Terms of Service

These Terms of Service (this “Agreement“) govern access to and use of the subscription software services, professional services, AI-enabled features, and related support offerings provided by Hi Marley, Inc. (“Hi Marley“). By executing an Order Form that references this Agreement, the entity identified as the customer in that Order Form (“Customer“) agrees to be bound by this Agreement. This Agreement is effective as of the date the applicable Order Form is executed (“Effective Date“). If Customer does not agree to these terms, Customer may not access or use the Services. Capitalized terms used but not defined in the body of this Agreement have the meanings set forth in Schedule 1 (Definitions).

1. SUBSCRIPTION SERVICES

1.1 Provision of Subscription Services

Hi Marley will make the Subscription Services available to Customer and its Authorized Users pursuant to this Agreement, the Documentation, and the relevant Order Form during the Subscription Term, solely for Customer’s internal business purposes. Hi Marley’s Affiliates and Authorized Contractors may perform certain aspects of the Services and access Customer Data, provided that Hi Marley remains fully liable for ensuring such performance is carried out in accordance with this Agreement. Customer’s Affiliates and Authorized Contractors may access certain aspects of the Services, provided that Customer remains fully liable for ensuring compliance with this Agreement.

Customer’s use of the Subscription Services includes the right to access the Subscription Services in accordance with the Order during the Subscription Term. So long as Hi Marley does not materially degrade the functionality described in the Documentation, Hi Marley may (i) modify the systems and environments used to deliver the Subscription Services to reflect changes in technology, industry practices, and patterns of system use, and (ii) update the Documentation accordingly. Subsequent updates, upgrades, and enhancements generally available to all subscribing customers will be made available to Customer at no additional charge; the purchase of Subscription Services is not contingent on the delivery of any future functionality or features. New features or enhancements may be marketed separately and may require additional fees at Hi Marley’s sole discretion.

1.2 Trial Services

If Customer registers or accepts an invitation for Trial Services, Hi Marley will make such Trial Services available on a trial basis until the earlier of (a) the end of the applicable trial period, or (b) the end date specified in the applicable Order. Trial Services are provided for evaluation purposes only, not for production use. Customer bears sole responsibility for any Customer Data uploaded to Trial Services, and Hi Marley assumes no liability therefor. Trial Services may contain bugs or errors and may be subject to additional terms. Hi Marley may discontinue Trial Services at any time in its sole discretion. Trial Services may require acceptance of additional terms prior to Customer’s permitted use.

TRIAL SERVICES ARE NOT CONSIDERED “SERVICES” HEREUNDER AND ARE PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND. HI MARLEY SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO TRIAL SERVICES.

1.3 Support Services

Hi Marley will provide Support Services to Customer in accordance with Schedule 2 (Support Services) attached hereto, which Hi Marley may update from time to time provided no such update materially diminishes the service levels in effect as of the commencement of the then-current Subscription Term.

2. SECURITY AND DATA PRIVACY

2.1 Security and Internal Controls

Hi Marley shall (i) maintain a security framework of policies, procedures, and controls—including administrative, physical, and technical safeguards—for the protection of the security and integrity of the Subscription Services and Customer Data, using currently available technologies and in accordance with prevailing industry practices and standards, as more fully described in Hi Marley’s Security Annex published on trust.himarley.com; (ii) access and use Customer Data solely to perform its obligations under this Agreement; and (iii) perform periodic testing by independent third-party audit organizations, including annual SOC 2 audits. Upon written request, Hi Marley will make its most recent SOC 2 Type II report available under confidentiality obligations. Hi Marley will not materially diminish these controls during the Subscription Term.

2.2 Data Privacy

The terms of the Hi Marley Data Processing Addendum (“DPA“) published on trust.himarley.com are incorporated by reference and apply to the extent Customer Data includes Personal Information as defined in the DPA. Hi Marley shall process Personal Information as a data processor on behalf of Customer, in accordance with Customer’s instructions and as necessary to provide the Subscription Services, and will reasonably cooperate with Customer to respond to data subject rights requests under Applicable Law.

2.3 Compliance with Law

Hi Marley will comply with all Applicable Law governing the provision of the Subscription Services, including applicable security breach notification laws. For the avoidance of doubt, Hi Marley’s obligations under this Section do not extend to laws or regulations that are specific to Customer’s industry and are not generally applicable to information technology services providers.

3. CUSTOMER OBLIGATIONS AND USE OF AI-ENABLED SERVICES

3.1 Customer Responsibilities

Customer shall (i) access and use the Services in accordance with this Agreement and Applicable Law; (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Hi Marley promptly of any such unauthorized access or use; and (iii) ensure that all End Users are informed and have provided any consent required under Applicable Law, including for the use of AI-Enabled Services and the receipt and recording of communications via the Services, and provide Hi Marley with prompt notice of any change in an End User’s consent status.

3.2 Customer Data

Customer has and shall maintain all rights necessary to allow Hi Marley to provide the Subscription Services, including the right to send Customer Data to Hi Marley and to allow Hi Marley to access, use, and store Customer Data to provide the Subscription Services. Customer is responsible for its legal and regulatory compliance in its use of any Subscription Services. Hi Marley may disclose Customer Data to Authorized Contractors that provide large language models for the purpose of providing the AI-Enabled Services. Hi Marley will not permit any such Authorized Contractor to train or improve its large language models using Customer Data.

3.3 Services Restrictions

Customer shall not:

• Resell or redistribute: license, sublicense, sell, resell, rent, lease, transfer, distribute, or otherwise exploit the Subscription Services;
• Security testing: use or permit others to use any security testing tools to probe, scan, or attempt to penetrate or ascertain the security of the Subscription Services;
• Reverse engineering: copy, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Subscription Services or any part thereof, or otherwise attempt to discover any source code or modify the Subscription Services;
• Competitive use: create a competitive offering based on the Subscription Services;
• Benchmarks: disclose any benchmark or performance tests of the Subscription Services;
• Harmful actions: take any action that risks harm to others or to the security, availability, or integrity of the Services; or
• Unlawful use: access or use the Services in any manner that violates Applicable Law.

3.4 AI Input and AI Output

AI Input and AI Output are Customer Data. Customer is solely responsible for AI Input. AI Input that infringes third-party rights, or contains Personal Information obtained or used in violation of Applicable Law or this Agreement, is prohibited. Hi Marley may block AI Input, disable AI Output, or disable the AI-Enabled Services if Hi Marley reasonably believes a violation has occurred or is imminent, and may use technologies—including those of third parties—to screen for violations. Customer shall not, nor permit any third party to, use AI Output to train, fine-tune, or improve any large language model or any AI system that competes, directly or indirectly, with the Subscription Services.

3.5 AI Requirements and Human Oversight

AI-Enabled Services, including AI Agents, are not human and are not a substitute for human oversight. AI Outputs are not tested, verified, endorsed, or guaranteed to be accurate, complete, or current by Hi Marley. Customer and its End Users are responsible for all decisions made, advice given, actions taken, and failures to take action based on their use of the AI-Enabled Services, including any actions taken by AI Agents on Customer’s behalf. Customer is responsible for defining the scope of actions AI Agents are authorized to take on its behalf. Customer should independently review and verify AI Outputs before relying on them. Customer may not (and may not permit any third party to) represent that any AI Outputs are human-generated.

3.6 Prompt and Agent Confidentiality

Hi Marley’s system prompts, prompt templates, AI Agent configurations, orchestration, and agentic infrastructure are Hi Marley’s Confidential Information and proprietary trade secrets. Customer shall not attempt to access, extract, reproduce, or reverse engineer Hi Marley’s technology or configurations through any means, including through repeated querying, automated testing, or probing of the AI-Enabled Services. Any Hi Marley prompts or agent configurations disclosed in the course of providing Services are subject to Section 7 (Confidentiality).

4. PROFESSIONAL SERVICES

4.1 Standard Professional Services

A description of Hi Marley’s standard Professional Services offerings, including training and implementation, may be found in the Documentation. Standard Professional Services may be identified in an Order without the need for a separate SOW.

4.2 Custom Professional Services

For any non-standard Professional Services, Hi Marley will provide Customer with Professional Services as set forth in the applicable SOW. Each SOW will include, at a minimum: (i) a description of the Professional Services and any Deliverable to be delivered to Customer; (ii) the scope of Professional Services; (iii) the schedule for provision of such Professional Services; (iv) the applicable fees and payment terms, if not specified elsewhere; and (v) identification of any work product that constitutes a Deliverable, if applicable.

4.3 Change Orders

Changes to an SOW or Order Form shall require a written change order (“Change Order“) signed by authorized representatives of both parties prior to implementation. Change Orders shall be deemed part of, and subject to, this Agreement.

4.4 Designated Contact and Cooperation

Each party will designate a primary point of contact for matters relating to Professional Services under each SOW. Customer will cooperate with Hi Marley, provide accurate and complete information, and provide such assistance and access as Hi Marley may reasonably request. Where applicable, Hi Marley personnel on Customer premises will comply with Customer’s reasonable rules regarding safety, conduct, and security.

5. FEES AND PAYMENT

5.1 Fees

Customer shall pay all fees specified in each Order or SOW. Fees are payable in U.S. Dollars. Payment obligations are non-cancelable, and fees paid are non-refundable, except as otherwise expressly set forth herein. All amounts payable will be made without setoff or counterclaim and without any deduction or withholding.

(a) Subscription Services. Customer shall pay all applicable fees and any additional fees if Customer exceeds the allotted capacity or other applicable limits specified in the Order (“Overages“). Fees are based on Subscription Services purchased, regardless of actual usage (subject to any Overages). All Subscription Services are deemed accepted upon delivery. Subscription Services purchased cannot be decreased during the relevant Subscription Term.

(b) Professional Services. All Professional Services are accepted in accordance with any acceptance criteria set forth in the relevant SOW. Customer shall reimburse Hi Marley for approved out-of-pocket expenses incurred in connection with the performance of Services, against reasonably detailed invoices.

5.2 Invoicing

(a) Subscription Services. Unless otherwise specified in an Order, fees for Subscription Services will be invoiced annually in advance. Overage fees for usage-based Services will be calculated and invoiced monthly in arrears. For Overages of Authorized Users, Hi Marley will notify Customer of the additional Authorized Users. Customer will have until the end of the calendar month immediately following such notice to reduce its Authorized User count to at or below the permitted number. If Customer does not reduce its Authorized User count accordingly, Hi Marley will invoice the pro-rated amounts for the incremental Authorized Users for the remainder of the then-current Term.

(b) Professional Services. Unless otherwise set forth in an SOW, all fees and expenses for standard Professional Services (as described in Section 4.1) shall be invoiced and paid in advance. All fees and expenses for non-standard Professional Services (as described in Section 4.2) will be invoiced monthly in arrears.

5.3 Payment

Unless otherwise stated in the applicable Order or SOW, Customer agrees to pay all invoiced amounts within thirty (30) days of Customer’s receipt of invoice. If Customer fails to pay any amounts due by the due date, Hi Marley may (i) suspend the Subscription Services upon fifteen (15) days’ prior written notice until amounts are paid in full, and (ii) charge interest at the lesser of 1.5% per month or the maximum rate permitted by Applicable Law, together with all reasonable collection costs and attorneys’ fees. Hi Marley will not exercise its right to charge interest if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the matter.

5.4 Taxes

Fees exclude all sales, value-added, and other taxes and duties imposed on the sale, delivery, or use of any Services. Unless Customer provides a valid exemption certificate for the applicable jurisdiction, Customer is responsible for all taxes, levies, duties, and assessments—including value-added, sales, use, or withholding taxes (collectively, “Taxes“)—assessed or collected by any governmental body arising from Hi Marley’s provision of the Services, except taxes assessed on Hi Marley’s net income. If Hi Marley is required to pay or collect Taxes related to Customer’s use or receipt of the Services, Customer agrees to promptly reimburse Hi Marley.

6. PROPRIETARY RIGHTS

6.1 Subscription Services and AI Infrastructure

Except for the rights expressly granted under this Agreement, Hi Marley and its licensors retain all right, title, and interest in and to the Subscription Services and Documentation, including all related intellectual property rights. Customer will not delete or alter any copyright, trademark, or other proprietary notices of Hi Marley. For the avoidance of doubt, Hi Marley’s AI Agents, agentic infrastructure, system prompts, prompt templates, and domain-specific prompt libraries—whether made available as part of the Subscription Services or incorporated into Professional Services—constitute Hi Marley’s retained intellectual property and are not subject to any ownership grant to Customer under this Agreement.

6.2 Third-Party Tools

The Contingent Features of the Subscription Services are designed to interoperate with Third-Party Tools. Such Third-Party Tools are made available without liability or obligation by Hi Marley and are subject to the applicable Third-Party Provider’s terms and conditions. Hi Marley does not provide Support Services for Third-Party Tools.

6.3 Customer Data

As between Customer and Hi Marley, Customer is and will remain the sole and exclusive owner of all right, title, and interest in and to all Customer Data, including all intellectual property rights. Customer hereby grants Hi Marley, its Affiliates, and applicable Authorized Contractors all rights necessary to host, use, process, store, display, and transmit Customer Data solely as necessary to provide the Services. By using Contingent Features, Customer grants Hi Marley permission to (i) obtain and access information and data from the applicable Third-Party Provider and (ii) provide Customer Data to such Third-Party Provider to the extent necessary to enable the Contingent Features.

Customer represents that it has, and warrants that it shall maintain, all rights required to allow Hi Marley to compile, use, store, and retain aggregated Customer Data—including in combination with other customers’ data—for internal product security and development purposes, provided that no such use will include information that can identify Customer or its End Users. Hi Marley acquires no right, title, or interest in Customer Data beyond the limited licenses granted herein.

6.4 Deliverables

Excluding any property that constitutes Outside Property, Deliverables shall be the sole property of Customer upon Customer’s payment in full of all associated Professional Services fees. Hi Marley shall execute, and at Customer’s reasonable written request require its personnel to execute, any document necessary to establish or perfect Customer’s rights in such Deliverables.

6.5 Outside Property License

To the extent Hi Marley incorporates any Outside Property into Deliverables, Hi Marley grants Customer a limited, royalty-free, non-exclusive, non-transferable license (without right to sublicense) to use such Outside Property solely as necessary for and in conjunction with Customer’s use of the applicable Deliverables.

6.6 Feedback

Hi Marley may seek, or Customer may provide, suggestions, enhancement requests, recommendations, or other feedback relating to the Subscription Services (“Feedback“). Hi Marley will exclusively own all right, title, and interest in and to any Feedback, and Customer hereby assigns all such rights to Hi Marley, including all intellectual property rights therein.

7. CONFIDENTIALITY

7.1 Definition of Confidential Information

“Confidential Information” means all confidential or proprietary information of a party (“Disclosing Party“) disclosed to the other party (“Receiving Party“), whether orally or in writing, that is designated as confidential or that reasonably would be understood to be confidential given the nature of the information and circumstances of disclosure. Confidential Information includes the terms and conditions of this Agreement (including pricing in Order Forms and SOWs), benchmark or similar test results, technology and technical information, security information and audit reports, business and marketing plans, and Hi Marley’s system prompts, prompt templates, AI Agent configurations, agentic infrastructure, and orchestration frameworks. Notwithstanding the foregoing, Hi Marley may reference and use Customer’s name, logos, and the nature of Services provided in Hi Marley’s business development and marketing efforts.

7.2 Exceptions

Confidential Information does not include information that (i) is or becomes publicly available without a breach of any obligation owed to the Disclosing Party; (ii) was already known to the Receiving Party at the time of disclosure without a breach of any obligation; (iii) is subsequently received from a third party without breach of any obligation owed to the Disclosing Party; or (iv) is independently developed by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information.

7.3 Protection of Confidential Information

The Receiving Party shall use the same degree of care to protect the Disclosing Party’s Confidential Information as it uses to protect its own Confidential Information of like kind (but in no event less than reasonable care). Except with the Disclosing Party’s written consent, the Receiving Party shall (i) not use Confidential Information for any purpose outside the scope of this Agreement, and (ii) limit access to Confidential Information to those of its and its Authorized Contractors’ and Affiliates’ employees, contractors, and agents who need such access for purposes consistent with this Agreement and who are bound by confidentiality obligations no less stringent than those set forth herein.

7.4 Compelled Disclosure

The Receiving Party may disclose Confidential Information to the extent required by Applicable Law or legal process, provided that the Receiving Party (i) provides prompt written notice to the extent legally permitted, (ii) provides reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to oppose the disclosure, and (iii) limits disclosure to that required by Applicable Law or legal process.

8. REPRESENTATIONS, WARRANTIES, AND DISCLAIMERS

8.1 Hi Marley Representations and Warranties

Hi Marley represents and warrants that (i) Hi Marley has the legal authority to enter into this Agreement; (ii) the Subscription Services will materially conform to the relevant Documentation; (iii) the functionality and security of the Subscription Services will not be materially decreased during a Subscription Term; and (iv) Professional Services will be performed in a competent and workmanlike manner consistent with generally accepted industry standards.

8.2 Warranty Remedies

For any failure of Subscription Services or Professional Services to conform to their respective warranties, Hi Marley’s sole and exclusive liability and Customer’s sole and exclusive remedy shall be: (a) in the case of a breach of Section 8.1(ii) or (iii), Hi Marley will use commercially reasonable efforts to correct such failure; or (b) in the case of a breach of Section 8.1(iv), Hi Marley will re-perform the affected Professional Services. If the foregoing remedies are not commercially practicable, Hi Marley may, in its sole discretion, terminate the applicable Order or SOW upon written notice and, as Customer’s sole remedy, refund (a) any Subscription Services fees pre-paid by Customer for the unexpired portion of the current Subscription Term for the non-conforming Subscription Services, or (b) any fees paid for the portion of Professional Services giving rise to the breach.

8.3 Customer Representations and Warranties

Customer represents and warrants that (i) it has the legal authority to enter into this Agreement, and (ii) it will use the Services in accordance with this Agreement and Applicable Law.

8.4 General Disclaimer

EXCEPT AS EXPRESSLY PROVIDED HEREIN, HI MARLEY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, ORAL OR WRITTEN, STATUTORY, OR OTHERWISE, AND HI MARLEY HEREBY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS, INCLUDING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY WITH RESPECT TO THE QUALITY, PERFORMANCE, ACCURACY, OR FUNCTIONALITY OF THE SERVICES, OR THAT THE SERVICES ARE OR WILL BE ERROR-FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT.

8.5 AI Disclaimer

(a) Generative AI Output. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT, HI MARLEY PROVIDES NO PERFORMANCE STANDARDS OR SERVICE LEVEL COMMITMENTS WITH RESPECT TO GENERATIVE AI OUTPUT. HI MARLEY DOES NOT WARRANT THAT GENERATIVE AI OUTPUT WILL BE UNINTERRUPTED, ERROR-FREE, ACCURATE, COMPLETE, RELEVANT, OR UNIQUE. CUSTOMER WILL NOT RELY ON GENERATIVE AI OUTPUT AS A SOURCE OF TECHNICAL OR PROFESSIONAL ADVICE OR FACTUAL INFORMATION. CUSTOMER ACCEPTS THAT GENERATIVE AI OUTPUT IS BASED ON PROBABILISTIC REASONING AND MAY NOT BE ACCURATE, COMPLETE, RELEVANT, USEFUL, UNIQUE, OR ERROR-FREE. HI MARLEY MAKES NO REPRESENTATIONS AND PROVIDES NO INDEMNITIES WITH RESPECT TO GENERATIVE AI OUTPUT.

(b) Functional AI Output. WITH RESPECT TO FUNCTIONAL AI OUTPUT, HI MARLEY WILL USE COMMERCIALLY REASONABLE EFFORTS TO DELIVER ACCURATE AND COMPLETE RESULTS. NOTWITHSTANDING THE FOREGOING, HI MARLEY DOES NOT WARRANT THAT FUNCTIONAL AI OUTPUT WILL BE ERROR-FREE IN ALL CASES, AND HI MARLEY RECOMMENDS THAT CUSTOMER APPLY HUMAN REVIEW PRIOR TO USE OF FUNCTIONAL AI OUTPUT IN HIGH-STAKES OR REGULATED COMMUNICATIONS. CUSTOMER AND ITS END USERS REMAIN SOLELY RESPONSIBLE FOR ALL DECISIONS MADE, ACTIONS TAKEN, AND FAILURES TO TAKE ACTION BASED ON THEIR USE OF FUNCTIONAL AI OUTPUT. ALL DISCLAIMERS IN SECTION 8.4 APPLY TO FUNCTIONAL AI OUTPUT EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8.5(b).

9. MUTUAL INDEMNIFICATION

9.1 Indemnification by Hi Marley

Hi Marley shall indemnify, defend, and hold Customer harmless from and against any judgments, settlements, costs, and fees (including reasonable attorneys’ fees) resulting from any third-party claim alleging that Customer’s use of the Subscription Services infringes or misappropriates the valid intellectual property rights of a third party (a “Claim Against Customer“); provided that Customer (a) promptly gives Hi Marley written notice of the Claim Against Customer; (b) gives Hi Marley sole control of the defense and settlement (provided that Hi Marley may not settle any Claim Against Customer that imposes a direct financial liability on Customer or includes an admission of fault by Customer); and (c) provides all reasonable assistance, at Hi Marley’s expense.

In the event of a Claim Against Customer, or if Hi Marley reasonably believes the Subscription Services may infringe or misappropriate, Hi Marley may, at its sole discretion and at no cost to Customer, (i) modify the Subscription Services so they no longer infringe or misappropriate, (ii) obtain a license for Customer’s continued use, or (iii) terminate Customer’s subscriptions for such Subscription Services and refund any prepaid fees covering the remainder of the applicable term. Hi Marley shall have no obligation to indemnify, defend, or hold Customer harmless to the extent a Claim Against Customer arises from or is related to (i) Customer Data; (ii) Customer’s continued use after Hi Marley’s notice to discontinue; (iii) use of Services in combination with equipment or software not supplied by Hi Marley where the Services themselves would not be infringing; or (iv) Customer’s breach of this Agreement.

9.2 Indemnification by Customer

Customer shall indemnify, defend, and hold Hi Marley harmless from and against any judgments, settlements, costs, and fees (including reasonable attorneys’ fees) resulting from any third-party claim alleging that Customer Data violates Applicable Law or a third party’s rights (a “Claim Against Hi Marley“); provided that Hi Marley (a) promptly gives Customer written notice of the Claim Against Hi Marley; (b) gives Customer sole control of the defense and settlement (provided that Customer may not settle any Claim Against Hi Marley that imposes a direct financial liability on Hi Marley or includes an admission of fault by Hi Marley); and (c) provides all reasonable assistance, at Customer’s expense.

9.3 Exclusive Remedy

This Section 9 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section.

10. LIMITATION OF LIABILITY

10.1 Aggregate Liability Cap

EXCEPT FOR (I) EACH PARTY’S OBLIGATIONS SET FORTH IN SECTION 9 (MUTUAL INDEMNIFICATION); (II) INFRINGEMENT OR MISAPPROPRIATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; (III) DAMAGES FOR BODILY INJURY, DEATH, OR DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY; OR (IV) ANY OTHER LIABILITY THAT MAY NOT BE LIMITED UNDER APPLICABLE LAW (THE “EXCLUDED MATTERS”), IN NO EVENT SHALL EITHER PARTY’S TOTAL AGGREGATE LIABILITY RELATING TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY) EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER FOR THOSE SERVICES GIVING RISE TO SUCH CLAIM UNDER THE APPLICABLE ORDER FORM OR SOW IN THE TWELVE (12) MONTHS PRECEDING THE APPLICABLE INCIDENT.

10.2 Exclusion of Consequential Damages

EXCEPT FOR THE EXCLUDED MATTERS, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

11. TERM AND TERMINATION

11.1 Term

This Agreement commences on the Effective Date and continues until otherwise terminated by written agreement of the parties, in accordance with Section 11.3, or upon the expiration of the last Subscription Term or renewal thereof.

11.2 Automatic Renewal

Except as otherwise specified in the applicable Order, Subscription Services will automatically renew for successive one-year periods unless and until terminated in accordance with this Agreement, or unless either party provides written notice of non-renewal at least sixty (60) days prior to the end of the then-current Subscription Term. Hi Marley may increase pricing applicable to a renewal Subscription Term by providing Customer with notice (including by email) at least seventy-five (75) days prior to the end of such term.

11.3 Termination for Cause

A party may terminate this Agreement (or, at its option, individual Order Forms or SOWs affected by the applicable breach) for cause (i) upon thirty (30) days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. Upon termination of an Order or SOW for cause by Customer and upon Customer’s written request, Hi Marley shall refund, on a pro rata basis, any fees paid that cover the remainder of the applicable Subscription Term after the termination date. Upon termination of an Order or SOW for cause by Hi Marley, all amounts owed by Customer shall become immediately due and payable. In no event shall any termination relieve Customer of the obligation to pay all fees for the period prior to the effective date of termination. Upon termination of any Order Form or this Agreement, Customer’s right to access and use the Subscription Services terminates.

11.4 Data Portability and Deletion

Upon written request by Customer within thirty (30) days of termination or expiration of the Subscription Services, Hi Marley will make Customer Data available for export or download as described in the Documentation. Within thirty (30) days after such export period, Hi Marley will delete or otherwise render inaccessible any remaining Customer Data, unless legally prohibited. Hi Marley has no obligation to retain Customer Data for Customer’s benefit after this post-termination period.

11.5 Survival

Sections 6 (Proprietary Rights), 7 (Confidentiality), 8.4 (General Disclaimer), 8.5 (AI Disclaimer), 9 (Mutual Indemnification), 10 (Limitation of Liability), 11.4 (Data Portability and Deletion), 12 (Notices, Governing Law, and Jurisdiction), and 13 (General Provisions), together with any other rights and obligations that by their nature are reasonably intended to survive, shall survive any termination or expiration of this Agreement.

12. NOTICES, GOVERNING LAW, AND JURISDICTION

12.1 Manner of Giving Notice

All legal notices of default, breach, or termination (“Legal Notices“) shall be in writing and deemed given upon (i) personal delivery, or (ii) the first business day after sending by a recognized international guaranteed overnight delivery service. Customer shall send Legal Notices to Hi Marley at 290 Congress Street, Floor 3, Boston, MA 02210, with a copy to legal@himarley.com. Hi Marley shall send Legal Notices to Customer at the address in the applicable Order Form. Billing-related notices will be addressed to the billing contact designated in the applicable Order.

12.2 Governing Law and Jurisdiction

This Agreement shall be governed and construed in accordance with the laws of the Commonwealth of Massachusetts, excluding its conflicts-of-law rules. Any civil action or legal proceeding shall be brought in the courts of record of the Commonwealth of Massachusetts in Suffolk County, or in the United States District Court for the District of Massachusetts. Each party consents to jurisdiction and waives any objection to venue in such courts. Either party may seek injunctive or other equitable relief in any court of competent jurisdiction—without bond and without the necessity of showing actual monetary damages—to address any unauthorized disclosure of Confidential Information or infringement of intellectual property rights. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply to this Agreement.

12.3 Waiver of Jury Trial

Each party hereby waives any right to trial by jury in connection with any action or litigation arising out of or related to this Agreement.

13. GENERAL PROVISIONS

13.1 Import and Export Compliance

Each party shall comply with all applicable import, re-import, export, and re-export control laws, treaties, agreements, and regulations, including the Export Administration Regulations (EAR), the International Traffic in Arms Regulations (ITAR), and country-specific economic sanctions programs administered by the Office of Foreign Assets Control (OFAC). Each party represents that it is not named on any U.S. government denied-party list. Customer shall not permit users to access or use Services in any U.S.-embargoed country or in violation of any U.S. export law or regulation.

13.2 Anti-Corruption

Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any employee or agent of the other party in connection with this Agreement. If a party learns of any violation of the foregoing, it will use reasonable efforts to promptly notify the other party.

13.3 Subscription Service Analyses

Hi Marley may (i) compile statistical and other information related to the performance, operation, and use of the Subscription Services, and (ii) use and share data from the Subscription Services environment in aggregated form for security and operations management, statistical analyses, and research and development purposes (collectively, “Subscription Service Analyses“). Subscription Service Analyses will not incorporate any information, including Customer Data, in a form that could identify Customer or any individual. Hi Marley retains all intellectual property rights in Subscription Service Analyses.

13.4 Relationship of the Parties

The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

13.5 No Third-Party Beneficiaries

There are no third-party beneficiaries to this Agreement.

13.6 Waiver

No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.

13.7 Force Majeure

Neither party shall be liable for delays or failures to perform due to causes beyond its reasonable control, including fire, natural catastrophe, government legislation, acts, orders, or regulation, or strikes or labor difficulties, to the extent not occasioned by the fault or negligence of the delayed party. Any such excuse shall last only as long as the event remains beyond the reasonable control of the delayed party. The delayed party shall use its best efforts to minimize resulting delays. If a force majeure event continues for more than sixty (60) calendar days, either party may terminate this Agreement upon written notice to the other party.

13.8 Severability

If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified and interpreted to best accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions shall remain in full force and effect.

13.9 Assignment

Neither party may assign its rights and obligations hereunder, in whole or in part, whether by operation of law or otherwise, without the prior written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms and SOWs), without consent, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors, and permitted assigns.

13.10 Modifications to These Terms

Hi Marley reserves the right to update these Terms of Service from time to time. Hi Marley will provide at least thirty (30) days’ prior written notice of any material changes, which may be provided by email to the Customer contact identified in the applicable Order Form. Customer’s continued use of the Services following the effective date of any modification constitutes acceptance of the modified Terms. If Customer does not agree to the modified terms, Customer may terminate this Agreement in accordance with Section 11.3.

13.11 Entire Agreement; Order of Precedence

This Agreement constitutes the entire agreement between the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning the same. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by both parties. To the extent of any conflict or inconsistency between the provisions of this Agreement, the Documentation, and any Order Form or SOW, the terms of such Order Form or SOW shall prevail. No terms or conditions stated in a purchase order, payment system, or other order documentation (excluding Order Forms and/or SOWs) shall be incorporated into or form any part of this Agreement, and all such terms shall be null and void.

ACCEPTANCE OF TERMS

By executing an Order Form that references these Terms of Service, Customer acknowledges that it has read, understood, and agrees to be bound by this Agreement. The individual executing the Order Form on Customer’s behalf represents that he or she has the authority to bind Customer to these terms.

Questions regarding these Terms of Service should be directed to Hi Marley at legal@himarley.com.

SCHEDULE 1

DEFINITIONS

The following defined terms apply throughout the Agreement. Terms defined in the body of the Agreement have the meanings set forth there.

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

“AI Agent” means a Hi Marley-developed software component that autonomously plans and executes multi-step tasks, accesses tools and data sources, and generates outputs in furtherance of a specified goal, as made available by Hi Marley as part of the AI-Enabled Services.

“AI-Enabled Services” means features and functions of the Services that use AI Systems, allowing End Users and Authorized Users to provide AI Input in order to generate AI Output. AI-Enabled Services may include AI Agents and may use natural language processing, machine learning, generative, or other forms of Artificial Intelligence from Authorized Contractors.

“AI Input” means any voice, text, images, video, audio, or other information, data, or materials provided to the AI-Enabled Services by an End User, Authorized User, or AI Agent acting on behalf of Customer.

“AI Output” means the response created by AI-Enabled Services based on the AI Input and the request of the Authorized User or End User.

“AI System” means a machine-based system that can, for a given set of objectives, generate outputs such as predictions, recommendations, content (including text, images, videos, or sounds), or other output influencing decisions in real or virtual environments, designed to operate with varying levels of autonomy.

“Applicable Law” means any federal, state, local, or foreign statute, law, regulation, rule, code, ordinance, order, directive, or official guidance issued by any governmental authority or regulatory body with jurisdiction over the applicable party or the subject matter of this Agreement, as may be amended, enacted, or promulgated from time to time, including without limitation applicable data protection and privacy laws, security breach notification laws, consumer protection laws, anti-discrimination laws, export control laws, and anti-corruption laws.

“Artificial Intelligence (AI)” means a branch of computer science that uses data processing systems that perform functions normally associated with human intelligence, such as reasoning, learning, and self-improvement. This definition considers machine learning to be a subset of artificial intelligence.

“Authorized Contractors” means independent contractors, licensors, or subcontractors.

“Authorized Users” means Customer employees and Customer’s Authorized Contractors who have been assigned usernames and passwords to access, use, and administer the Services for Customer.

“Contingent Feature” means an integration or connector to Third-Party Tools provided by Hi Marley and made available to Customer solely because of Hi Marley’s and Customer’s separate contractual relationships with the applicable Third-Party Provider.

“Customer Data” means all data, records, files, images, graphics, audio, video, photographs, reports, forms, and other content and material, in any format, submitted to, stored by, transmitted, or otherwise used by or for Customer within the Subscription Services. Output created by Third-Party Tools does not constitute Customer Data until processed by the Subscription Services.

“Deliverable” means work product expressly designated as a “Deliverable” in the applicable SOW that is developed specifically for Customer and is derived from or incorporates Customer Data or Customer’s Confidential Information.

“Documentation” means Hi Marley’s product descriptions in Order Forms, product guides, and other published end-user documentation for the Subscription Services, as may be updated from time to time.

“End User” means an individual who is sent a communication from, or sends a communication to, an Authorized User of Customer or its partners through the Services. End Users’ use of the Services is subject to Hi Marley’s Terms of Use at /terms-of-use, which End Users must accept as a condition of communicating through the Services.

“Functional AI Output” means AI Output produced through the mechanical transformation or processing of existing Customer Data, including translation, transcription, or classification of provided content. AI Output constituting novel drafting, recommendations, predictions, analysis, or responses to open-ended prompts is deemed Generative AI Output regardless of whether it incorporates Customer Data.

“Generative AI Output” means AI Output that is not Functional AI Output, including AI-generated text, recommendations, summaries, predictions, analyses, and responses to open-ended prompts.

“Order” or “Order Form” means an ordering document or online order specifying the Services to be provided, entered into between Hi Marley and Customer from time to time, including any addenda and supplements. Customer Affiliates may purchase Services subject to this Agreement by executing Orders.

“Outside Property” means any and all technology and information, methodologies, data, designs, ideas, concepts, know-how, techniques, user interfaces, templates, documentation, software, hardware, modules, development tools, and other tangible or intangible technical material or information that Hi Marley possesses or owns prior to the commencement of Professional Services or develops independent of any activities governed by this Agreement, and any derivatives, modifications, or enhancements thereof. Outside Property includes any AI Agents, agentic infrastructure, orchestration frameworks, system prompts, prompt templates, or domain-specific prompt libraries developed by Hi Marley while providing Professional Services to Customer, provided that such property (i) has general application to work performed for Hi Marley’s other customers and (ii) does not directly incorporate or disclose Customer’s Confidential Information or Customer Data. This definition governs and supersedes any conflicting term in any Order Form or SOW.

“Professional Services” means fee-based implementation, training, or consulting services that Hi Marley performs as described in an Order or SOW, excluding Support Services.

“Services” means the Subscription Services and Professional Services that Customer may purchase under an Order or SOW.

“Statement of Work” or “SOW” means a statement of work entered into and executed by the parties describing custom Professional Services to be provided by Hi Marley to Customer.

“Subscription Services” means the cloud-based application(s) or platform(s) made available by Hi Marley to Customer and its Authorized Users via the applicable user interface with customer logins and/or associated Support Services, as ordered under an Order.

“Subscription Term” or “Term” means the term of Subscription Services purchased by Customer, commencing on the start date specified in the applicable Order and continuing for the subscription period specified therein and any renewals.

“Support Services” means the standard support services provided by Hi Marley to Customer as described in Hi Marley’s Support Services Policy.

“Third-Party Data” means any text, images, files, communications, data, or other information made available to Customer or its end users through the Services that is not owned or generated by Hi Marley.

“Third-Party Provider” means a provider of Third-Party Tools, with which Customer has a separate contractual relationship.

“Third-Party Tools” means (i) any non-Hi Marley software, code, algorithms, processes, methods, inventions, technology, products, or services Customer uses with Subscription Services, and (ii) Third-Party Data. Third-Party Tools do not form part of the Subscription Services.

“Trial Services” means any Hi Marley product, service, or functionality made available to Customer on a trial basis at no additional charge, designated as “design partner,” “early adopter,” “beta,” “proof of concept,” “trial,” “non-GA,” “pilot,” “developer preview,” “non-production,” “evaluation,” or by a similar designation.

SCHEDULE 2

SUPPORT SERVICES

This Schedule 2 is applicable following the completion of any Trial Period. Hi Marley will provide the Services in accordance with the performance standards in this Schedule 2. All capitalized terms not defined in this Schedule 2, will have the meanings defined in the Agreement.

1. Availability and Credits

(a) Hi Marley will use reasonable efforts to provide the Services so that, other than set forth in Section 1(b) of this Schedule 2, the Services will be accessible in all material respects 99.9% of the time in any given calendar month (99.0% with respect to AI-Enabled Services) in accordance with the Monthly Uptime set forth in the table below (the “Uptime Commitment”). AI-Enabled Services depend on third-party large language model providers and are subject to a lower uptime to reflect this dependency and are targets only, not subject to the Service Credits set forth herein.

(b) Any outages caused by or attributable to the following reasons will not count against the applicable Uptime Commitment: (a) scheduled maintenance performed by Hi Marley occurring during the hours of 10pm and 5am Eastern Time where written notice has been provided to Customer at least 7 calendar days in advance; (b) internet outages, disruptions to broadband infrastructure, utility failures, or other technical failures outside of Hi Marley’s reasonable control; or (c) any failure of systems, networks, or equipment owned or controlled by Customer and its service providers other than Hi Marley (collectively, “Permitted Downtime”).

(c) As Customer’s sole remedy for Hi Marley failing to meet the Uptime Commitments in any given month (where any Permitted Downtime does not count against the total availability for the Uptime Commitment calculation), Customer may request and Hi Marley will then issue a service level credit in an amount equal to that percentage of fees attributable to one month’s use of the applicable Service (“Service Credit”) in accordance with the below table:

Customer must claim any Service Credit within 60 days of the outage giving rise to the Service Credit. For purposes of calculating any Service Credit, Hi Marley’s systems will be the systems of record for determining the length of any outage.

For illustration, an availability of 97% would entitle Customer to a Service Credit for the applicable Service calculated as: (Annual Services Fee / 12) * .15.

2. Performance Issue Corrections

If Customer encounters any issue with the performance of the Services (“Performance Issue”), Hi Marley will use commercially reasonable efforts to correct the Performance Issue with a level of effort commensurate with the severity of the Performance Issue. Hi Marley and Customer will comply with the following resolution procedures for all Performance Issues reported by Customer:

(a) Notice of Performance Issue

If Customer encounters a Performance Issue, Customer must sufficiently define the Performance Issue in a written notice to Hi Marley. After receipt of written notice of a Performance Issue from Customer, Hi Marley will notify Customer if Hi Marley cannot identify the cause of the Performance Issue. If Hi Marley cannot identify the cause of the Performance Issue, Customer will provide additional information regarding the Performance Issue as Hi Marley may request in order to assist Hi Marley with identifying the cause of the Performance Issue. Customer will provide a separate written notice for each Performance Issue encountered by Customer.

(b) Performance Issue Classification

In its notice of a Performance Issue, Customer will reasonably classify for Hi Marley the initial priority of the Performance Issue. Customer will use the nature of the Performance Issue and Customer’s business situation to initially classify each Performance Issue. Customer will classify each Performance Issue in accordance with the severity classification table below. To the extent that Hi Marley disagrees with any Performance Issue classification provided by Customer, Hi Marley will promptly advise Customer of the revised classification of any Performance Issue.

(c) Response Time

Hi Marley will use reasonable efforts to respond to each of Customer’s written notices of Performance Issue within the period set forth in severity classification table below. Response time is the elapsed time between Customer’s first notice of an identified Performance Issue made in accordance with this Section and Hi Marley’s acknowledgement of such Performance Issue. For purposes of this Section, the term “hour” means Hi Marley business hours, which are Monday to Friday 8am to 8pm Eastern Time, excluding US federal holidays.

3. Customer Obligations

(a) Trained Contacts

Customer will appoint up to two individuals within Customer’s organization to serve as primary contacts between Customer and Hi Marley with regards to the Services. Customer must initiate all requests through these contacts.

(b) Reasonable Assistance

Customer will provide Hi Marley with reasonable access to all necessary personnel to answer questions and to troubleshoot any integration issues regarding Performance Issues reported by Customer.