Agreement ContextSDK Insights

concluded between

ContextSDK GmbH
FN 606868 d
Gentzgasse 6/5
A - 1180 Vienna

hereinafter referred to as "ContextSDK GmbH" or "Licensor"

and

Customer according to order process

Hereinafter referred to as "Customer" or "Licensee"

1. Order

The Customer hereby orders ContextSDK Insights on the terms and conditions set out below:

2. Terms of Agreement

• Product: ContextSDK Insights
• Scope of license - The following provisions of the Framework Agreement (Annex 1) shall not apply: provisions on the custom model pursuant to clause 5. i. 2 and 3. sentence, provisions on fees and payment pursuant to clause 6.
• License fee: 0 EUR/year
• Term: 12 months after order

3. Other provisions

Unless otherwise agreed in clause 2, the provisions of the Framework Agreement, Annex 1, shall apply.

ContextSDK GmbH

Customer

Annex 1

Framework Agreement

concluded between

ContextSDK Ltd.
FN 606868 d
Gentzgasse 6/5
A - 1180 Vienna

hereinafter referred to as "ContextSDK GmbH" or "Licensor".

and

Customer according to order process

hereinafter referred to as "Customer" or "Licensee”

hereinafter each individually referred to as a "Party", together referred to as the "Parties" to this Framework Agreement.

1. General

ContextSDK GmbH has developed the powerful tool "ContextSDK", a software development kit that provides hyper-personalized app experiences based on real-time user context. By intelligently evaluating signals and interpreting them in conjunction with an app-specific custom model (“Custom Model”), apps can interact with their users in a more meaningful and intuitive way.

ContextSDK enables apps to dynamically adapt their interaction strategies, improve user satisfaction and optimize their monetization.

ContextSDK GmbH offers Customers solutions tailored to their needs, which include defined licenses for the use of the SDK depending on the scope. The scope can be adjusted by mutual agreement at any time by means of an individual contract. The following contractual provisions shall apply mutatis mutandis to the agreed scope of the license.

2. Definitions

Unless otherwise defined hereinafter, the terms shall have the following meanings:

1. "Agreement" means the Individual Contracts concluded between the Parties, together with all related annexes and appendices, and this Framework Agreement.
2. "ContextSDK" means the ContextSDK software development kit for iOS.
3. "Documentation" means any documentation and other supporting materials relating to the ContextSDK provided by Licensor to Licensee. The Documentation shall be deemed to be part of the ContextSDK.
4. "Individual Contract" is the order based on the offer in the individual case, which regulates the respective agreed services, the respective agreed scope of the license, the number of users, the economic parameters, special provisions and the term of the respective order. The Individual Contract is concluded by accepting the respective offer of ContextSDK GmbH.
5. "Term" means the term set forth in the applicable Individual Contract.
6. "Update" means a ContextSDK Release that the Licensor makes generally available to the Licensee, together with the corresponding changes to the Documentation. An Update may be an error correction or bug fix, generally indicated by a change in the digit to the right of the second decimal point (e.g.., a change from version x.x.x to x.x.y); or it may be an enhancement, new feature, or new functionality, generally indicated by a change in the digit to the right of the first decimal point (e.g., x.x.x to x.y.x) or to the left of the first decimal point (e.g., x.x.x to y.x.x) (collectively, "Updates").
7. "User Data" means all data collected under the Agreement by ContextSDK from users of Customer's Software Applications into which ContextSDK is integrated.
8. "Users" means the number of users of the Customer's software applications into which ContextSDK is integrated. The number of Users shall be specified in the respective Individual Contract.

3. Licensing and Operation of the Custom Model

1. Based on the Agreement and subject to payment of the applicable fees, Licensor grants Licensee non-exclusive and non-transferable rights:
2. ContextSDK. Licensee may incorporate the ContextSDK into its software development environment to the extent contractually agreed in each case and link the ContextSDK to its software applications to be developed, compiled and deployed/sold by Licensee ("Application") and distribute the ContextSDK in binary form as part of an Application to be distributed directly and indirectly to end users, subject to the following conditions:
   1. ContextSDK may only be distributed as an integral part of compiled software Applications developed by or for Licensee. Therefore, the ContextSDK must be linked to Licensee's software Applications, the software Application must be compiled into binary object code, and the ContextSDK must be embedded as an inseparable part of the binary program code. The ContextSDK may only be distributed as part of a single compiled binary Application developed and distributed by or for Licensee.
   2. ContextSDK may only be provided as part of an Application and integrated into an Application. Redistribution of the ContextSDK is expressly prohibited.
   3. Our ContextSDK may be used by Licensee to develop and compile an Application only if, at the time ContextSDK is incorporated into Licensee's software development environment, redistributed, compiled and/or distributed as an executable Application, Licensee has a valid, fully paid license under a current Agreement that has not expired or been terminated.
   4. This license entitles Licensee to distribute its Application under a unique Bundle ID, a unique App ID, a unique package name, and a unique package name.
      If Licensee distributes Applications using the ContextSDK in multiple (enterprise) app stores or otherwise and/or applies different branding, one license per distribution channel and/or branded Application is required.
   5. Except for the rights expressly granted to Licensee under the Agreement, Licensor retains all right, title and interest in and to the ContextSDK, including all worldwide technology and intellectual property and proprietary rights therein. The Customer owns all rights, title and interest in its Applications, except for the ContextSDK incorporated therein and the use of the ContextSDK granted to it under the Agreement in force, as well as the rights granted to the Licensor under the Agreement to the User Data collected by ContextSDK (see clause 10. below).

4. License Restrictions and Limitations

1. ContextSDK. The ContextSDK is licensed, not sold, to the extent defined in the Individual Contract. Licensee may use the ContextSDK only as expressly permitted in the Agreement, and Licensor reserves all other rights. The Licensee is not entitled to:
   1. pass on or disclose the source code, headers or descriptions of the interfaces;
   2. transfer the ContextSDK or this Agreement or any rights or obligations hereunder to any third party;
   3. reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code of any part of the ContextSDK;
   4. change copyright, trademark or possibly patent notices in the ContextSDK;
   5. use any of the ContextSDK GmbH trademarks, including but not limited to "ContextSDK" or the names of the contributors and the ContextSDK logo in the names of the Customer Applications;
   6. distribute malicious, fraudulent, obscene or illegal applications;
   7. remove, delete or obscure any copyright notices or other proprietary notices from the ContextSDK or any materials provided under the Agreement;
   8. use the ContextSDK or an Application in a hazardous situation or develop an Application for use in a hazardous situation; or
   9. modify or distribute any portion of the ContextSDK or distribute an Application in a manner that would subject any portion of the ContextSDK to an Excluded License. An "Excluded License" is a license that requires, as a condition of using, modifying, or distributing code subject to that license, that (i) the code be disclosed or distributed in source code form; or (ii) others have the right to modify the code.  

5. Delivery and Updates

1. Upon conclusion of an Individual Contract that includes this, the Licensor shall deliver to the Licensee a copy of the master model of the ContextSDK (“Master Model”) to the contractually agreed extent or makes it available to the Licensee. This is followed by the so-called "Calibration Phase" in which the Master Model of the ContextSDK is "trained" to the Custom Model to the contractually agreed extent by applying the User Data. Access to the updates is granted for the duration of the respective Individual Contract in order to ensure the ongoing improvement of the Custom Model of the ContextSDK.
2. Notwithstanding the right to terminate this Agreement, Licensor shall have the right to terminate Licensee's access to the Updates if Licensee, despite having been given a written grace period of 21 days, is in default in the payment of License Fees or is in breach of any other material contractual obligation and fails to remedy such breach within the grace period.
3. During the Term, Licensor grants Licensee access to up to five (5) beta keys for staging, development and testing purposes for each ContextSDK platform licensed under the Agreement. Licensee may request access to additional beta keys, which may be provided at Licensor's sole discretion.

6. Fees and Payment

1. For the rights agreed in the Individual Contract, an annual fee defined in the Individual Contract ("License Fee") shall be invoiced, which shall cover the scope of the license defined in the Individual Contract and the number of Active Users licensed to use the Customer Application that includes the ContextSDK, as further defined in the Individual Contract, for as long as the respective Individual Contract together with this Framework Agreement is in force.
2. The License Fee is due on an annual basis. Unless otherwise agreed in the Individual Contract, the License Fee is due on the date of conclusion of the Individual Contract and on each subsequent annual anniversary date of the conclusion of the respective Individual Contract during the term.
3. The Licensee is obliged to notify the Licensor immediately if the number of users licensed for the use of the Customer Application containing the ContextSDK is exceeded. In this case ContextSDK GmbH has the right to additionally charge the additional users according to the respective system agreed in the Individual Contract.
4. Licensee shall annually provide reasonable evidence of the number/scope of users of the Customer Application(s) for which the ContextSDK is used. All information provided by Licensee must be accurate and valid. For willful reporting of inaccurate or invalid user counts, Licensee hereby agrees to pay ContextSDK the missing portion of the License Fee for the underreported period plus a penalty equal to five times the missing portion of the License Fee.
5. Unless otherwise agreed in the Individual Contract, all fees shall be paid to the notified bank account within 21 days of receipt of a proper invoice.
6. Licensee shall pay the full amount owed and any applicable bank charges and shall inform ContextSDK GmbH of any additional documents required for payment of the full amount. ContextSDK is not responsible for any tax withholdings. The respective agreed fees will increase by 5% per year, unless the Individual Contract contains a different regulation. In case of late payment, an interest rate of 1.5 % with monthly compound interest on the outstanding invoice amount will be due.

7. Duration and Termination

1. The term of the Agreement shall be governed by the respective Individual Contract. This Framework Agreement shall remain in force for the duration of the Individual Contracts concluded on this basis.

2. Either Party shall be entitled to terminate the existing Agreement in whole or in part immediately by written notice to the other Party extraordinarily with immediate effect if the other Party materially breaches the provisions of the Agreement (e.g. default in payment) and fails to cure the breach within 30 days after written notice of the breach by the other Party.

3. Upon termination or expiration of the Agreement, the following shall be deemed agreed:

   1. Licensee shall completely remove ContextSDK from its software development environment and remove/delete all related files;
   2. Licensee may not grant any additional sublicenses to its End User Customers or distribute any Software Applications with which the ContextSDK is associated or into which it is integrated. Termination or expiration of an Agreement with Customer shall not affect any licenses already lawfully granted to End User Customers under this Agreement for software Applications with which the ContextSDK is associated or into which it is integrated;
   3. Each Party shall promptly return to the other Party (or, at the request of the other Party and in compliance with legal retention requirements, destroy) all Confidential Information (as defined below); and
   4. Upon termination of this Agreement in whole or in part, Licensee shall promptly pay to ContextSDK GmbH all unpaid fees and expenses incurred on or before the date of termination, including all applicable late fees and penalties.
   5. The terms of the Agreement that require performance (or that relate to events that may occur after termination or expiration) shall survive termination or expiration, including all warranty disclaimers and all limitations and exclusions of remedies and damages.

8. Warranty and Limitation of Liability

1. ContextSDK GmbH warrants that the ContextSDK will perform substantially in accordance with with the agreed scope and the accompanying Documentation for the warranty period of 30 days after delivery when operated in the execution environment specified in such Documentation.
2. This Limited Warranty is void if the failure of the ContextSDK to conform to the warranty is caused, in whole or in part, by (a) any defect in the hardware or other equipment used with the ContextSDK; (b) any failure of the hardware or other equipment used with the ContextSDK to operate in accordance with the applicable manufacturer's specifications for such items; (c) any alteration, modification or enhancement of the ContextSDK by Licensee or anyone other than Licensor; (d) any failure by Licensee or anyone other than Licensor to comply with instructions regarding the proper use of the ContextSDK; or (e) improper use, misuse, accident, negligence or recklessness on the part of Licensee or anyone other than Licensor. Any replacement ContextSDK shall be warranted by Licensee for 30 days from the date the replacement ContextSDK is provided.
3. UNLESS OTHERWISE SPECIFIED IN AN AGREEMENT, THE CONTEXTSDK IS PROVIDED "AS IS" AND CONTEXTSDK GMBH MAKES NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO ITS FUNCTIONALITY, CONDITION, PERFORMANCE, MERCHANTABILITY OR USE.
4. Nothing contained herein shall be construed or implied by Licensor as a warranty that any results produced with the ContextSDK will meet any safety, performance, or other standards, whether imposed by any governmental authority or otherwise. Licensor makes no representations, grants no warranties of any kind, express or implied, and assumes no responsibility with respect to the production, use, sale or other use of any results or methods produced with the ContextSDK.
5. The Licensor is not aware of any third party rights that conflict with the intended uses of the software. However, the Licensor shall not be liable for the licensed ContextSDK and the licensed know-how being free from third party rights. Should the Licensee be accused by third parties of infringing intellectual property rights by using the ContextSDK, the Licensor undertakes to support the Licensee with information and commercially reasonable assistance in defending against such claims, to the extent that it is able to do so without violating third party obligations and while safeguarding its own confidentiality interests. All costs associated with these measures shall be borne by the Licensee.
6. LICENSEE'S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE FOREGOING LIMITED COVENANT SHALL BE EITHER (A) REPAIR OR REPLACEMENT OF THE CONTEXTSDK SO THAT IT CONFORMS TO THE FOREGOING LIMITED COVENANT, OR (B) REFUND OF THE FEE PAID BY LICENSEE FOR LICENSING THE CONTEXTSDK. IN NO EVENT SHALL LICENSOR BE LIABLE FOR ANY DAMAGES OF ANY KIND, WHETHER DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR SPECIAL, INCLUDING, BUT NOT LIMITED TO, LOST REVENUES, LOST PROFITS, LOSSES RESULTING FROM BUSINESS INTERRUPTION, OR LOST DATA, REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY UNDER WHICH SUCH LIABILITY MAY BE ASSERTED, EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. LICENSOR ASSUMES NO LIABILITY WITH RESPECT TO DATA READ, ACCESSED, STORED OR PROCESSED WITH THE CONTEXTSDK OR FOR THE COST OF RECOVERING SUCH DATA. IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY UNDER THE AGREEMENT EXCEED THE TOTAL FEES PAID OR PAYABLE BY CUSTOMER FOR THE LICENSING OF THE CONTEXTSDK.

9. Confidentiality

1. Either Party may have access to non-public information provided by the other Party ("Confidential Information"). Confidential Information includes, but is not limited to, the other Party's technical, financial and/or business information and plans, and any information designated as confidential at the time of disclosure or that a reasonable person would consider confidential based on the circumstances of disclosure. The terms and conditions set forth in this Agreement, including pricing, shall be Confidential Information, provided, however, that either Party may disclose the contents of the Agreement to auditors or other agents of such Party, in connection with a financing transaction, merger, acquisition of stock or assets or the like, or in connection with regulatory compliance, if required or recommended.

2. A Party's Confidential Information does not include information that: (i) is or becomes publicly known without act or omission of the other Party; (ii) was in the lawful possession of the other Party prior to disclosure; (iii) was lawfully disclosed to the other Party by a third Party without restriction on disclosure; or (iv) was independently developed by the other Party. In addition, a Party may disclose Confidential Information if required to do so by a court or other governmental body, or if disclosure is otherwise required by law or regulation.

3. The Parties agree to keep each other's Confidential Information confidential during the term of the Agreement and for a period of three (3) years after termination of the Agreement.

4. Each Party agrees:

   1. keep the other Party's confidential information strictly confidential in accordance with the Agreement;
   2. exercise at least the same care in protecting the other Party's Confidential Information from disclosure as the Party exercises with respect to its own Confidential Information, but in no event less than reasonable care;
   3. limit the disclosure of confidential information within its organization to employees/staff/contractors who have a need to know such information for purposes of the Agreement ("need-to-know" basis) and ensure that such employees/staff/contractors are informed of the proprietary and confidential nature of such information and that they agree to and comply with the confidentiality requirements under this Agreement;
   4. not disclose such Confidential Information to any third party without the prior written consent of the disclosing Party (except as provided above); and
   5. not use Confidential Information for any purpose other than the purposes of this Agreement without the prior written consent of the disclosing Party.

10. Data

1. Only Licensee may have access to personal User Data. All rights, title and interest in and to all proprietary and intellectual property rights in and to all personal User Data shall remain the exclusive property and data protection responsibility of Licensee. Licensee shall indemnify and hold Licensor harmless in this regard.

2. Licensee represents and warrants that it will not provide or otherwise transmit any personal User Data to Licensor at any time. Both Parties jointly ensure that the Licensor does not have access to any personal User Data.

3. The Licensor only receives non-personal User Data, i.e. information that does not relate to an identified or identifiable natural person, such as: Territory and time zone of the user, battery level and thermal state of the terminal device, orientation of the terminal device, whether at the particular moment a screen recording or sharing via Airplay is taking place is taking place, session duration, whether there is an Internet connection and whether this is via WiFi or the mobile data network, number of app launches, accelerometer/gyro data, etc.

4. The Customer declares his explicit consent that ContextSDK GmbH uses the provided non-personal User Data for the creation of reports or for other work and further projects and grants ContextSDK GmbH a non-exclusive, free of charge, within the group of companies of ContextSDK transferable, unlimited in time and space for the unlimited use of this non-personal User Data, in particular but not exclusively for purposes of data analysis, training of machine learning models and aggregation of data and possible exchange or sale of reports and aggregated statistically evaluated results.

11. Relevant Communication

All notices concerning the Agreement shall be sent in writing to the last known address, unless another form is required by law. Notification by e-mail shall be deemed to have been made in writing. Each Party is obliged to notify the other Party of any change in its contact address or data. Otherwise, notices sent to the last known address shall be deemed to have been delivered.

12. Applicable Law

i. Both Parties agree to the application of Austrian law, excluding its conflict of law rules, to govern, interpret and enforce all rights, duties and obligations of the Parties arising out of or in any way connected with the Agreement. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Both Parties agree that this Agreement shall be executed and accepted in Vienna, Austria. ii. For all disputes arising out of or in connection with this Agreement, the exclusive place of jurisdiction shall be the competent court in Vienna, Austria. Both Parties hereby submit to the personal jurisdiction of this court.

13. Other

1. The Agreement referred to in Section 2.1. constitutes the complete and exclusive agreement between the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous agreements or understandings, whether written or oral, with respect to the subject matter hereof. Failure to enforce any provision of this Agreement shall not constitute a waiver of future enforcement of that or any other provision.

2. Any waiver, amendment or supplement to the Agreement must be in writing and signed by authorized representatives of each Party. This shall also apply to any deviation from this written form requirement. No ancillary agreements to this Agreement have been made.

3. Each Party acknowledges and agrees that a breach of its obligations with respect to Confidential Information and Intellectual Property Rights may cause substantial harm to the other Party that cannot be cured by the payment of damages alone. Accordingly, the other Party shall be entitled to seek preliminary and permanent injunctive relief in any jurisdiction in which harm may occur without the requirement of a security deposit in addition to any other remedies available for such infringement.

4. ContextSDK GmbH may list and publish the name and/or the company of the Customer as well as the Applications containing the ContextSDK on the website and in related material.

5. This Agreement is personal to Licensee and may not be assigned or transferred (including, without limitation, by operation of law, merger, reorganization or as a result of an acquisition or change of control involving Licensee) without the prior written consent of Licensor, and any act or conduct in violation of the foregoing shall render this Agreement void and of no effect. Licensor expressly reserves the right to assign this Agreement and to delegate any of its obligations hereunder.

6. Should any provision of the Agreement be or become invalid or should the Agreement contain a loophole, this shall not affect the legal validity of the remaining provisions. In place of an invalid provision, a valid provision shall be deemed to have been agreed which comes as close as possible to the economic intention of the Parties. The same shall apply in the event of a loophole.

ContextSDK GmbH

Customer