Terms & Conditions

By accepting the subscription order (the “Order”) or accessing the Poppy Solution or the Application (as defined in section 1 below) the customer identified therein (“Customer”) agrees to these terms and conditions (“Terms”) under which Poppy Health, Inc. makes available the Poppy Solution (as defined in Section 1 below):

1. ACCESS AND USE. Subject to and conditioned on Customer’s payment of all Fees (as defined below) and compliance with the Terms, Poppy (a) will provide Customer with access to: (i) Poppy’s web-based application, 3D viewer, dashboard and real-time system (the “Application”); (ii) the software program(s) created or licensed by Customer that utilize the Application (“Software”), documentation or data related to the Services; and (iii) any professional services set out in an applicable Order (“Professional Services”) (together, with any Technical Support (defined below) (the “Services”); and (b) hereby grants to Customer a limited, revocable, non-exclusive, non-sublicensable, non-transfer- able right and license, during the Order Term (as defined below), to: (i) access and use the applicable Products (defined below), solely for use by Customer’s employees and independent contractors (“Permitted Users”) in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use and subject to any restrictions set forth herein and in the applicable Order. Poppy will perform Professional Services if set out in an applicable Order. Poppy shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Application. In these Terms, “Products” mean all Software, Application, any documentation made available by Poppy to Customer and, unless otherwise agreed in an Order, any deliverables, and all Modifications (as defined below) that Poppy makes available to Customer. The Products and Services together comprise the “Poppy Solution”. The term “Poppy Solution” excludes any Third-Party Product. Poppy Solution may include certain third-party technology that is licensed under separate license terms, and not under these Terms or other third party products that are owned by third parties (collectively “Third-Party Products”). Any acquisition by Customer of such Third-Party Products, and any exchange of data between Customer and any such provider of Third-Party Products is solely between Customer and the applicable Third-Party Products provider. Poppy does not warrant or support Third-Party Products or other third party products, offerings or services, whether or not they are designated by Poppy as “certified” or otherwise. Poppy cannot guarantee the continued availability of such Third-Party Products features and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third-Party Products ceases to make the Third-Party Products available for interoperation or otherwise in connection with the corresponding service features in a manner acceptable to Poppy.

2. USE OF PRODUCTS & CUSTOMER RESPONSIBILITIES. Software. Any use of the Software, firmware and other programs contained within the Applications, and of any other Software distributed or used in connection with the Services, shall comply with the terms of the Agreement, and any other end user license agreements accompanying such software, as such agreements may be amended from time-to-time.

3. SUSPENSION & MODIFICATIONS. Poppy may from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity under these Terms: (a) suspend Customer’s access to or use of the Poppy Solution or any component thereof: (i) for scheduled maintenance; (ii) if there is a Force Majeure (defined below) event; (iii) if Customer or any Permitted User violates any provision of these Terms, including any of the restrictions set out in Section 4 below; (iv) to address any emergency security concerns; (v) if required to do so by a governmental or regulatory authority or as a result of a change in applicable law; or (vi) for non-payment of undisputed Fees when due; and (b) make modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations (“Modifications”) to the Poppy Solution.

4. RESTRICTIONS & CUSTOMER RESPONSIBILITIES. (a) Restrictions. The Services shall only be used by the Customer for the purposes authorized under these Terms. Customer will not itself, and will not permit others (including but not limited any Permitted Users) to: (i) sub-license, sell, rent, lend, lease or distribute the Products or any intellectual property rights therein, or otherwise make the Products or any Poppy Solution available to any third parties other than Permitted Users; (ii) use the Poppy Solution to permit timesharing, service bureau use or commercially exploit the Poppy Solution; (iii) use or access the Poppy Solution: (A) in violation of any applicable law or intellectual property right; (B) in a manner that threatens the security or functionality of the Poppy Solution; or (C) for any purpose or in any manner not expressly permitted in these Terms; (iv) use the Poppy Solution to create, collect, transmit, store, use or process any Customer Data: (A) that Customer does not have the lawful right to create, collect, transmit, store, use or process; (B) that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property rights or other rights of any third party (including any moral right, privacy right or right of publicity); or (C) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (v) Modify the Poppy Solution; (vi) reverse engineer, de-compile or disassemble the Poppy Solution; (vii) remove or obscure any proprietary notices or labels on the Poppy Solution, including brand, copyright, trademark and patent or patent pending notices; (viii) access or use the Poppy Solution for the purpose of building a similar or competitive product or service; or (ix) perform any vulnerability, penetration or similar testing of any Poppy Solution. Customer shall not directly or indirectly export, re-export or import all or any portion of the Poppy Solution without first obtaining all required licenses, permits and permissions. Poppy makes no representation or warranty that the Poppy Solution may be exported without Customer first obtaining appropriate licenses or permits under applicable law, or that any such license or permit has been, will be, or can be obtained. (b) Customer Responsibilities. Customer will be responsible for maintaining the security of the Customer account, passwords (including but not limited to administrative and user passwords), and files, and for all uses of Customer account with or without Customer’s knowledge or consent. Customer will promptly notify Poppy of any actual or suspected unauthorized use of the Poppy Solution. Poppy reserves the right to suspend, deactivate, or replace a Permitted User’s account, access credentials or password, if it determines that a Permitted User’s account may have been used for an unauthorized purpose. Customer will ensure that all individual users of the applicable Poppy Solution, including Permitted Users comply with the terms and conditions of these Terms.

5. TERM AND TERMINATION. (a) Order Term. Each Order will commence as of its effective date and continue for the term set forth therein unless terminated earlier in accordance with the terms herein (the “Order Term”). Except as otherwise specified in an Order, such subscription Order will automatically renew for additional periods equal to the expiring Initial Order Term, (a “Renewal Order Term”, and together with the Initial Order Term, the “Order Term”) unless either party provides the other party with written notice of its intention not to renew not less than 30 days before the expiration of the then current Order Term. In no circumstances is Customer entitled to a refund of any Fees paid up front. (b) Termination. Either party may terminate an Order by giving to the other party written notice of termination upon the occurrence of any of the following events: (a) the other party breaches or defaults on any of the material terms or conditions of these Terms or any Order and fails to cure such breach or default within thirty (30) days of receipt of written notice thereof; except that, in the event of any breach that is incapable of being cured, such termination will be effective immediately (including but not limited to in event of Customer’s non payment of Fees as provided in Section 7); or (b) immediately on notice, if the other party makes any assignment for the benefit of creditors or is unable to pay its debts as they mature in the ordinary course of business, or any proceedings are instituted by or against the other party under any insolvency laws or for reorganization, receivership or dissolution. If any Order is terminated before the Order Term has completed and without cause for breach by Poppy (“Early Termination”), Customer shall (1) make a payment to Poppy for the remaining Fees owing under the Order, and (2) pay for the return of any Poppy Products in the possession of the Customer. (d) Effect of Termination. Unless otherwise specified in herein, upon any expiration or termination of the Order: (a) the Order and subscriptions shall terminate; (b) Customer must: (1) immediately cease (and ensure that all Permitted Users immediately cease) accessing or using the Poppy Solution; (2) promptly deliver to Poppy the original and all copies of Poppy Property, materials and work in progress produced in connection with the performance of the Services (in any form or media within the possession or under the control of the Customer, and including, but not limited to, all hardware and software); (3) take such other action as is required to provide Poppy control over such materials and work in progress; (c) except as otherwise required by applicable law, Poppy shall destroy and remove its access to any Customer Data and shall have no obligation to retain or otherwise provide Customer Data; and (d) all Fees due and payable and any amounts due to Poppy are immediately due and are to be immediately paid by the Customer to Poppy. (e) Survival. All sections of these Terms which by their nature should survive termination will survive termination, including, without limitation, accrued rights to fees, confidentiality obligations, disclaimers, indemnification and limitations of liability, miscellaneous and this Section.

6. ADDITIONAL SERVICES AND SUPPORT (a) Generally. During the Order Term, Poppy will provide support services in accordance with the terms herein. Poppy will provide email technical support for the Services during Poppy’s normal support business hours 9:00 a.m. – 8:00 p.m. Eastern Time, Monday through Friday, excluding federal holidays, to assist in identifying and diagnosing problems with the Application, such as error messages, troubleshooting, and basic “how-to” functionality questions. (“Technical Support”). All support related emails shall, if necessary, be prioritized according to the severity of the issue, as determined by Poppy in its reasonable discretion. Poppy may provide onsite support as mutually agreed upon by the parties. Any expenses incurred by Poppy shall be billed in accordance with the applicable Order. Poppy will not be held responsible for support failures caused by failures in telecommunications networks, misuse of the Poppy Solution by Customer, Permitted Users or other events outside Poppy’s reasonable control. (c) Customer Support Contacts. Customer will appoint up to five (5) people as its authorized customer support contacts. Upon acknowledgement by Poppy, authorized technical support contacts may contact Poppy for support. (d) Assistance. Customer shall provide reasonable assistance and cooperation to allow Poppy to define and resolve any error or defect in the Application. This includes providing (i) a detailed problem description; (ii) reasonable efforts to reproduce the problem; and (iii) reasonable access to authorized customer support contacts.

7. FEES. Customer will pay Poppy the fees (“Fees”) in the amounts and in accordance with the payment terms set forth on the applicable Order. Poppy will issue invoice to Customer at the beginning of the month for that month’s subscription, unless otherwise stated in the Order. In the event that Customer wishes to add additional Products or Services pursuant to an applicable Order (e.g., increase the number of Permitted Users, additional support hours), Customer shall be required to pay additional Fees associated with the additional Products or Services, prorated for the remainder of the Order Term. Hourly additional fees will be calculated to the nearest quarter hour. Poppy will provide a quotation for all other additional support requested by Customer after Customer provides Poppy with a request for same. Customer shall pay the Fees and amounts set forth in all invoices within thirty (30) days from Customer’s receipt of invoice. Post-due amounts will bear an interest rate of one and one-half percent (1.5%) per month (or the highest rate permitted by law, if lower). Customer may not withhold or set off any amounts due to Poppy. Poppy may: (1) suspend, in accordance with Section 3, Customer’s and all Permitted Users’ access to any portion or all of the Product until such amounts are paid in full; or (2) terminate the Order immediately on notice (which may be sent by electronic means to Customer), without incurring any obligation or liability to Customer or any other person by reason of such suspension or termination. Any permitted suspension of the Services or termination by Poppy pursuant to these Terms will not excuse Customer from its obligation to make payments of Fees. All Fees and other amounts payable by Customer under these Terms are exclusive of taxes and similar assessments. Customer will be responsible for the payment of all applicable federal, state, local, municipal, sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, provincial, municipal, territorial or local governmental, or regulatory authority on any amounts payable by Customer hereunder, except for taxes based on the net income of Poppy. All Fees shall be set forth in American dollars (USD) unless otherwise noted in the applicable Order. Poppy reserves the right to increase the Fees specified in an Order upon any renewal of a Renewal Order Term provided, however, that Poppy must provide Customer not less than thirty (30) days advance notice of the proposed rate increase.

8. WARRANTIES AND DISCLAIMERS. (a) Customer Representation Covenants and Warranties. Customer represents and warrants to and covenants with, Poppy that: (i) the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case, as required by applicable laws including applicable privacy laws, to enable Poppy to provide the Poppy Solution, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Poppy and to or from all applicable third parties; (ii) Customer and its Permitted Users will comply with all applicable laws; and (iii) Customer is not named on any Canadian, U.S., or other list of persons or entities prohibited from receiving Canadian or U.S. exports, or from transacting with any Canadian; or U.S. entity and it is not a national of, or a company registered in, any jurisdiction in which the provision of the provision of the other party’s goods or services is prohibited under Canadian, U.S., or other applicable laws. (c) Disclaimers. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS, POPPY DOES NOT WARRANT THAT THE POPPY SOLUTION WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE POPPY SOLUTION. THE POPPY SOLUTION (AND ANY PART THEREOF) ARE PROVIDED “AS IS”. OTHER THAN AS EXPRESSLY PROVIDED FOR HEREIN, POPPY MAKES NO WARRANTIES UNDER THESE TERMS WITH RESPECT TO ANY THIRD-PARTY PRODUCTS, HARDWARE OR OTHER PRODUCTS EMBEDDED IN OR INCLUDED WITH THE POPPY SOLUTION OR FURNISHED TO CUSTOMER BY POPPY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, POPPY HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL, OR STATUTORY WARRANTIES, REPRESENTATIONS, AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. THE WARRANTY IN THESE TERMS SHALL NOT APPLY TO AND POPPY SHALL HAVE NO LIABILITY FOR ANY ISSUES ARISING FROM CHANGES IN OR TO CUSTOMER’S EQUIPMENT OR PREMISES. CUSTOMER ACKNOWLEDGES AND AGREES THAT EFFECTIVE AIR CHANGE RATE RESULTS ARE BASED ON CONDITIONS AT CUSTOMER’S PREMISES AT THE TIME THAT AN APPLICABLE AIR TEST IS CONDUCTED BY POPPY AND SUCH AIR CHANGE RATE RESULTS ARE THEREFORE SUBJECT TO INHERENT UNCERTAINTIES, RISKS AND CHANGES IN CIRCUMSTANCES THAT ARE DIFFICULT TO PREDICT AND MANY OF WHICH ARE OUTSIDE OF POPPY’S CONTROL.

9. LIMITATION OF LIABILITY. The following provisions have been negotiated by the Parties and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy: (A) EXCEPT AS PROVIDED IN SECTION 9 (C), IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY UNDER THESE TERMS EXCEED THE AMOUNT OF FEES PAID BY CLIENT FOR THE SERVICES IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THESE TERMS WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL POPPY’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THESE TERMS OR ANY ORDERS. (B) EXCEPT AS PROVIDED IN SECTION 9 (C), TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO OTHER PARTY FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (i) SAVINGS, (ii) PROFIT, (iii) DATA, (iv) USE, OR (v) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THESE TERMS OR ANY ORDERS, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES. (C) SECTIONS 9 (A) AND 9(B), WILL NOT APPLY TO LIMIT: (I) THE INDEMNIFICATIONS SET OUT IN SECTION 10; (II) LIABILITY ARISING FROM A PARTY’S FAILURE TO COMPLY WITH APPLICABLE LAWS APPLICABLE TO A PARTY; (III) CUSTOMER’S PAYMENT OBLIGATIONS UNDER THESE TERMS OR ANY ORDERS INCLUDING ANY ORDER; (IV) CUSTOMER’S BREACH OR VIOLATION OF SECTIONS 4 AND 8 (B); (V)CUSTOMER’S BREACH OF SECTION 11 (A) (CONFIDENTIALITY); (VI) LIABILITY ARISING FROM A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD.

10. INDEMNIFICATION. (a) By Poppy. Poppy will indemnify, defend and hold harmless Customer and its officers, directors, employees, and agents (each, a “Customer Indemnitee”) from and against any and all losses, damages, claims, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (“Losses”) finally awarded by a court of competent jurisdiction, incurred by a Customer Indemnitee arising out of or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Claim”) by a third party (other than an affiliate or a Customer Indemnitee) that arise from or relate to any allegation that the Products infringe any third-party intellectual property right in United States. The foregoing obligation does not apply to any Claim or Losses arising out of or relating to any: (A) incorporation of any Poppy Solution into, or any combination, operation, or use of any Poppy Solution with, any products or services not provided or authorized by Poppy; (B) modification of any Poppy Solution other than by Poppy; (C) unauthorized use of the Solution; (D) Customer’s indemnity in Section 10 (b); (E) to the extent any Claim arises from Customer’s or any Permitted User’s modification, alteration, or misuse of any part of the Poppy Solution, or any use not in accordance with these Terms, or the Training provided by Poppy hereunder. THIS SECTION 10 (A) STATES THE POPPY’S SOLE LIABILITY TO, AND THE CUSTOMER INDEMNITEES EXCLUSIVE REMEDY AGAINST, POPPY FOR ANY THIRD PARTY CLAIM DESCRIBED IN THIS SECTION, AND IS IN LIEU OF ANY REPRESENTATION OR WARRANTIES OF NONINFRINGEMENT, WHICH ARE DISCLAIMED. (b) By Customer. Customer will defend, indemnify and hold harmless Poppy, its affiliates and their respective officers, directors, employees and agents, successor and assigns (each, a “Poppy Indemnitee”) from and against any and all Losses incurred by a Poppy Indemnitee arising out of or relating to any Claim by a third party (other than an affiliate of a Poppy Indemnitee) that arise from or relate to: (i) Customer Data; (ii) Customer’s breach of Section 4; or 8 (b); (iii) unauthorized use of the Poppy Solution by the Customer or any Permitted User; (iv) use of the Poppy Solution (or any part thereof) by Customer or any Permitted User in combination with any third party software, application or service; or (v) any act or omission of Customer or any Permitted User related to the use of the Poppy Solution, including any claim of bodily injury or damage to tangible property caused by the negligence or willful misconduct of Customer or any Permitted Users. Notwithstanding the foregoing, Customer will not have any obligation under this Section to the extent any Claim arises from Poppy’s breach of these Terms or gross negligence or willful misconduct. (c) IP Infringement. If a Product becomes, or in Poppy’s reasonable opinion is likely to become, the subject of a Claim of infringement of intellectual property rights, then Poppy may at its option and sole cost and expense: (i) obtain the right for the Customer to continue to use the affected Product materially as contemplated by these Terms or any Order; (ii) Modify or replace Product, in whole or in part, to seek to make the Product (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Product under these Terms; or (iii) if Poppy determines that neither of the foregoing two options are reasonably available, by written notice to Customer, terminate these Terms or applicable Order, require Customer to immediately cease all use of the Product or part or feature thereof and provide pro rata refund of any unused prepaid Fees for the terminated Product, if applicable. THE FOREGOING IS IN LIEU OF ANY REPRESENTATION, COVENANTS OR WARRANTIES OF NONINFRINGEMENT, WHICH ARE DISCLAIMED. (c) Indemnification Procedures. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (i) the indemnified party promptly notifying the indemnifying party in writing of any threatened or actual claim or suit, provided, however, that failure to give prompt notice will not relieve the indemnifying party of any liability hereunder (except to the extent the indemnifying party has suffered actual material prejudice by such failure); (ii) the indemnifying party having sole control of the defense or settlement of any claim or suit (provided the indemnifying party may not settle any claim without the indemnified party’s written consent unless it unconditionally releases the indemnified party of all liability); and (iii) the indemnified party (at the indemnifying party’s expense) reasonably cooperating with the indemnifying party to facilitate the settlement or defense of any claim or suit.

11. CONFIDENTIALITY, PRIVACY & PROPRIETARY RIGHTS. (a) Confidentiality. (A) Each party (“Receiving Party”) understands that the other party (“Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (“Confidential Information” of the Disclosing Party). Confidential Information of Poppy includes non-public information regarding features, functionality and performance of the Product and all Poppy Property. Confidential Information of Customer includes non-public data provided by Customer to Poppy to enable the provision of the Product (“Customer Data”) and where Disclosing Party is Poppy, Poppy’s Confidential Information includes Poppy Property, these Terms and all Orders. During the Term and at all times thereafter, the Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information; and (ii) not to use any such Confidential Information except to carry out its obligations under these Terms and any Order. During the Term and at all times thereafter it will not, except to exercise its rights or perform its obligations under these Terms, disclose Confidential Information of the Disclosing Party to any person, except: (x) in the case of the Customer to its Permitted Users having a “need to know” and that are required, as a condition of their employment or otherwise through written agreements to maintain confidentiality of the Confidential Information, and to such other recipients as the Discloser may approve in writing; or (y) in the case of Poppy to Poppy’s: (1) employees, independent contractors, advisors, consultants, agents and its affiliates, that have a “need to know” for the purposes of receiving or providing the Poppy Solution and that have entered into written agreements no less protective of such Confidential Information than these Terms; and (2) subcontractors and sub-processors for the purpose of providing the Poppy Solution. Confidential Information will not include any information that the Receiving Party can document: (a is or becomes generally available to the public; (b) was in its possession or known by it prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party. (B) Notwithstanding Section 11 (A), Receiving Party agrees that it may disclose Disclosing Party’s Confidential Information to: (i) the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Receiving Party promptly notifies Disclosing Party in writing of such required disclosure and cooperates with Disclosing Party to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the party’s business; or (iii) in the case of Poppy, to potential assignees, acquirers or successors of Poppy if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Poppy. (C) Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Sections 11 (A) and 11 (C), would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, 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. (D) Upon the termination or expiration of these Terms and all Orders, each party will promptly return to the other party or destroy all Confidential Information (except for Customer Data which is addressed in Section 5) of the other party in its possession or control within a reasonable amount of time in accordance with the Receiving Party’s data destruction practices. Notwithstanding the foregoing, Poppy may retain any electronically archived Customer’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in these Terms. (E) Poppy do not guarantee the security of data transmitted over the internet or public networks in connection with Customer use of the applicable Product. (b) Privacy. Customer understands that information of an identifiable individual (“Personal Information”) transferred by Customer or its Permitted Users to Poppy hereunder (“Personal Information”) will be treated in accordance with Poppy’s privacy policy located at https://www.poppy.com /privacy-policy or such other place as may be updated by Poppy’s from time to time (the “Privacy Policy”). Poppy may, without Customer consent, revise its Privacy Policy from time to time, as is customary business practice in its field (e.g., to incorporate improvements in its solutions offerings or align its practices with changing regulatory requirements). (c) Proprietary Rights. (A) Customer is and shall remain the sole and exclusive owner of all data collected in connection with the provision of the Poppy Solution (the “Data”). Customer grants to Poppy: (i) a nonexclusive, worldwide, royalty-free, transferable, sublicensable, and fully paid-up licence during the Term (defined below) to access, collect, use, process, store, disclose, transmit, transfer, copy, Modify and display Data to provide the Poppy Solution; and (ii) a nonexclusive, perpetual, worldwide, royalty-free, irrevocable, transferable, sublicensable and fully paid-up licence to access, collect, use, process, store, disclose, transmit, transfer, copy, Modify and display the Data to: (1) improve and enhance the Product and its other offerings; (2) generate Poppy Metadata (defined below); and (3) generate aggregated statistical data that: (A) is anonymized; (B) cannot be re-identified by Poppy; and (C) does not contain any Personal Information or identify any customers of Customer or Customer (such data, information and materials, the “Usage Data”). Usage Data is not Customer Data or Data and Poppy may use, process, store, disclose and transmit the Usage Data for any purpose and without restriction or obligation to Customer of any kind. (B) Poppy or its licensors retain all rights, title and interest including all intellectual property rights in and to: (i) Poppy Solution; (ii) documentation; (iii) the Poppy’s Confidential Information; (iv) anything used, developed or delivered by or on behalf of Poppy under these Terms or any Order including any Usage Data, Poppy Metadata (defined below), reports and deliverables; and (v) any Modifications to the foregoing (“Poppy Property”). Poppy or its licensors retain all rights, title and interest including all intellectual property rights in and to the metadata that is generated by or resulting from the processing of the Customer Data and that results from the ordinary course of the operation of the Poppy Solution Services (“Poppy Metadata”). (C) Customer grants to Poppy and its affiliates a worldwide, perpetual, irrevocable and royalty-free license to use and incorporate into the Product any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Permitted Users relating to the operation of Product or any of Poppy’s affiliates’ services (“Feedback”). Nothing in these Terms will restrict Poppy’s right to use, profit from, disclose, publish or otherwise exploit any Feedback, without compensation to the Customer or Permitted Users and without any obligation to the Customer or any Permitted User. Motion is not obligated to use any Feedback. (D) All rights not expressly granted by Poppy to Customer under these Terms are reserved.

12. MISCELLANEOUS. An electronic communication (“Written Notice”) shall be deemed written notice if sent to the electronic mail address as set forth below. Poppy may use and display Customer’s name, logo, trademarks, and service marks on Poppy’s website and in Poppy’s marketing materials in connection with identifying Customer as a customer of Poppy. These Terms (including all Orders) constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes any other written or oral understandings relating hereto. Any terms and conditions appearing on a purchase order or similar document issued by Customer, or in Customer’s procurement, invoicing, or vendor onboarding portal: (i) do not apply to the Poppy Solution; (ii) do not override or form a part of these Terms (including without limitation any Order); and (iii) are void. These Terms may not be modified or amended except in a writing signed by the parties. If any provision of these Terms is held by a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Neither party may assign or transfer these Terms or any Order, or any of its rights or obligations hereunder, including by operation of law, without the prior written consent of the other party; provided, however, a party may assign these Terms or any Order, without obtaining such consent, to a successor-in-interest in connection with a merger, acquisition, consolidation or sale of all or substantially all of such party’s business or assets. Poppy may assign these Terms (including all Orders) by change of control without the Customer’s written consent and without notice. Any attempt by a party to assign its rights or obligations under these Terms or any Order, other than as permitted by this Section, will be void and of no effect. Subject to the foregoing, these Terms inures to the benefit of and is binding upon the parties and their respective successors and permitted assigns. Poppy may engage third parties, including cloud service providers, to provide the Poppy Solution. These Terms and any Orders will be governed and construed in accordance with the laws of the State of Delaware and the federal laws of the United States applicable therein without regard to conflict of laws principles. The parties will initiate any lawsuits in connection with these Terms or any Orders in the State of Delaware, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. Notwithstanding the foregoing, a party may commence lawsuits to seek injunctive relief with respect to a violation of its intellectual property rights or breach of confidentiality obligations, in each case, in any appropriate jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms. Neither party will be liable for delays caused by any event or circumstances beyond that party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving that party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third-party websites (“Force Majeure”). This Section does not apply to any of Customer’s obligations under Sections 4, 5, 7 and 10 (b). Except as otherwise provided in these Terms, the parties’ rights and remedies under these Terms or any Order are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of these Terms are for reference purposes only and have no substantive effect. Poppy’s relationship to Customer is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and neither party will represent to any third party that it has, any authority to act on behalf of the other party. It is the express wish of the parties that these Terms and all related documents be drawn up in English.