.AI RESPONSIBILITIES 2.1. Orders by Customer and Customer Affiliates. Customer and its Affiliates may enter into Order Forms with Width.ai. If an Affiliate of Customer enters into an Order Form pursuant to the terms of this Agreement, such Affiliate will be bound by the terms of this Agreement as if it were an original party hereto and all references to “Customer” herein will apply equally to such Affiliate. 12.2. Provision of Width.ai SaaS Products and Support Services. Width.ai will (i) make the Width.ai SaaS Product available to Customer pursuant to this Agreement and the applicable Order Form or Authorized Partner Order, as applicable, and (ii) provide Support Services for the Width.ai SaaS Product to Customer in accordance with the standard terms and policies in this document, as such policies and/or support terms may be updated by Width.ai from time to time. 2.3. No Commitments Regarding Future Functionality. Customer’s purchases are not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by Width.ai regarding future functionality or features. 2.4. Hosting Providers. Width.ai will deploy the Width.ai SaaS Product in a cloud environment managed by Width.ai. Customer acknowledges that the Width.ai SaaS Products may be hosted by third-party hosting providers (the “Hosting Providers”). Notwithstanding any other provision of this Agreement, Width.ai will not be liable for any problems, failures, defects, or errors with the Width.ai SaaS Product to the extent caused by Hosting Providers. The parties acknowledge that the fees charged for the Width.ai SaaS Product reflect the fact that Width.ai is not responsible for the acts or omissions of Hosting Providers. 2.5. Data Security. During the term of this Agreement, Width.ai will maintain a formal security program materially in accordance with applicable data security and privacy laws and industry standards under which Width.ai implements and maintains physical, administrative and technical safeguards designed to protect the security and integrity of the Width.ai SaaS Product and Customer Data. 2.6. Usage Data. Width.ai may collect and use Usage Data to develop, improve, upgrade, enhance, support, and operate Width.ai products and services. Additionally, Width.ai may use Usage Data to determine fees due from Customer for Width.ai SaaS Products for which Width.ai charges fees on a usage or consumption basis. Width.ai may not disclose any Usage Data that includes Customer’s Confidential Information to any third party except (i) in accordance with Section 7 (Confidentiality), or (ii) to the extent the Usage Data is aggregated and anonymized such that Customer and Customer’s Users cannot be identified. 2.7. Availability. Width.ai will use commercially reasonable efforts to make the Width.ai SaaS Product available 24 hours a day, 7 days a week; provided, however, that such availability is subject to the following exceptions: (i) Maintenance Windows (as defined and described below), (ii) Scheduled Upgrade Windows (as defined and described below), (iii) unavailability that arises from Customer’s use of Free Trial Services or Preview Services, (iv) Width.ai’s suspension or termination of Customer’s right to access and use the Width.ai SaaS Product in accordance with the terms of the Agreement, (v) unavailability caused by Customer’s acts or omissions or Customer’s (including any third-party vendor or provider of Customer’s) hardware, software, systems or network, (vi) unavailability caused by Customer’s use of the Width.ai SaaS Product other than as authorized under the Agreement, and (vii) unavailability caused by circumstances beyond Width.ai’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, epidemic, pandemic, act of terror, war, embargo, strike or other labor problem (other than one involving Width.ai’s employees), Internet or hosting service provider downtime, failure or delay, or denial of service attack. “Maintenance Window” means a period of time (i) during which Width.ai may perform general maintenance of, and implement changes and updates to, the Width.ai SaaS Product and (ii) with respect to which Width.ai will make commercially reasonable efforts to provide Customer with notification via email at least eight (8) hours in advance of such activities, except that in the case Width.ai identifies a critical security issue requiring immediate attention, Width.ai may, in its discretion, perform the necessary maintenance activities with less advance notice in order to promptly address such critical security issue. “Scheduled Upgrade Window” means a period of time during which Width.ai may perform upgrade activities within Customer’s Width.ai SaaS Product environment. Width.ai will provide Customer with (i) at least three (3) week’s prior notice via email of any planned upgrade activities that may affect the availability of Customer’s Width.ai SaaS Product environment (the “Upgrade Notice”), and (ii) an opportunity to indicate a preferred time frame for the Scheduled Upgrade Window that is within the span of time during which Width.ai plans to perform such upgrade activities. Width.ai will make commercially reasonable efforts to accommodate Customer’s preferred time frame but does not guarantee the availability of such preferred time frame. The duration of a Scheduled Upgrade Window will vary based on factors including, but not limited to, the type of upgrade and the size and complexity of Customer’s Width.ai SaaS Product environment. In the Upgrade Notice, Width.ai will provide Customer with information regarding the estimated time required for the Scheduled Upgrade Window.
3. CUSTOMER ACCESS AND USE; CUSTOMER RESPONSIBILITIES 3.1. Access and Use. Width.ai will make the Width.ai SaaS Product available to Customer, and Customer and its Users may access and use the Width.ai SaaS Product, during the Subscription Period, solely for Customer’s internal business purposes subject to the terms of this Agreement and the applicable Order Form and in accordance with applicable Documentation. 3.2. Access and Use by Customer Affiliates. An Affiliate of Customer may access the Width.ai SaaS Product for which Customer has purchased a Subscription, provided that (i) such Affiliate agrees in writing with Customer to be bound by and accepts all of the obligations imposed upon Customer under this Agreement (other than payment obligations for which Customer is solely responsible to Width.ai or its Authorized Partner, as applicable) or Customer agrees to be responsible for the acts and omissions of such Affiliate in relation to this Agreement, (ii) the Affiliate is not a Width.ai customer under separate contract, nor actively engaged with Width.ai in discussions for the 2purchase of Width.ai Products at the time an Order Form is executed pursuant to this Agreement, (iii) the Affiliate is not a direct competitor of Width.ai, and (iv) all of Customer’s obligations under this Agreement and the applicable Order Form will remain in force and undiminished.
FEES AND PAYMENT 5.1. Fees. Customer will pay all fees as specified in Order Forms. Unless otherwise stated in an Order Form, Subscription fees, if applicable, will be chareged each month upon commencement of the Subscription Period, and while the Subscription has not been canceled. 5.2. Payment. Customer agrees to pay fees due to Width.ai at the beginning of each month, without setoff or counterclaim, and without any deduction or withholding. While the Subscription is active, customers will be charged each month for Subscription fees. Width.ai may elect to charge Customer interest at a rate of 1.5% per month or the highest rate permitted by law, whichever is lower, on all late payments. Except as expressly set forth in this Agreement or an applicable Order Form, all payment obligations are non-cancelable, and all fees are non-refundable. 5.3. Payment Method and Currency. Except as may otherwise be set forth in an Order Form, all payments due under the Agreement will be made (i) by bank wire transfer, electronic ACH deposit or company check in immediately available funds to an account designated by Width.ai, and (ii) in the currency set forth in the applicable Order Form (or USD where no currency is specified). 5.4. Taxes. The fees charged hereunder do not include taxes. Customer will pay any and all sales, use, excise, import, export, value added, GST or similar taxes (“Transaction Taxes”) and all government permit or license fees, and all customs, duty, tariff and similar fees levied upon the sale of subscriptions to the Width.ai SaaS Products, exclusive of income taxes based on Width.ai’s net income. Customer will pay any costs associated with the collection of Transaction Taxes, including penalties and interest. If Customer is required to pay any withholding tax, charge or levy with respect to payments to Width.ai (“Withholding Taxes”), Customer agrees to gross up payments actually made to Width.ai such that Width.ai receives sums due in full and free of any deduction of any such Withholding Taxes, subject to Width.ai providing documentation to support the lowest legal withholding rate under the applicable double tax treaty. Width.ai will cooperate with Customer to enable Customer to pay the lowest legal withholding rate by providing any available tax documents in its possession to support such rate. Under current United States income tax laws, Width.ai cannot receive any tax benefits or credits for withheld tax amounts by Customer. 5.5. Authorized Partner Transactions. If Customer purchases Width.ai SaaS Product offerings from an Authorized Partner, Customer’s payment obligations to such Authorized Partner will be as agreed between Customer and such Authorized Partner.
11. TERM AND TERMINATION 11.1. Term of Agreement. This Agreement commences as of the Effective Date and will remain in effect until terminated in accordance with its terms. 11.2. Termination. If there is no Order Form or Authorized Partner Order then-currently in effect, either party may terminate this Agreement upon written notice to the other party. Additionally, either party may terminate (i) this Agreement (including all Order Forms hereunder or Authorized Partner Orders) if (a) the other party materially breaches the terms of this Agreement or an Order Form and does 6not remedy such breach within thirty (30) days after its receipt of written notice of such breach; or (b) if the other party terminates its business activities or becomes insolvent, admits in writing to inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority; or (ii) any individual Order Form or Authorized Partner Order if the defaulting party fails to perform any material provision of this Agreement with respect to such Order Form or Authorized Partner Order and does not cure the breach within thirty (30) days after receipt of written notice thereof. Termination or expiration of an individual Order Form or Authorized Partner Order will not affect any other Order Form, Authorized Partner Order or this Agreement except with respect to such terminated Order Form or Authorized Partner Order. 11.3. Effects of Termination on Payment. If this Agreement or any Order Form or Authorized Partner Order is terminated by Customer in accordance with Section 11.2 due to material breach by Width.ai, Width.ai will refund any prepaid fees for Width.ai SaaS Products covering the remainder of the applicable Subscription Period after the effective date of termination. If this Agreement or any Order Form or Authorized Partner Order is terminated by Width.ai in accordance with Section 11.2, Customer will, in addition to any other remedies available to Width.ai under this Agreement or at law, pay any and all unpaid fees in connection with terminated Order Forms or Authorized Partner Orders. If such fees are attributable to Customer’s purchase of a Subscription to a Width.ai SaaS Product for a defined Subscription Period, Customer will pay unpaid fees for the portions of such Subscription Period both prior to and after the effective date of termination. 11.4. Data Retrieval and Deletion. 11.5. Surviving Provisions.1
11.6. Suspension. In addition to any of its other rights or remedies (including, without limitation, any termination rights) under this Agreement, Width.ai reserves the right to suspend provision of the Width.ai SaaS Product to Customer (i) if Customer is more than thirty (30) days overdue on a payment obligation in connection with this Agreement, (ii) if Width.ai deems such suspension necessary due to Customer’s breach of Sections 3.3 (Customer Responsibilities) or 3.4 (Use Restrictions), (iii) if Width.ai reasonably determines that suspension is necessary to avoid material harm to Width.ai or its customers, including if the Width.ai SaaS Product is experiencing a denial of service attack or other attacks or disruptions outside of Width.ai’s control, or (iv) as required by law or at the request of governmental entities. 11.7 Cancellation: Your Subscription can be cancelled at any point through written notice to Width LLC or through the Pumice.ai dashboard under Subscription. Your Subscription will renew until cancelled as clearly outlined inside the Pumice.ai dashboard. Width.ai is not responsible for customers not cancelling through these mediums. Customers are fully aware of these options and agree to the terms of cancellation by signing up.