Subscription Agreement ("Agreement")

These Subscription Terms (the “Agreement”) govern the provision of the Services by iLobby Corp. d/b/a FacilityOS (“FacilityOS”) to the customer identified in one or more quotations, purchase forms, order forms, statements of work, or similar ordering documents that references this Agreement (each, a “Purchase Form”).

This Agreement becomes effective as of the execution date of the applicable Purchase Form (the “Effective Date”) and is entered into by and between FacilityOS, and the customer identified in the Purchase Form (“Subscriber”). By executing the Purchase Form that references this Agreement, the Subscriber agrees to be bound by the terms and conditions of this Agreement as of the Effective Date.

For the purposes of this Agreement, “Affiliate(s)” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party. FacilityOS may perform the Services directly or through one or more of its Affiliates, provided that FacilityOS remains responsible for performance of the Services in accordance with this Agreement.

1. SCOPE OF AGREEMENT

1.1. Scope of Agreement. This Agreement sets forth the terms and conditions governing Subscriber’s access to and use of FacilityOS software products, platforms, and related service(s) provided on a subscription basis (collectively, “Services” or “Subscription Services”) by Subscriber and its Affiliates, solely for Subscriber’s and its Affiliates’ internal business purposes, subject to the terms of this Agreement and the applicable Purchase Form.

1.2. Purchase Form. Each Purchase Form shall set out the following (as applicable): (i) description of the Services to be performed by FacilityOS under such Purchase Form; (ii) Fees (as defined below); and (iii) term of each such fixed subscription period (“Subscription Period”). Unless otherwise expressly stated in a Purchase Form, Subscriber’s Affiliates are permitted to access and use the Services under Subscriber’s subscriptions, and Subscriber shall remain responsible for all acts and omissions of its Affiliates.

1.3. Conflicts. Each Purchase Form is automatically deemed to include all the terms and conditions of this Agreement; provided that whenever the provisions of a Purchase Form expressly conflict with these terms and conditions, the conflicting provisions of the Purchase Form control and take precedence over the conflicting provisions of these terms and conditions, but only for purposes of the Purchase Form.

2. SERVICES

2.1. Subscription Services. Subscriber’s purchase of applicable Services, the term of each such subscription period (“Subscription Period”) and corresponding details shall be set out in the Purchase Form issued by FacilityOS. Subscription Services shall include the technical infrastructure managed by FacilityOS to support Subscription Services. Such technical infrastructure does not encompass any broader usage beyond supporting the Subscription Services. Further, Subscriber may permit its Affiliates to subscribe to the Services provided by FacilityOS, provided that Subscriber remains responsible for all obligations under this Agreement, and fees attributable to an Affiliate’s use may be invoiced to such Affiliate pursuant to the applicable Purchase Form.

2.2. Responsibilities and Acknowledgements. FacilityOS shall in all material respects perform the Services in accordance with this Agreement and the applicable Purchase Form, and in a timely, diligent, and professional manner. The Subscriber shall, to the extent applicable:

(a) set up, maintain, and operate in good repair and in accordance with the agreed specifications, all Subscriber’s information technology infrastructure and hardware, on or through which the Services are accessed or used (“Subscriber Systems”);

(b) provide FacilityOS personnel with such access to the Subscriber’s premises and the Subscriber Systems as is necessary for FacilityOS to perform the Services;

(c) provide all cooperation and assistance as FacilityOS may reasonably request to enable FacilityOS to exercise its rights and perform its obligations under and in connection with this Agreement; and

(d) be liable for the acts and omissions of any of its directors, officers, employees, contractors, representatives, and/or agents as if such act or omission were an act or omission of the Subscriber.

2.3. Service Levels and Support. During the Subscription Period, FacilityOS shall ensure the Services are available to Subscriber and those of its employees, contractors, and visitors (collectively, the “End Users”) and provide technical support in accordance with this Agreement. FacilityOS strives to deliver 99.9% uptime; however, such targets do not constitute service level commitments, warranties, or guarantees. Details of the FacilityOS Support Program are provided in Appendix B. FacilityOS may update its support procedures from time to time in the ordinary course of business, provided that such updates do not materially reduce the service levels or remedies set forth in Appendix B. All system maintenance is performed at low peak times with minimal impact on availability.

2.4. Professional Services. If applicable and upon payment of additional fees, FacilityOS may provide professional services related to the implementation, integration, and configuration of the Services (the “Professional Services”). Details of any Professional Services shall be set out on a Purchase Form. Professional Services shall be performed in a professional manner using qualified and experienced personnel. The Professional Services may include, without limitation, customization, integrations, ad hoc development of new features and functionality, as requested by the Subscriber and if mutually agreed, then as specified in a Purchase Form.

2.5. Hardware. FacilityOS may provide equipment and other hardware as part of the Services (“Hardware”) to Subscriber. Details of any Hardware, including any applicable fees, shall be set out on a Purchase Form. Delivery and risk of loss shall pass to Subscriber FOB shipping point, however, FacilityOS will assist with carrier claims for lost or damaged shipments. Where the Subscriber has subscribed to LogisticsOS Services (supplied by an Affiliate of FacilityOS) and in the exceptional instance that a Subscriber maintains its own hardware, Subscriber shall comply with the following:

(a) maintain Subscriber Systems and associated peripheral equipment, in good working order in accordance with the manufacturers’ specifications, and ensure that, to the best of Subscriber’s knowledge, any problems reported to FacilityOS are not due to hardware or software malfunction outside of the scope of the Support Program. Subscriber shall also assume responsibility for additional hardware, applications, software patches, Subscriber files, and security policies that adversely affect the Services;

(b) maintain Subscriber Systems at the latest code revision level deemed necessary by FacilityOS for proper operation of the Services; and

(c) make applicable Subscriber Systems available to one-way remote access by FacilityOS via high-speed internet connection. If a remote connection is unavailable, Subscriber will make available the appropriate on-site IT personnel capable of updating local system files, installing new files, obtaining logs, and performing testing as deemed necessary by FacilityOS to provide the Support Program.

2.6. Artificial Intelligence. The Services may include or be offered with certain artificial intelligence or machine-learning enabled functionality (“AI Features”). Subscriber’s use of any AI Features is subject to Appendix C hereto, which is incorporated into and forms part of this Agreement. In the event of any conflict between Appendix C and this Agreement, Appendix C shall control solely with respect to AI-related matters.

3. LICENSE AND LICENSE RESTRICTIONS

3.1. License from FacilityOS:

(a) General License. Subscriber may access and use the Services on a non-exclusive, non-transferable, limited, non-sublicensable basis during the applicable Subscription Period, and subject at all times to the terms and conditions of this Agreement.

(b) On-premises Software License for LogisticsOS. Where the Services are hosted on Subscriber’s premises, FacilityOS grants Subscriber a limited, personal, non-sublicensable, non-transferable (except as otherwise provided in this Agreement), non-exclusive, royalty-free license, solely during the Term, to install and execute Ancillary Software on machines operated by or for Subscriber, solely to facilitate Subscriber’s authorized access to and use of the Services. If an Order specifies that the Ancillary Software needs to be installed as a client or locally, Subscriber’s use of the Services is authorized only for the number of installations of the Subscription Service for which Fees are fully paid by the Subscriber. The number of installations may be increased by Subscriber from time-to-time for additional Fees. For the purposes of this section, “Ancillary Software” is defined as software licensed by FacilityOS to Subscriber that is deployed on-premises and/or on machines operated by or for Subscriber to facilitate operation or interoperation of the Services with other software, hardware, or services. Upon expiration or termination of the applicable Subscription Service, Subscriber shall cease use of the Ancillary Software and uninstall or destroy all copies thereof.

3.2. License from Subscriber. Subscriber grants FacilityOS and its Affiliates a non-exclusive, worldwide, royalty-free license during the Term (as defined below) to host, store, process, transmit, display, and otherwise use Subscriber Data (as defined below) solely as necessary to provide, maintain, support, secure, and improve the Services, to comply with applicable law, and as otherwise permitted by this Agreement. Subscriber grants FacilityOS a limited, non-exclusive, worldwide, royalty-free license during the term of this Agreement to access, use, process, transmit, and store Subscriber IP (as defined below) and Subscriber Data solely as necessary to provide, maintain, support, and improve the Services and Professional Services in accordance with this Agreement and applicable law.

3.3. Unauthorized Access or Use. Subscriber is responsible for protecting the security and integrity of the access to the Services and any Hardware. Subscriber is responsible for all actions taken by End Users. Subscriber shall not gain or attempt to gain or permit any third party (including any End User) to gain, unauthorized access to the Services. Each of FacilityOS and Subscriber shall notify the other Party promptly of any suspected or known unauthorized access or use of the Services, will use commercially reasonable efforts to prevent such unauthorized access or use, and will use commercially reasonable efforts to stop said unauthorized access or use. Subscriber may not, and shall not permit its End Users to: (a) access or use the Services to provide services for or on behalf of any third party, or to commercially exploit the Services in any way, including without limitation by operating as a service bureau, by time-sharing, or by framing or mirroring any part of the Services; (b) access or use the Services to build a competitive product or service or otherwise modify the Services or make derivative works based on the Services, including without limitation to build a product using any similar ideas, features, functions or graphics of the Services, or to copy or modify any or all of the Services; (c) use any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Services, or to otherwise engage in denial of service attacks; (d) impose an unreasonable or disproportionately large load on the Services or infrastructure used to operate and to make the Services available; (e) unless otherwise agreed, access or use the Services for purposes of monitoring the availability, performance or functionality of the Services, or for any other benchmarking, comparison or competitive purpose; (f) modify, reverse engineer, adapt, translate, decompile or otherwise derive the source code for the Services; (g) use any software in connection with the Services that may require the Services or portion of the Services, or other intellectual property of FacilityOS or its third party suppliers or licensors, to be disclosed or distributed in source code form, made available free of charge to recipients, or modifiable without restriction by recipients; (h) remove, modify or obscure any proprietary notices, labels or marks in or on any or all of the Services; (i) sell, assign, sublicense, rent, lease, loan, provide, copy, reproduce, distribute or otherwise transfer all or any portion of the Services; or (j) access or use the Services in a manner inconsistent with this Agreement, or in a manner that is contrary to applicable law, rule or regulation, including, without limitation, privacy laws.

3.4. Updates and Modifications to the Services. Subscriber acknowledges and agrees that, from time-to-time, FacilityOS may apply updates to, or otherwise revise the Services and that such updates and/or revisions may result in modifications to the functionality, features, content, and appearance of the Services. The Services, as made available to Subscriber during the applicable Subscription Period, are fully functional and supported; however, from time-to-time FacilityOS may introduce new features, modules, or functionality, which may be offered in the sole discretion of FacilityOS, under separate terms and/or for additional fees.

3.5. Subscriber Data. All information and data uploaded or transmitted by Subscriber and its End Users into the Services (collectively, “Subscriber Data”) is owned by Subscriber. Subscriber will not, and shall take reasonable measures to ensure its End Users and any other third party do not, upload or transmit via any Subscriber Data to the Services that (a) contains any viruses, trojan horses, worms, time bombs, cancelbots, or other malicious computer programming; (b) violates Section 3.2; or (c) includes any information that pertains to a specific person (“Personal Data”) without the necessary consents to transfer such information to FacilityOS. Subscriber agrees that (i) FacilityOS does not review, edit, substantiate, determine or otherwise have any responsibility for the accuracy, quality, integrity, legality, reliability, or appropriateness of any Subscriber Data; and (ii) FacilityOS may take remedial action(s) in the event that any Subscriber Data violates the terms and conditions of this Agreement, in addition to any other remedies FacilityOS may have. Subscriber has sole responsibility for, and FacilityOS disclaims all liability for, the Subscriber Data (including, without limitation, any Personal Data) transmitted by Subscriber or its End Users to the Services. Subscriber further agrees and confirms that FacilityOS may use aggregated and/or anonymous data derived from the information stored within the Services for internal purposes, including, without limitation, the development and enhancement of Services, provided that such information does not include any Personal Data and cannot be traced back to a specific Subscriber or end user. Subscriber is responsible for downloading its Subscriber Data; all Subscriber Data will be deleted upon expiry of a Subscription Period or termination of this Agreement.

3.6. Open-Source Software. Subscriber agrees that the Services may include or operate in conjunction with certain open-source components that are subject to open-source licenses (“Open-Source Software”). Each item of Open-Source Software is licensed under the terms of the license that accompanies such Open-Source Software. Any Open-Source Software incorporated into the Services shall be licensed under a commercially permissive licensing regime.

4. DATA PRIVACY AND SECURITY

4.1. DPA. The Parties will comply with their respective privacy and data protection obligations, as further described in the Data Processing Agreement pursuant to Appendix A below, including, as applicable, any attachments or appendices thereto (collectively, the “DPA”). In the event of any conflict or inconsistency between the provisions of this DPA and those of the Agreement, the terms of the DPA shall prevail solely to the extent necessary to resolve such conflict or inconsistency, and only with respect to the subject matter of data protection.

4.2. Personal Data. If Subscriber requires its End Users or any third-parties to enter Personal Data into the Services, Subscriber agrees and confirms that it has obtained the necessary consents and permissions for the transmission, processing, access, and storage of such Personal Data to FacilityOS. FacilityOS shall process Personal Data only in accordance with the DPA, and applicable law, and shall implement reasonable administrative, technical, and physical safeguards designed to protect Personal Data against unauthorized access, disclosure, alteration, or destruction. Subscriber acknowledges and agrees that FacilityOS does not control the content of Personal Data submitted to the Services and shall not be responsible for Personal Data submitted in violation of applicable laws or this Agreement.

4.3. Information Security Obligations. FacilityOS will implement and maintain administrative, physical, and technical safeguards designed to: (a) protect the security, confidentiality, and integrity of Subscriber Data; and (b) protect against unauthorized or unlawful access to, or use, alteration, disclosure, or destruction of Subscriber Data. Such safeguards will include access controls, encryption of Subscriber Data in transit and at rest, vulnerability management, logging and monitoring, and employee training, all consistent with generally recognized industry standards and the FaciltiyOS’ SOC 2 Type II certification (collectively the “Information Security Program”).

4.4. Control and Responsibility. FacilityOS remains responsible for the operation, availability, and security of the Services as expressly set forth in this Agreement. Subscriber is responsible for: (a) all Subscriber Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Subscriber or any End User in connection with the Services; (c) Subscriber Systems; and (d) maintaining the confidentiality of Subscriber’s and its End Users’ access credentials and ensuring that such credentials are used only by the applicable End User.

4.5. Disaster Recovery/Business Continuity. Throughout the Term and at all times in connection with its actual or required performance of the Services hereunder, FacilityOS shall: (a) maintain a Business Continuity and Disaster Recovery Plan for the Services (the “Plan”) and implement such Plan in the event of any unplanned interruption of the Services.

4.6. Data Security and Data Privacy. During the term of this Agreement, FacilityOS shall maintain commercially reasonable technical and organizational security procedures to preserve the security, integrity, privacy and confidentiality of the Services and any Subscriber Data stored therein. If Subscriber uses its own equipment or hardware for storage, transmission or processing of Subscriber Data, then Subscriber bears all responsibility for the security and integrity of its equipment and hardware and FacilityOS’ obligations and liability set out in this Agreement shall not extend to Subscriber Systems. Subscriber is responsible for the accuracy, quality and legality of all Personal Data in the Subscriber Data, including the obligation to obtain any necessary permissions and consents applicable to the collection, use, processing and storage of such data. Subscriber confirms that the Services are designed to collect and process applicable Personal Data of Subscriber’s visitors or third parties, including, without limitation, their names, contact information, and photos, and that Subscriber is solely responsible for creating and implementing an appropriate and compliant privacy policy or providing notices regarding the collection of such Personal Data. FacilityOS shall have a discretionary right to pause the enjoyment of Services by Subscriber in the event Subscriber contravenes either Section 3.2 (Unauthorized Access or Use), Section 3.5 (Subscriber Data), or this Section 4.6.

5. FEES AND PAYMENT TERMS

5.1. Invoices and Fees. FacilityOS shall invoice the Subscriber for the Services to be provided under the Purchase Form and Subscriber hereby agrees to pay the subscription and other fees (collectively, the “Fees”) as set out on the Purchase Form. All Purchase Forms are subject to the terms and conditions of this Agreement, and any inconsistent terms shall be null and void. Taxes shall be identified and shown as separate items on each invoice.

5.2. Payment Terms. All invoices are due in full thirty (30) days from the date of invoice without deduction or set off, unless otherwise agreed by the Parties in the Purchase Form. All Fees are denominated in United States Dollars, unless otherwise indicated. All Fees are subject to applicable sales and use taxes, which shall be the responsibility of Subscriber. Any amounts not received by FacilityOS by the due date shall be subject to interest at the rate of two percent (2%) per month, calculated and compounded monthly. The Parties agree that, after the first anniversary of the Subscription Period, FacilityOS may increase its Fees, as will be included in the applicable Purchase Form, provided that such increases occur no more frequently than once per Subscription Period. Any such fee increase shall be applied uniformly to similarly situated customers purchasing substantially similar services.

5.3. Suspension of Services. If Subscriber’s account is fifteen (15) business days or more overdue for any Fees, FacilityOS may, upon at least five (5) business days’ prior written notice to Subscriber, suspend the Services until such amounts are paid in full, in addition to exercising any other rights or remedies available to FacilityOS. Such failure by Subscriber to pay shall be deemed a material breach of this Agreement.

5.4. Taxes. Unless as otherwise agreed by the Parties, Subscriber is responsible for all sales, use, consumption, value added, goods and services and similar taxes which are based upon its acquisition or use of the Services to be provided under this Agreement and any Purchase Form.

6. CONFIDENTIALITY, SECURITY AND PRIVACY

6.1. Confidential Information. “Confidential Information” shall mean all information provided by one Party to the other pursuant to this Agreement, whether before or after the execution of this Agreement, which includes, without limitation, information about such Party’s business, patents, copyrights, trademarks, trade secrets, products, software, programs, developments, know-how, pricing information, marketing and sales information, business plans or dealings, financial information, Subscribers and potential Subscribers and any other information which may reasonably be regarded as confidential and proprietary of the disclosing Party.

6.2. Exclusions. Confidential Information does not include information that the receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the receiving Party’s non-compliance with this Agreement; (c) was or is received by the receiving Party on a non-confidential basis from a third party that, to the receiving Party’s knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the receiving Party can demonstrate by written or other documentary records was or is independently developed by the receiving Party without reference to or use of any Confidential Information.

6.3. Non-disclosure. During the term of this Agreement, the receiving Party shall not disclose the other Party’s Confidential Information to any other person, other than to its officers, employees, agents or sub-contractors strictly on a need-to-know basis, each of which shall be aware of the confidential nature of the Confidential Information and bound by contractual obligations to maintain the confidentiality of such information. During the term of this Agreement, the receiving Party shall not use the other Party’s Confidential Information other than in the course of fulfilling its obligations under this Agreement or if compelled to disclose under applicable laws. Each Party agrees to implement reasonable security measures to protect the other Party’s Confidential Information.

7. INTELLECTUAL PROPERTY

7.1. FacilityOS’ Intellectual Property. As between the Parties, all intellectual property and other proprietary rights, including all rights provided under trade secret law, patent law, copyright law, trade mark, common law, or service mark law, design patent or industrial design law, semi-conductor chip or mask work law, and any other statutory provision or common law principle which may provide a right in either ideas, formulae, algorithms, concepts, inventions or know-how, whether registered or not and including all applications thereof (collectively, “Intellectual Property Rights”) in and to the Services (including any improvements, enhancements, or derivative works thereof), Professional Services, and all underlying software, technology, documentation, methodologies, tools, processes, and know-how used to provide the Services, belong exclusively to FacilityOS.

7.2. Subscriber’s Intellectual Property. As between the Parties, Subscriber retains all right, title, and interest in and to all Subscriber Data and any materials, content, branding, trademarks, logos, workflows, configurations, business rules, or other materials provided by or on behalf of Subscriber, in connection with the Services (collectively, “Subscriber IP”), together with all related Intellectual Property Rights.

7.3. Reserved Rights. Except as expressly set forth herein or in a Purchase Form, all Intellectual Property Rights are expressly reserved by the parties. The Subscriber or FacilityOS, as applicable, shall execute and deliver such instruments and take such other steps as may be requested by FacilityOS, as applicable, from time to time in order to give effect to the provisions.

8. TERM AND TERMINATION

8.1. Term of Agreement: This Agreement shall commence on the Effective Date and shall continue in force until terminated by either Party in accordance with the termination provisions herein (“Term”). Outstanding Purchase Forms shall not be affected by any termination of this Agreement, unless terminated along with the termination of the Agreement if mutually agreed by the Parties.

8.2. Subscription Period. Unless otherwise set out on a Purchase Form, each Subscription Period shall be one (1) year in length and shall automatically renew for successive one (1)-year periods, unless cancelled by the Subscriber with written notification sent to FacilityOS at least thirty (30) days prior to the end of the then current Subscription Period.

8.3. Termination. Either Party may terminate this Agreement and/or any outstanding Purchase Form if the other Party (a) commits a material breach of this Agreement and fails to cure such breach upon thirty (30) days prior written notice; or (b) becomes insolvent, files a bankruptcy petition, institutes proceedings for liquidation or winding up or enters into an agreement to assign its assets for the benefit of creditors. Termination of this Agreement or any Purchase Form will not affect Subscriber’s obligation to pay for the undisputed Services provided prior to the termination, which amounts shall be payable immediately upon the effective date of termination. If Subscriber terminates a Purchase Form due to breach by FacilityOS, then Subscriber shall be entitled to a pro rata refund of any prepaid Fees from effective date of termination of such Purchase Form.

8.4. Effect of Termination. Upon termination or expiration of this Agreement, Subscriber shall immediately cease to use the Services and unless such termination or expiration is caused by FacilityOS’ material breach, Subscriber shall return, at its own cost and expense, all Hardware back to FacilityOS, in reasonable condition (ordinary wear and tear excepted) to the location designated by FacilityOS. From and after the termination date, Subscriber shall no longer have access to any Subscriber Data. Additionally, except as expressly otherwise provided in this Agreement: (a) all rights, licenses, consents, and authorizations granted by either Party to the other hereunder will immediately terminate; (b) FacilityOS shall cease all use of any Subscriber Data or Confidential Information; (c) Subscriber shall cease all use of any Services, including on its Subscriber Systems; (d) Subscriber may disable all Subscriber and End User access to the Services; and (e) each Party shall promptly deliver to the other all papers, databases, documents, software programs, and other tangible items (including all copies) constituting the other Party’s Confidential Information in its possession or under its control, or on request destroy such materials and certify that it has done so.

9. WARRANTY DISCLAIMERS. THE SERVICES AND, WHERE APPLICABLE, PROFESSIONAL SERVICES, ARE PROVIDED “AS IS” AND AS AVAILABLE AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THERE ARE NO REPRESENTATIONS OR WARRANTIES, CONDITIONS OR GUARANTEES, EXPRESS OR IMPLIED (WHETHER ARISING UNDER COMMON LAW, STATUTE, COURSE OF DEALING OR TRADE, OR OTHERWISE) RELATING TO THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OR CONDITION OF QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, CURRENCY, ACCESSIBILITY, RELIABILITY, SECURITY, AVAILABILITY, UNINTERRUPTED USE, OR THAT THE SERVICES ARE OR WILL BE ERROR-FREE OR VIRUSFREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY FACILITYOS WILL CREATE ANY REPRESENTATION, WARRANTY OR CONDITION.

10. INDEMNIFICATIONS

10.1. FacilityOS’ Indemnification Obligation. At its own cost, FacilityOS shall indemnify and defend Subscriber, its officers, directors, employees, representatives and any of its Affiliates (collectively, the “Subscriber Indemnified Parties”) against any and all third party claims or demands that the Services (or any portion thereof) when expressly used pursuant to this Agreement violated a third party’s Intellectual Property Rights and all amounts required to be paid in a settlement approved by FacilityOS or awarded by a court in a final, non-appealable judgement; provided that: (a) Subscriber has promptly notified FacilityOS of such claim and FacilityOS is not prejudiced by any delay by Subscriber; (b) FacilityOS shall have full control over the defense of the claim, provided that any settlement or resolution entered into by FacilityOS shall not require any admission of liability or any payment by Subscriber; (c) Subscriber has not made any admission against FacilityOS’ interests and has not agreed to any settlement of any claim or demand without FacilityOS’ consent; and (d) Subscriber shall cooperate with FacilityOS in the defense of the claim, at FacilityOS’ expense.

10.2. Exceptions to FacilityOS’ Indemnification Obligation. Notwithstanding Section 10.1, FacilityOS shall be under no obligation to indemnify or defend any Subscriber Indemnified Party to the extent any infringement claim or demand by a third party arises as a result of: (a) access to or use of the Services in violation of this Agreement or inconsistent with instructions and guidance set out within the Services; (b) any modification to the Services (or any portion thereof) by a party, other than FacilityOS or its authorized agents, and without FacilityOS’ consent; (c) any combination of the Services (or any portion thereof) with any computer program, software, hardware or equipment where such claim of infringement would not exist without such combination; or (d) access to or use of the Services, after FacilityOS notifies Subscriber to discontinue such access or use, upon detecting a material issue.

10.3. Additional Infringement Remedies. At FacilityOS’ sole expense and discretion, in response to any pending or potential infringement claim, FacilityOS may: (a) procure for Subscriber the right to continue using the Services or applicable portion thereof; (b) replace or modify the Services or applicable portion thereof so that it is non-infringing; or (c) terminate this Agreement and any outstanding Purchase Forms either entirely or only as it relates to the infringing features of the Services and refund to Subscriber the pro rata unused portion of any prepaid fees allocable to such part(s) of the Services that are terminated.

10.4. Sole Remedy. Sections 10.1 and 10.3 constitute Subscriber’s sole remedy from FacilityOS in respect of infringement claims and demands.

10.5. Subscriber’s Indemnification Obligation. At its own cost, Subscriber shall indemnify and defend FacilityOS, its officers, directors, employees, representatives and any direct or indirect parent or subsidiary entities (collectively, the “FacilityOS Indemnified Parties”) against any and all third party claims or demands (including claims and demands from End Users) related to (i) any act or omission which results in Subscriber’s failure or alleged failure to comply with its obligations under Section 3.2 (Unauthorized Access or Use), Section 3.5 (Subscriber Data), Section 4.2 (Personal Data), and Section 4.6 (Data Security and Data Privacy). The foregoing indemnification obligations apply provided that (a) FacilityOS has promptly notified Subscriber of such claim and Subscriber is not prejudiced by any delay by FacilityOS; (b) Subscriber shall have full control over the defense of the claim, provided that any settlement or resolution entered into by Subscriber shall not require any admission of liability or any payment by FacilityOS; (c) FacilityOS has not made any admission against Subscriber’s interests or has not agreed to any settlement of any claim or demand without Subscriber’s consent; and (d) FacilityOS shall cooperate with Subscriber in the defense of the claim, at Subscriber’s expense.

11. LIMITATION OF LIABILITY

11.1. Exclusions. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE FOR ANY (i) INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES; AND (ii) LOST PROFITS, ANTICIPATED OR LOST REVENUE, LOSS OF DATA, LOSS OF USE OF ANY INFORMATION SYSTEM, FAILURE TO REALIZE EXPECTED SAVINGS OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS, OR ANY THIRD PARTY CLAIM, WHETHER ARISING IN NEGLIGENCE, TORT, FUNDAMENTAL BREACH, STATUTE, EQUITY, CONTRACT, COMMON LAW, OR ANY OTHER CAUSE OF ACTION OR LEGAL THEORY, HOWEVER CAUSED, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.

11.2. Limitations; Carve-Outs. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, A PARTY’S TOTAL CUMULATIVE LIABILITY FOR DAMAGES, EXPENSES, COSTS AND LOSSES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE SERVICES (A) SHALL BE LIMITED TO DIRECT, ACTUAL, PROVABLE DAMAGES, AND (B) IN NO EVENT SHALL EXCEED, IN THE AGGREGATE, ALL AMOUNTS PAID OR PAYABLE BY SUBSCRIBER TO FACILITYOS UNDER THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRIOR TO THE EVENTS GIVING RISE TO SUCH CLAIM FOR DAMAGES. PROVIDED, HOWEVER, THAT LIMITATIONS UNDER THIS SECTION SHALL NOT APPLY TO DAMAGES ARISING OUT OF A PARTY’S GROSS NEGLIGENCE OR WILFUL MISCONDUCT, OR FACILITYOS’ INDEMNIFICATION OBLGIATION UNDER SECTION 10.1 (LIMITED TO INDEMNIFICATION FOR THIRD PARTY INFRIGNEMENT CLAIMS).

11.3. Exclusion Of Third-Party Software And Services. FacilityOS shall not be liable for any failures or damage caused by third party software or services.

12. MISCELLANEOUS

12.1. Assignment. Without the prior written consent of FacilityOS, Subscriber may not assign this Agreement or any of its rights or obligations hereunder, except to an affiliate and provided (a) such affiliate agrees to be bound by the terms of this Agreement and (b) Subscriber remains responsible for its affiliate’s compliance with this Agreement, including payment of all Fees.

12.2. Entire Agreement, Amendment, Supplemental Terms. This Agreement contains the entire understanding of the Parties hereto on the subject matter hereof and supersedes any previous agreements or understandings, written or oral, in effect between the Parties relating to the subject matter hereof. No amendment or modification of this Agreement shall be effective or binding unless agreed to in writing by both Parties. Any terms, conditions, policies, or other documents provided by Subscriber (including purchase order terms, vendor onboarding terms, online terms, or similar) are rejected and shall have no effect, unless expressly agreed to and signed by both Parties. If FacilityOS does so agree, such terms shall apply only to the specific subject matter and extent expressly agreed and shall not otherwise modify this Agreement.

12.3. Waiver of Breach. The waiver of any breach of this Agreement, or the failure of a Party to exercise or enforce any right under this Agreement, shall in no event constitute a waiver of any other breach, whether similar or dissimilar in nature, or prevent the exercise or enforcement of any right under this Agreement.

12.4. No Third-Party Beneficiaries. Nothing in this Agreement is intended to confer on any Party other than FacilityOS, Subscriber and their permitted assigns any benefits, rights, or remedies.

12.5. Equitable Remedies. The Parties agree that in the event of any breach or threatened breach of Section 6.3 (Non-disclosure), money damages would be an inadequate remedy, and the affected Party shall be entitled to seek injunctive relief, without the need to post a bond or other security.

12.6. Notices. Any notice required or otherwise provided for in this Agreement shall be given to FacilityOS or Subscriber, as the case may be, at the physical and/or e-mail address set forth on the Purchase Form. Any notice to FacilityOS shall also be delivered via email to legal@FacilityOS.com.

12.7. Severability. If any provision of this Agreement is deemed contrary to applicable law or unenforceable by a court of competent jurisdiction, the remaining terms and conditions of this Agreement shall be unimpaired, and the Parties shall substitute a valid, legal and enforceable provision as close in legal and economic consequence as possible to the provision being struck or considered unenforceable. If the limitation of liability set forth in this Agreement is limited by law, then FacilityOS’ liability will be limited to the greatest extent permitted by law.

12.8. Force Majeure. Except for payment and confidentiality obligations, neither Party shall be liable for any delay or failure to perform its obligations in this Agreement attributable to circumstances beyond its reasonable control, such as acts of God, fire, natural disaster, terrorism, labor stoppage, internet service provider failures or delays, civil unrest, war or military hostilities, criminal acts of third Parties.

12.9. Publicity Rights. FacilityOS shall have the right to use the name, trademarks, logos, trade names, or trade dress of Subscriber in publicity, advertising, Subscriber list, or announcements.

12.10. Governing Law. Regardless of the place of execution or performance or the domicile of the Parties, this Agreement is governed by the laws of the Province of Ontario and the federal laws applicable therein. The Parties irrevocably and unconditionally consent, submit and attorn to the non-exclusive jurisdiction of the courts of Ontario and all courts competent to hear appeals from them for the purpose of any action or proceeding brought by either of them in connection with or arising out of this Agreement and any Purchase Form.

12.11. Headings. Headings used in this Agreement are for convenience of reference only and shall not be used to modify the meaning of or to interpret the terms and conditions of this Agreement.

12.12. Communications. Subscriber acknowledges and agrees that FacilityOS may communicate information on Service updates to Subscriber by sending service emails to Subscriber’s email addresses provided for creating user accounts in connection with the Services (“Admin User”). Stated service emails may also contain information about FacilityOS’ other product(s) that may benefit or otherwise be relevant to Subscriber’s rights under this Agreement. Each Admin User shall have an option to unsubscribe from such service emails by following the step(s) provided therein.

12.13. Survival. The following sections/clause of this Agreement shall survive the termination or expiration of this Agreement: Section 7 (INTELLECTUAL PROPERTY), Section 5 (FEES AND PAYMENT TERMS), Section 6 (CONFIDENTIALITY, SECURITY AND PRIVACY), Section 8.4 (EFFECT OF TERMINATION), Section 11 (LIMITATION OF LIABILITY), and Section 12.10 (GOVERNING LAW).

12.14. Independent Contractors. Each Party’s relationship with the other Party will be that of an independent contractor. Nothing in this Agreement and any Purchase Form is to be construed as designating either Party as an agent, employee, joint venture, or partner of the other Party. Neither Party shall permit its personnel or agents to hold themselves out to be, or claim to be officers, directors or employees of the other Party, or make claims, demands or applications with respect to any right or privileges available to any officer, director or employee of the other Party. Neither Party shall have the authority to serve as agent for the other Party, to make any statement, representation or commitment of any kind on behalf of the other Party and neither Party shall take any action which may be binding on the other Party, unless so approved in writing by such other Party. The Parties shall at all times during the term of this Agreement and any Purchase Form maintain such supervision, direction and control over its personnel and agents as is consistent with and necessary to preserve the FacilityOS’ independent contractor status.

12.15. Amendments; No Waiver. This Agreement may be modified only by a written amendment signed by the Parties. Any additional, supplementary or conflicting terms supplied by or on behalf of FacilityOS (whether in hard copy or electronic form), including those contained on or within any portal, mobile software application or any websites used to access or receive the Services, are specifically and expressly rejected by Subscriber and shall be of no force or effect (even if “accepted” by any user of Subscriber, its Affiliates or Representatives as a condition to entering the applicable portal or website or downloading or using the applicable mobile software application).

12.16. Counterparts; Signatures. This Agreement and any amendments thereto, may be executed in counterparts. Each such counterpart shall be an original and together shall constitute but one and the same document. The Parties agree that (i) a photographic, scanned or facsimile copy of the signature evidencing a Party’s execution of a document, and (ii) documents signed with an electronic signature or imprint and electronically transmitted (e.g., DocuSign), shall be deemed to be an original signature (or have the same effect as an original signature) and may be used in lieu of an original signature for any purpose.

Appendix A

Data Processing Agreement

As provided in Section 4.1 above, Parties hereto agree to the DPA provided at: FacilityOS - DPA

Appendix B

Support Program

As provided in Section 2.3 above, Parties hereto agree to the applicable Support Program provided in the table below:

Appendix C

AI Use and Disclosure
This AI Use and Disclosure Addendum (“AI Addendum”) forms part of, and is incorporated into, the Subscription Agreement (the “Agreement”) between iLobby Corp., d/b/a FacilityOS (“Provider”) and Subscriber. Capitalized terms not defined herein have the meanings set forth in the Agreement. In the event of a conflict between this AI Addendum and the Agreement, this AI Addendum will control solely with respect to AI-related matters.

1.    Definitions
1.1.    “Beacon” means Provider’s AI-branded functionality, including AI Features made available within the Services from time to time. 
1.2.    “AI Features” means functionality made available by Provider under the Beacon brand that uses artificial intelligence or machine-learning techniques to assist with tasks such as summarization, natural language querying, classification, recommendations, automation, and analytics, including, as applicable, (i) FOS Assistant and Insights, (ii) LOS AI Receiving Assistant (including label parsing), and (iii) Visitor screening-related features to the extent enabled in the Services. 
1.3.    “Inference” means processing of Subscriber Data by AI Features to generate outputs for Subscriber’s use.

2.    Scope of AI Features. 
AI Features are designed to support and augment Subscriber workflows, and do not replace human judgment or decision-making. Outputs generated by AI Features are informational and assistive in nature. Subscriber remains solely responsible for: (i) reviewing and validating AI-generated outputs, and (ii) any decisions or actions taken based on such outputs.

3.    Purpose and Use. 
3.1.    Permitted Use. Provider may use Subscriber Data solely to: (i) provide, maintain, support, secure, and improve the Services, including AI Features, and; (ii) perform Inference in connection with Subscriber’s use of AI Features, in each case as permitted under the Agreement and the DPA.
3.2.    Personal Data. Provider does not use Personal Data for the purpose of training or fine-tuning Provider-operated AI models or third-party AI models in a manner intended to cause such models to store, memorize, or reproduce Personal Data. Any processing of Personal Data in connection with the operation or improvement of the Services (including where such data is embedded in operational content), is subject to Provider’s standard data protection practices under the Agreement and the DPA. For clarity, Provider does not retain Personal Data as standalone training data. 
3.3.    Subscriber Data Handling and Third Parties. Subscriber Data processed in connection with AI Features is handled in the same manner as Subscriber Data processed for Service features, including with respect to security measures, access controls, and use of sub-processors, as described in the Agreement. Provider does not permit third parties to use Subscriber Data for AI training purposes, other than as necessary to provide the Services on Provider’s behalf, in accordance with the Agreement and the DPA. 

4.    Third-Party AI Providers. 
Provider may use third-party service providers to enable certain features (which may include OCR, document authentication/validation, or other automated processing), subject to the confidentiality, security, and data protection obligations in the Agreement and the DPA. Without limiting the foregoing, Subscriber acknowledges that certain features may involve transmitting limited data (which may include images of identification documents or shipping labels and associated metadata) to third-party providers for processing and returning a result to the Services (e.g., “valid/invalid” or extracted label fields). Unless otherwise specified in the DPA or applicable documentation, such third-party providers are not permitted to use Subscriber Data for model training.

5.    Security and Compliance.
AI Features are subject to Provider’s information security program and applicable data protection obligations under the Agreement, including the DPA, as agreed to by the parties. Nothing in this AI Addendum expands Provider’s right to access, use, or disclose Subscriber Data beyond what is permitted under the Agreement.

6.    Limitations and Disclaimers.
Subscriber acknowledges that: (i) AI Features may produce incomplete, inaccurate, or non-deterministic outputs; (ii) AI Features do not provide legal, medical, financial, or compliance advice; (iii) Provider does not guarantee the accuracy, completeness, or suitability of AI-generated outputs; and (iv) AI Features are provided “as is”, subject to the warranties and limitations set forth in the Agreement.

7.    Subscriber Controls and Acknowledgements.
Where applicable, Subscriber may enable or disable AI Features at the account or feature level; or request clarification regarding AI Feature behavior and data handling by emailing Provider at info@facilityos.com or such other contact as provided under the Purchase Form. Subscriber is responsible for providing any notices and obtaining any consents required under applicable law from its End Users or third parties in connection with Subscriber’s enablement and use of AI Features, including where Subscriber requires or permits such individuals to submit data that may be processed by AI Features. Provider does not have a direct relationship with Subscriber’s End Users or third parties and does not control the content or manner of such notices.

8.    Survival.
This AI Addendum will survive termination of the Agreement to the extent it governs Provider’s obligations regarding Subscriber Data processed pursuant to the terms of the Agreement.