General Terms & Conditions

This document states the General Terms & Conditions for Spherity’s product and service offering and constitutes a licensing agreement (henceforth "Agreement") that comes into effect on the day both Parties have signed or otherwise accepted this Agreement (“Acceptance Date”). It is entered into by and between the applicable legal entity of Spherity (refer to Section ‘Legal Entities and Applicable Service’), hereinafter referred to as "Spherity", and the company that acquires the license, hereinafter referred to as "Customer". This Agreement includes and incorporates the associated Service Level and Support Terms, Acceptable Use Policy and Data Processing Addendum (“DPA”), and contains, among other things, warranty disclaimers, liability limitations and use limitations. Customer’s use of and Spherity’s Service (as defined below in Section “Definitions”) are governed by this Agreement. By accepting this Agreement, Customer also agrees to the provisions of the DPA, which is hereby incorporated by reference into this Agreement.

EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON ACCEPTING IT HAS THE AUTHORITY TO DO SO. THE PERSON ACCEPTING THIS AGREEMENT ON CUSTOMER'S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CUSTOMER TO THESE TERMS AND CONDITIONS.

1. DEFINITIONS

The following capitalized terms will have the following meanings whenever used in this Agreement.

1.1 “Affiliate” means any entity controlling, controlled by, or under common control with the referenced entity, where the term “control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.

1.2 “AUP” means Spherity’s Acceptable Use Policy, attached hereto as Schedule A.

1.3 “Authorized Administrator” means Customer’s Main or Additional Contact, Technical Administrators and Financial Administrators.

1.4 “Cardinal Obligation” means a material contractual duty; namely, an obligation whose fulfilment is essential to the proper performance of this Agreement and on the observance of which the Customer may regularly rely.

1.5 “Contractor” means Customer’s independent contractors and consultants who are not competitors of Spherity.

1.6 “Customer Data” means data in electronic form input or collected through the System by or from Customer, including without limitation by Customer’s Users.

1.7 “Damages” means either Party’s claims for reimbursement of expenditures and damages.

1.8 “Documentation” means Spherity’s standard manual related to use of the System, as well as then-current published guides, manuals, and online help that describe the functions, operation and use of the System as may be updated from time to time by Spherity.

1.9 “End Date” is the date when Spherity’s performance obligations as per Order cease and Customer is no longer entitled to the respective Service delivery.

1.10 “Enterprise Identity” means the representation of the Customer’s legal entity via a unique identifier within the System.

1.11 “Invoice Date” means the date on which Spherity issues an invoice to Customer for the Services rendered in the applicable Subscription Period.

1.12 “Invoicing Interval” is the part of the Service Period and Subscription Period, respectively, for which the invoice is issued.

1.13 “Main Contact” means the primary Customer contact for onboarding.

1.14 “Offer” means a binding proposal of performance obligations made by Spherity to Customer as applicable and as valid at the time of its communication to Customer through any appropriate written means, such as, but not limited to, offer form, website, or email.

1.15 “Order” means the binding approval by Customer of a specific Offer and request for its execution in exchange for payment to Spherity in accordance with the specified payment terms and conditions.

1.16 “Order Date” is the date when Spherity’s performance obligations as per Order commence and Customer is entitled to the respective Service delivery.

1.17 “Party” means either Spherity or the Customer. Spherity and the Customer may hereinafter jointly be referred to as the “Parties.”

1.18 "Permitted User" means an employee or contractor of Customer or of Customer’s Affiliate who is authorized to use the System.

1.19 “Primary Access Location” means the primary (but not the only) location from which Customer will access the System.

1.20 “Privacy Policy” means Spherity’s Privacy Policy as it is amended from time to time, currently posted at spherity.com/privacy-policy.

1.21 “Service” means Spherity’s service in the context of an Offer, which comprises the System and any additional support or further services by Spherity as stated in the Offer.

1.22 “Service Fee” is the total amount payable by Customer to Spherity, being the sum of the amounts set forth in the Order.

1.23 “Service Period” is the total minimum contractual Service term as set forth in the Offer and confirmed in the Order.

1.24 “SLA” means Spherity’s Service Level Agreement and Support Terms, which sets forth service level, support and service-specific terms, attached hereto as Schedule B.

1.25 “Spherity Technology” means (i) the System, Documentation, and any and all related and underlying technology and documentation and (ii) any intellectual property Spherity or its suppliers developed hereunder.

1.26 “Subscription Fee” means the amount per Subscription Period payable by Customer to Spherity as set forth in the Offer and confirmed in the Order.

1.27 “Subscription Period” is the recurring period of Service provision by Spherity of up to twelve (12) months as specified in the Order, subject to automatic renewal unless specified otherwise in the Order.

1.28 “System” means Spherity’s software-as-a-service (SaaS)-based applications and any applicable features and directly related services.

1.29 “User” means any individual who uses the System on Customer’s behalf or through Customer’s account or passwords, whether authorized or not.

1.30 “Usage Metric” means the standard of measurement used to determine the usage-based part of the Subscription Fee set forth in the Order.

2. THE SYSTEM

2.1 Use of the System. Spherity will provide Customer with one or more account(s) for use of the System during the stated Subscription Period as specified in the Order. Customer may access and use the System solely for its own benefit and for the intended purposes and only in accordance with this Agreement or the Documentation. For clarity, the System is provided on a remote, software-as-a-service basis. To the extent any software code is provided, Spherity grants Customer a non-exclusive, non-sublicensable, non-transferable license to internally use such software for the purpose of accessing and using the System. If applicable, use of and access to the System is permitted only by Permitted Users.

2.2 Support. During the Service Period, Spherity’s Service shall include support for Permitted Users in accordance with the service level stated in the Order. Spherity’s Service Level Agreement and Support Terms can be found in Schedule B.

2.3 Service Limitations. Spherity shall operate the System in substantial conformity with the applicable Documentation and any applicable Service agreements supplementary to this Agreement. Spherity does not assure that Customer’s use of the System will be uninterrupted or error-free. Spherity will not review the Customer Data for accuracy and will not maintain the Customer Data. Other than pursuant to any applicable Service Level Agreement and associated credits, Spherity shall not be liable for delays, interruptions, service failures and other problems inherent in the use of the internet and electronic communications or other systems all of which are outside the reasonable control of Spherity.

2.4 Documentation. Customer may reproduce and use the Documentation solely as necessary to support Users’ use of the System.

2.5 System Revisions. Spherity may revise System features and functions or the SLA at any time. Changes made to the System will be documented and communicated to Customer as appropriate and with reasonable notice. If any such revision to the System materially reduces features or functionality provided pursuant to an Order, Customer may within 30 days of notice of the revision terminate such Order, without cause, or terminate this Agreement without cause if such Order is the only one outstanding.

2.6 Professional Services; Training. To the extent set forth in the Order, Statement of Work, or as otherwise agreed to by the Parties in writing, Spherity shall provide training and professional services in support of the implementation and use of the System.

3. TERM AND TERMINATION

3.1 Term. This Agreement is effective as of the Acceptance Date, and expires at an expiration date agreed to by both Parties or terminates as set forth below. Where Spherity offers a fully automated purchasing process, (a) Spherity’s acceptance of this Agreement in its unmodified, then-current version is implied without the need for any such explicit statement as soon as Customer accepts the same Agreement; (b) this Agreement expires at the End Date of the Service Period as specified in the Order.

3.2 Renewals. This Agreement governs all renewed Orders within its scope. After the end of the Service Period, each Order shall automatically renew for successive Subscription Periods of equal length to the prior Subscription Period, unless either Party provides the other Party with written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current Subscription Period. Except as explicitly provided for in the previous sentence, termination for convenience of an Order by either Party is not permitted.

3.3 Termination. Either Party may terminate this Agreement on written notice if there are no Orders in effect. In addition, either Party may terminate this Agreement upon written notice if the other Party (a) ceases operation without a successor; or (b) is affected by a significant deterioration in its financial circumstances. An indication of such deterioration may also be, inter alia, that a creditor pursues enforcement against the assets of the respective Party. Other rights under statutory provisions to terminate the Agreement for good cause remain unaffected. For clarity, termination of this Agreement automatically terminates all underlying Orders.

3.4 Effects of Termination. Upon termination of this Agreement, (i) Customer shall immediately cease all use of and access to the System (including any and all Spherity Technology) and (ii) each Party shall return to the other Party (or destroy) such other Party’s Confidential Information (subject to Section 3.5 below). Termination of this Agreement is not an exclusive remedy and the exercise of either Party of any remedy under this Agreement shall be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.

3.5 Customer Data. During the thirty (30)-day period immediately following expiration or termination of this Agreement, Spherity shall provide Customer with access to the Customer Data for retrieval. Thereafter, Spherity is under no obligation to keep or make available to Customer any Customer Data.

3.6 Survival. The following provisions will survive termination or expiration of this Agreement: (a) any obligation of Customer to pay Service Fees, including any penalties, incurred before termination; (b) Articles and Sections 3 (Term and Termination), 5.1 (Protection of personal data), 6.1 (Acceptable Use), 7 (Ownership), 8 (Confidential Information), 9.3 (Warranty Disclaimers), 10 (Indemnification), and 11 (Limitation of Liability); and (c) any other provision of this Agreement that must survive to fulfill its essential purpose.

4. PAYMENT

4.1 Offer and Order. Spherity makes a binding written Service proposal in the Offer which is valid at the time of its communication to Customer and any period thereafter as explicitly stated. Unless bound by a fully automated purchase process, Customer may negotiate the details of the Offer which may result in the original Offer and the resulting Order differing in their details. In any case, the Order constitutes (a) a binding approval by Customer of a specific Offer and any terms and conditions stated in the applicable Offer are also considered stated in the Order; and (b) a request for Order execution in exchange for payment of Service Fees to Spherity in accordance with the specified payment terms and conditions.

4.2 Service Period. The Service Period shall be effective as of the Order Date and remain valid for the duration stated in the Order. Unless otherwise stated in the Order, the Service Period is terminated as set forth in Sections 3 and 4.

4.3 Fees and Payment. Customer shall pay Spherity the Service Fee in the currency stated in the Order, which includes payment of the Subscription Fee for each Subscription Period as specified in the Order. All fees are based on the Order and shall be paid by Customer within thirty (30) days from the Invoice Date unless otherwise specified in the Order. When any applicable Usage Metric limit as specified in the Order is exceeded within the Subscription Period, the Subscription Fees will automatically increase as per then-current usage-based pricing tiers, unless specified otherwise in the Order, effective the month following the month in which the higher usage-based threshold was achieved. Customer shall provide Spherity with written notice of any sustained reduction in usage that falls below the current usage-based threshold at least thirty (30) days prior to the expiration of the then-current Subscription Period in order to reduce the Subscription Fees in the subsequent Subscription Period in accordance with applicable then-current usage-based pricing tiers.

4.4 Unpaid fees. Unpaid fees will accrue interest at the maximum legal rate. Customer purchase orders are for administrative convenience and not a condition of payment. Payment is not dependent upon completion of any implementation or other services unless agreed otherwise in the Order.

4.5 Invoicing. Unless agreed otherwise in writing between the Parties, Subscription Fees will be charged by Spherity for each Invoicing Interval and paid by Customer as specified in the Order. Spherity may provide invoices to an email address provided by Customer. Except for Subscription Fee increases, Subscription Fees for each Subscription Period will be equal to the amount payable in the immediately preceding Subscription Period pertaining to the same Order. Customer will reimburse Spherity for all pre-approved (by Customer), reasonable, and appropriately documented travel and related expenses incurred by Spherity in performing the Service.

4.6 Adjustment of Fees. Spherity may reasonably adjust the Subscription Fees charged to Customer hereunder on written notice delivered to Customer at least sixty (60) days prior to the enforcement date of the new Subscription Fee schedule. The new Subscription Fees will be applicable to Customer’s next Subscription Period immediately following the end of the stated notice period. Not raising fees is not a waiver of Spherity’s right to do so. Subscription Fee adjustments also apply proportionally if Customer elects to reduce the Service from the then-current to consecutive Subscription Periods. Except as expressly set forth in Sections 2.2 (Support) and 2.3 (Service Limitations), 3.3 (Termination), 3.4 (Effect of Termination), 9 (Representations & Warranties), and 11 (Limitation of Liability) all fees are non-refundable.

4.7 Taxes. Amounts due as per Order are payable to Spherity without deduction and are net of any tax, tariff, duty, or assessment imposed by any government authority (national, state, provincial, or local), including without limitation any sales, use, excise, ad valorem, property, withholding, or value added tax withheld at the source. If applicable law requires withholding or deduction of such taxes or duties, Customer shall separately pay Spherity the withheld or deducted amount. However, the prior two sentences do not apply to taxes based on Spherity’s net income.

4.8 Suspension of Service. If Customer’s account is ten (10) days or more overdue, in addition to any of its other rights or remedies, Spherity reserves the right to suspend Customer’s access to the Service without liability to Customer until such amounts and any applicable penalties are paid in full. Suspension of the Service pursuant to this Section shall not relieve Customer of any of its payment obligations under this Agreement. All Service Fees, including Subscription Fees, shall continue to accrue in full during any period of suspension. Customer acknowledges that suspension is a payment-enforcement measure and does not constitute a termination, reduction, or waiver of the Service or of any fees due thereunder. If payment remains overdue for one hundred and twenty (120) or more days after suspension, Spherity may terminate the Agreement and all Orders, retaining all fees paid and accelerating remaining Service Fees as liquidated damages.

5. CUSTOMER DATA & PRIVACY

5.1 Protection of personal data. Personal Data, defined as any information relating to an identified or identifiable natural person shall be afforded all of the protections set forth in these terms and conditions. In addition and without limiting the terms generally applicable to Personal Data, the Parties agree that each Party will process, apply, view and use the Personal Data only to the extent necessary to comply with this Agreement. Neither Party will transfer or otherwise permit the use of the other Party's Personal Data unless expressly directed or authorized by the other Party. Both Parties will comply with applicable laws and best practices relating to privacy and data security.

5.2 Data Security. Both Parties shall fully comply with the data protection and privacy legislation in all relevant jurisdictions and shall ensure that its respective employees, agents, and contractors observe the provisions of that legislation. Both Parties represent that they have developed and implemented any policies and procedures, including covenants where appropriate, that it will maintain effective information security policies and procedures that include administrative, technical, and physical safeguards designed to (i) ensure the confidentiality, security, integrity and availability of information provided hereunder; (ii) protect against anticipated threats or hazards to the confidentiality, security, integrity and availability of such information; (iii) protect against unauthorized access or use of such information; and (iv) ensure the proper disposal of such information. Either Party shall promptly notify the other Party of (i) any breach of confidentiality or security, applicable to this Agreement, by itself or any of its agents or subcontractors, (ii) unauthorized disclosure of Customer’s data, or (iii) any breach of information security policies or procedures in regards to this Agreement. Notice shall be provided no later than twenty-four (24) hours upon discovery of the breach.

5.3 Data Processing. To the extent that Spherity processes Personal Data on behalf of the Customer in the course of providing the System, the provisions of the DPA shall apply. The DPA is available at Spherity’s Compliance Hub. The Parties agree that the DPA shall be deemed legally agreed upon at the conclusion of this Agreement.

6. CUSTOMER'S RESPONSIBILITIES & RESTRICTIONS

6.1 Acceptable Use. Customer shall comply with the AUP.

6.2 Unauthorized Access. Customer shall take reasonable steps to prevent unauthorized access to the System, including without limitation by protecting its passwords and other log-in information. If Customer is given passwords to access the System, Customer shall require that all Permitted Users keep user ID and password information strictly confidential and do not share such information with any unauthorized person. Customer shall notify Spherity immediately of any known or suspected unauthorized use of the System or breach of its security regarding the System and shall use best and reasonable efforts to stop said breach if applicable. Customer shall be responsible for actions taken using Customer’s accounts and passwords.

6.3 Compliance with Laws. In its use of the System, Customer shall comply with all applicable laws, including without limitation laws governing the protection of personally identifiable information and other laws applicable to the protection of Customer Data.

6.4 Users & System Access. Customer is responsible and liable for: (a) Users’ use of the System, including without limitation unauthorized User conduct and any User conduct that would violate the AUP or the requirements of this Agreement applicable to Customer; and (b) any use of the System through Customer’s account, whether authorized or unauthorized. Customer may permit its Contractors and employees and Contractors of its Affiliates to serve as Permitted Users; however, Customer remains responsible for compliance by each such Contractor with all of the terms and conditions of this Agreement and any such use of System by such Contractor shall be for the sole benefit of Customer.

7. OWNERSHIP

7.1 IP Rights to the System. Customer acknowledges that no intellectual property rights are assigned or transferred to Customer hereunder. Customer obtains only a limited right to the Spherity Services irrespective of any use of the words “purchase”, “sale” or like terms hereunder. Customer agrees that Spherity or its suppliers retain all right, title and interest (including all patent, copyright, trade secret and other intellectual property rights) in and to Spherity Technology.

8. CONFIDENTIAL INFORMATION

8.1 Non-disclosure. Each Party agrees that all Confidential Information constitutes the confidential property of the disclosing Party, so long as such information is identified as confidential at the time of disclosure or should be reasonably known by the receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Spherity Technology, performance information relating to the System, and the terms and conditions of this Agreement shall be deemed Confidential Information of Spherity without any marking or further designation. In addition, all fees, pricing, and contractual information shall be Spherity’s Confidential Information unless shared or published by Spherity. Except as expressly authorized herein, the receiving Party shall hold in confidence and not use or disclose any Confidential Information. The receiving Party’s nondisclosure obligation shall not apply to information which the receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the receiving Party; (iii) is rightfully obtained by the receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees or Contractors of the receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the disclosing Party).

8.2 Injunction. Each Party agrees that breach of this Article 8 would cause the other Party irreparable injury, for which monetary Damages would not provide adequate compensation, and that in addition to any other remedy, the first Party will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

8.3 Retention of Rights. This Agreement does not transfer ownership of Confidential Information or grant a license thereto

8.4 Exception & Immunity. Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), Customer is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement:

(a) Immunity. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that- (A) is made- (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (B) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.

(b) Use of Trade Secret Information in Anti-Retaliation Lawsuit. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual- (A) files any document containing the trade secret under seal; and (B) does not disclose the trade secret, except pursuant to court order.

9. REPRESENTATIONS & WARRANTIES

9.1 From Spherity. Spherity represents and warrants that it is the owner of the System and of each and every component thereof, or the recipient of a valid license thereto, and that it has and will maintain the full power and authority to grant the rights to use the System set forth in this Agreement without the further consent of any third party. Spherity’s representations and warranties in the preceding sentence do not apply to use of the System in combination with hardware or software not provided by Spherity. In the event of a breach of the warranty in this Section 9.1, Spherity, at its own expense, shall promptly take the following actions: (a) secure for Customer the right to continue using the System; (b) replace or modify the System to make it noninfringing; or (c) terminate the infringing features of the Service and refund to Customer any prepaid fees for such features, in proportion to the portion of the Subscription Period left after such termination. In conjunction with Customer’s right to terminate for breach where applicable, the preceding sentence states Spherity’s sole obligation and liability, and Customer’s sole remedy, for breach of the warranty in this Section 9.1 and for potential or actual intellectual property infringement by the System.

9.2 From Customer. Customer represents and warrants that: (a) it has the full right and authority to enter into, execute, and perform its obligations under this Agreement and that no pending or threatened claim or litigation known to it would have a material adverse impact on its ability to perform as required by this Agreement; (b) it has accurately identified itself and it has not provided any inaccurate information about itself to or through the System; and (c) it is a corporation, the sole proprietorship of an individual 18 years or older, or another entity authorized to do business pursuant to applicable law.

9.3 Warranty Disclaimers. Except to the extent set forth in any applicable SLA and in section 9.1 above, customer accepts the system “as is'' and as available, with no representation or warranty of any kind, express or implied, including without limitation implied warranties of merchantability, fitness for a particular purpose, or non-infringement of intellectual property rights, or any implied warranty arising from statute, course of dealing, course of performance, or usage of trade.

10. INDEMNIFICATION

10.1 Customer shall indemnify, defend and hold harmless Spherity from and against any and all third-party claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or relating to (a) Customer Data or Customer’s breach of Section 5 of this Agreement, or (b) any unauthorized or illegal use by Customer of the System. This indemnification obligation shall not apply in case Customer is not responsible for the respective third party claims, costs, damages, losses, liabilities and expenses and is subject to Customer receiving (i) prompt written notice of such claim (but in any event notice in sufficient time for Customer to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonably necessary cooperation of Spherity at Customer’s expense.

11. LIMITATION OF LIABILITY

11.1 General Limitation. Spherity shall be liable for damages arising from breaches of duty only in cases of intent and gross negligence on the part of Spherity itself, its legal representatives, or its vicarious agents.

11.2 Exception: Life, Body, Health. The limitations set forth in Section 11.1 shall not apply to liability for injuries to life, body, or health.

11.3 Exception: Cardinal Obligations. The limitations set forth in Section 11.1 shall furthermore not apply where Spherity has breached a Cardinal Obligation.

11.4 Limitation of Amount in Cases of Negligence. In cases of merely negligent breach of a Cardinal Obligation not resulting in injury to life, body, or health, Spherity's liability shall be limited to such damages as are typical and reasonably foreseeable for this type of contract at the time of its conclusion.

11.5 Exclusion of Further Liability. Any further liability of Spherity under or in connection with this Agreement shall not exist. The limitations and exclusions of liability set forth in this Section 11 shall also apply to the personal liability of Spherity's employees, vicarious agents, and corporate officers.

11.6 Exclusion of Third-Party Claims. The Parties agree that the contractual relationship, including all rights, obligations, and liabilities arising in connection therewith, shall exist exclusively between the Parties. Liability towards third parties is, to the extent permitted by applicable mandatory law, expressly excluded.

11.7 Liability Cap. Subject to Sections 11.2 and 11.3 above and without prejudice to liability that cannot be limited under mandatory applicable law, Spherity's total aggregate liability arising out of or in connection with this Agreement shall in no event exceed an amount equal to the total Subscription Fees actually paid and payable by Customer to Spherity during the twelve (12) months immediately preceding the event giving rise to the claim (the "Liability Cap").
For the avoidance of doubt, the Liability Cap applies per Party and across all claims in the aggregate, not per individual claim.

11.8 Exclusion of Indirect Damages. Spherity shall not be liable for any indirect, incidental, special, consequential, or punitive damages, including but not limited to loss of profits, loss of revenue, loss of data, loss of business opportunities, loss of goodwill, or loss of anticipated savings, regardless of whether such damages were foreseeable or whether Spherity has been advised of the possibility thereof.

11.9 Contractual Limitation Period. Any claims arising under or in connection with this Agreement shall be time-barred twelve (12) months after the date on which the claimant became aware, or ought reasonably to have become aware, of the circumstances giving rise to the claim, unless mandatory applicable law prescribes a longer limitation period.
This contractual limitation period shall not apply to claims arising under Sections 11.2 and 11.3.

11.10 Mandatory Law Savings Clause. Nothing in this Section 11 shall be construed to limit or exclude liability to the extent such limitation or exclusion is not permitted under applicable mandatory law, including but not limited to liability under the German Product Liability Act (Produkthaftungsgesetz), liability for fraudulent misrepresentation, or liability arising from a guarantee of quality expressly given by Spherity.

12. AMENDMENTS

12.1 Form of Amendment. This Agreement may be amended only in writing and shall be mutually accepted by both Parties, unless explicitly stated otherwise in this Agreement. Where Spherity offers a fully automated process, Spherity’s acceptance of an amended Agreement is implied without the need for any such explicit statement as soon as Customer accepts the same Agreement.

12.2 Effectiveness and Procedure. The amended Agreement will become effective and binding at the date indicated in the notice of the amendment. Spherity will provide Customer with notice of the amendment by email. If Customer does not agree with the amendment, Customer must notify Spherity in writing within thirty (30) days after Spherity has sent notice of the amendment. Following such notice by Customer, the subscription will continue to be governed by the Agreement prior to the amendment until the next Subscription Period renewal date, after which the then-current amended Agreement will apply. However, if Spherity can no longer reasonably provide the subscription under the Agreement prior to amendment (for example, if the revisions are required by law or result from general product changes), then the Agreement and affected Service will terminate upon Spherity’s notice to Customer in accordance with the provisions in Section 3 (Term and Termination) of this Agreement. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion. For the avoidance of doubt, any adjustments to the Service Fees or Subscription Fees made in accordance with Section 4 (Payment) shall not be deemed an amendment of this Agreement.

13. LEGAL ENTITIES AND APPLICABLE SERVICE

13.1 Responsible Entities. For the purposes of this Agreement, one of the entities as stated in the Order is responsible for the respective Service, either (a) Spherity Inc., 127 West 30th Street, 9th Floor, New York, NY, or (b) Spherity GmbH, Emil-Figge-Straße 80, 44227, Dortmund, Germany.

13.2 Applicable Contracting Party. Under this Agreement, the legal entity designated in Section 13.1 to be responsible for the Service stated in the Order will be the contracting party. By accepting this Agreement, Customer acknowledges and agrees that the applicable legal entity will be the party to the contract.

14. MARKETING

14.1 Reference Rights and Use of Marks. Customer grants Spherity a non-exclusive, revocable, and royalty-free license to use its name and logo on Spherity’s website and in marketing and sales materials to identify Customer as a user and to generally describe the business relationship. Spherity agrees to strictly comply with any trademark usage guidelines provided by the Customer.

14.2 Joint Marketing Activities. The creation of further joint promotional materials or participation in reference activities (e.g., case studies, success stories, webinars, or press releases) requires separate mutual coordination and consent. Where such cooperation is agreed upon, both parties shall, within their reasonable capabilities, provide appropriate resources to promote mutual promotional benefits.

15. GENERAL

15.1 Independent Contractors. The Parties are independent contractors and shall so represent themselves in all regards. Neither Party is the agent of the other, and neither may make commitments on the other’s behalf.

15.2 Subcontractors. Spherity may use the services of subcontractors for performance of services under this Agreement. However, Spherity remains responsible for (i) compliance of any such subcontractor with the terms of this Agreement and (ii) the overall performance of the System as required under this Agreement.

15.3 Notices. Any notice or communication required or permitted under this Agreement shall be in writing to the Parties at the addresses set forth on the Order or at such other address as may be given in writing by either Party to the other in accordance with this Agreement and shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail; (iv) if sent by email, the first business day following dispatch, provided each Party has whitelisted the other one’s email address.

15.4 Authorized Administrators. Spherity will provide confirmation that Customer’s Order has been processed (which includes the confirmed Order Date) to the Main Contact named in the Order. Contact information of Authorized Administrators provided by Customer in the Order or other relevant written communication will be used by Spherity to communicate downtimes and incidents. Customer will notify Spherity of any changes in contact information of the Authorized Administrators.

15.5 Primary Address Location. If Customer does not provide a Primary Access Location in the order, Spherity will incorporate a default Primary Access Location using the Customer’s sold-to address.

15.6 Force Majeure. No delay, failure, or default, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing Party’s reasonable control.

15.7 Assignment & Successors. This Agreement shall bind and inure to the benefit of each Party’s permitted successors and assignees. Neither Party may assign this Agreement except upon the advance written consent of the other Party, except that either Party may assign this Agreement (i) to an Affiliate of the assigning Party, or (ii) in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of such Party’s assets or voting securities, in either case with notice to the other Party. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 15.7 shall be null and void.

15.8 Severability. To the extent permitted by applicable law, the Parties hereby waive any provision of law that would render any clause of this Agreement invalid or otherwise unenforceable in any respect. In the event that a provision of this Agreement is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of this Agreement will continue in full force and effect.

15.9 No Waiver. Neither Party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

15.10 Choice of Law & Jurisdiction. This Agreement and all claims arising out of or related to this Agreement will be governed (a) by the law of the State of Delaware, USA, if the legal entity as per Section 13.1 is Spherity Inc., (b) by the laws of Dortmund, Germany, if the legal entity as per Section 13.1 is Spherity GmbH, including without limitation applicable federal law, without reference to: (a) any conflicts of law principle that would apply the substantive laws of another jurisdiction to the Parties’ rights or duties; (b) the 1980 United Nations Convention on Contracts for the International Sale of Goods; or (c) other international laws. The Parties consent to the personal and exclusive jurisdiction of the federal and state courts of (a) the State of Delaware, USA, or (b) Dortmund, Germany, respectively. This Section 15.10 governs all claims arising out of or related to this Agreement, including without limitation tort claims.

15.11 Attorneys’ Fees and Costs. The prevailing Party in any action to enforce this Agreement shall be entitled to recover its reasonable attorneys’ fees and costs in connection with such action.

15.12 Conflicts. In the event of any conflict between this Agreement and any of Spherity’s online policies, the provisions of this Agreement shall take precedence. However, in the event of a conflict regarding the processing of Personal Data, the provisions of the DPA shall take precedence over this Agreement.

15.13 Construction. The Parties agree that the terms of this Agreement will not be construed in favor of or against either Party by reason of authorship.

15.14 Technology Export. Customer shall not: (a) permit any third party to access or use the System in violation of any law or regulation enforced in the jurisdiction of Customer's Primary Access Location; or (b) export any software provided by Spherity or otherwise remove it from the jurisdiction of Customer's Primary Access Location except in compliance with all applicable laws and regulations enforced in the jurisdiction of Customer's Primary Access Location. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the System in, or export such software to, a country or other destination subject to an embargo enforced by the jurisdiction of Customer's Primary Access Location.

15.15 Entire Agreement. In the absence of a separately negotiated valid and, in its subject matter and scope, substantially equivalent agreement signed by both Parties, this Agreement sets forth the entire agreement of the Parties and supersedes all other prior or contemporaneous writings, negotiations, and discussions with respect to its subject matter. Any amendments or additions to this Agreement must be made in writing, unless otherwise expressly agreed. There are no oral side agreements. Each party confirms that, in entering into this Agreement, it did not rely on any representations or statements outside the scope of this Agreement; mandatory statutory rights, in particular those arising from fraudulent misrepresentation, remain unaffected.

Schedule A: Acceptable Use Policy

Customer shall comply with the AUP. Customer shall not (and shall not allow any third party to):

Rent, lease, copy, provide access to or sublicense any part of the System to a third party;
Use the System to provide or incorporate the System into any product or service provided to a third party;
Reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code or non-public APIs to the System (although the foregoing restrictions on reverse engineering and decompilation shall not apply if and to the extent prohibited by applicable law - and then only upon advance notice to Spherity);
Modify the System or create any derivative product from any of the foregoing;
Remove or obscure any proprietary or other notices contained in the System (including any reports or data printed from the System); or
Publicly disseminate information regarding the performance of the System.

All of the foregoing restrictions shall also apply to the Documentation and to any software provided by Spherity. In the event that it suspects any breach of the requirements of the Agreement, including without limitation by Users, Spherity may suspend Customer’s access to the System without advanced notice, in addition to such other remedies as Spherity may have.

Neither the Agreement nor this AUP requires that Spherity take any action against Customer or any User or other third party for violating the AUP or the Agreement, but Spherity is free to take any such action it sees fit.

Schedule B: Service Level and Support Terms

This document states the Service Level and Support Terms in relation to Spherity’s Offer and constitutes a Service Level Agreement (henceforth "SLA"). It is a supplement to the General Terms & Conditions and, hence, comes into effect at the same time. This SLA incorporates both General Service Level and Support Terms—which apply to all System provisions in production—and Specific Service Level and Support Terms, which apply only to production environments when expressly designated in the relevant Order. “Production” here means the status of the System when it is being used by Customer for its actual business operations with live data, excluding any sandbox, testing, development, or staging environments used for configuration, evaluation, or trial purposes.

General Service Level and Support Terms

A. AVAILABILITY

During the Subscription Period of the System, the System is subject to the Target Availability set forth below:

1. Target System Availability. Spherity will make the System available for at least the percentage of time in each calendar month set forth in the table below (“Target System Availability”), subject to the Exclusions set forth below. “Available” means the System is substantially operable for the purposes for which it is provided. “Total Downtime” means any time when the System is not available.

General Service Level and Support Terms Table

2. Measurement. System Availability is measured per System and per calendar month as follows:

Calendar Month Minutes (“CMM”) = Number of minutes in the respective calendar month.

System Availability = 1 – Weighted Total Downtime in Minutes / CMM × 100

Weighted Total Downtime = Σ Downtime in Minutes × Weight Factor

The Weight Factor is derived from the definition of severity in Section E of this SLA. Concurrent incidents are not counted twice; for overlapping periods, the highest Weight Factor applies.

Planned Downtime = Agreed Downtime + Scheduled Downtime (each as defined in the Glossary). Planned Downtime is deducted when calculating the Weighted Total Downtime.

3. Exclusions. Downtime does not affect the achievement of the Target System Availability if it is attributable to any of the following causes (“Exclusions”):

(a) Scheduled Downtime within a Maintenance Window in accordance with a schedule published by Spherity;

(b) Agreed Downtime (mutually agreed);

(c) Emergency Maintenance, to the extent necessary to resolve critical issues, provided that Spherity informs the customer in advance—where possible—or otherwise immediately thereafter;

(d) Circumstances beyond Spherity’s reasonable control, e.g., force majeure, government actions, floods, fires, earthquakes, civil unrest, acts of terrorism, strikes, or labor disputes (excluding labor disputes involving Spherity employees); denial-of-service attacks, failures of third-party systems not affiliated with Spherity or its subcontractors, failures or delays by third-party internet service providers, failures in connectivity with mobile network providers, or issues caused by the Customer’s devices, equipment, or systems.

The terms “Scheduled Downtime” and “Emergency Maintenance” are defined in the Glossary.

B. FORCE MAJEURE

Neither Party shall be liable for any delay in performing or failure to perform its obligations (including any payment obligation) under these Service Level and Support Terms due to any cause outside its control including, without limitation, war, sabotage, compliance with statutory obligation (which renders impossible the provision of the respective service), failure or shortage of power supplies, acts or omissions of government or regulators (which renders impossible the provision of the respective service) or an act of terrorism and national emergencies. Such delay or failure shall not constitute a breach of these Service Level and Support Terms.

C. MONITORING

Spherity monitors the System, in which the System Availability of the software itself is checked on a regular basis.

D. SCOPE OF SUPPORT

Spherity provides application and technical support for the System.

E. SEVERITY LEVEL DEFINITIONS

The table below sets out the severities of errors, the description of the severities and typical examples of the severities.

Spherity - T&C - Severity Level Definitions 2026

F. COMMUNICATION

1. Customer to Spherity

Spherity - T&C - Customer to Spherity - German

2. Spherity to Customer

Customer communicates to Spherity contact details of Authorized Administrators as specified in the General Terms & Conditions. Customer may have up to five (5) named contacts to engage with Spherity customer support.

Aside from the communication channels mentioned in Section ‘Customer to Spherity’, Spherity also offers status pages and email notifications.

The status of the CARO System is available at: https://status.caro.vc.

The status of the VERA System is available at: https://status.vera.spherity.com.

The status of the EIDA System is available at: https://status.eida.spherity.com.

In case of issues, Customer shall check the status pages. In case of a Severity 1 or Severity 2 Incident, Spherity shall update the applicable status pages during the process in order to update Customer about the resolution progress. Spherity shall also communicate any Agreed Downtime or Maintenance Window on the applicable status pages.

In case of Incidents discovered by Spherity, Spherity shall inform Customer within the periods described in the Specific Service Level and Support Terms.

G. GLOSSARY

This Glossary explains technical terms and defines capitalized terms set out in Spherity’s General and Specific Service Level and Support Terms that are not otherwise defined here or in the General Terms & Conditions.

Agreed Downtime: Spherity shall request time windows for maintenance and any other announced downtime that requires mutual agreement. Customer may reject the requested maintenance period for any reasonable business reason but shall work with Spherity in good faith to arrange a mutually agreeable downtime period that does not impact Customer’s business. Any Agreed Downtime will not affect the Target System Availability.

Scheduled Downtime: Downtime during a Maintenance Window for maintenance purposes on a schedule posted by Spherity (which shall typically be during the periods of lowest anticipated usage).

Incident: Any event which is not part of the standard operation of a service and which causes, or may cause, an interruption to, or a reduction in, the quality of that service.

Maintenance Window: When Spherity requires maintenance time outside of any Agreed Downtime, this has to be communicated in written form at least five (5) working days in advance to Customer. In case of urgent matters, Spherity shall clearly state this on short notice, but as early as possible, to Customer. Maintenance Windows may also comprise schedules of fixed recurring time periods for regular maintenance, which only need to be communicated by Spherity to Customer once and in advance of schedule changes. Any Scheduled Downtime to the System within the Maintenance Window will not affect the Target System Availability.

Emergency Maintenance: Maintenance required to remedy critical matters arising due to matters beyond Spherity’s reasonable control.

Production Systems: Production Systems are live services with immediate user interaction. Staging services, test environments and the like are not defined as Production Systems

Response Time: Time between reporting an Incident by Customer and the resulting reaction by Spherity.

Service Time: Time during which the System has to be operable.

Time To Resolution (TTR): The time between the reporting of the Incident by Customer to Spherity or its detection by Spherity, respectively, and the time to resolve the Incident or the implementation of a Work-Around or the communication of an action plan, respectively, to provide a restored System.

Work-Around: Method of reducing or eliminating the impact of an Incident or other issue for which full resolution is not yet available.

Working Day: Monday to Friday excluding national holidays applicable to the legal entity designated in Section 13.1.

Specific Service Level and Support Terms

All of the General Service Level and Support Terms above apply to any of the following Specific Service Level and Support Terms, which are each an extension of the General Service Level and Support Terms and apply to Spherity’s Service as stated in the specific Order.

Service Terms Extension - Basic

A. SUPPORT LEVELS AND RESPONSE TIMES

Any Incidents occurring during usage will be classed and treated at Severity 3 as defined in the General Service Level and Support Terms. Refer to Service Terms Extension - Premium for information on Severity 3 Incident handling. Support is provided in English and German.

Service Terms Extension - Premium

A. SERVICE CREDITS

1. Remedy for Failure to Meet Target System Availability. If Spherity fails to meet Target System Availability in any calendar month, as Customer’s sole and exclusive remedy, Customer may request a service credit within thirty (30) days of the failure (“Service Credit”). For each valid Service Credit request, Spherity will credit Customer’s account with an amount equivalent to one day’s current monthly Subscription Fee for each one percent (1%) or any portion thereof by which Spherity failed to meet Target System Availability in the applicable calendar month. Service Credits will be capped at a maximum of one-half (50%) of total monthly Subscription Fee for the applicable System. Service Credits will be applied to the Subscription Fee charged for the next Subscription Period. If the Agreement is terminated, or otherwise does not renew, such Service Credits will be paid out to Customer within ninety (90) days from the date of termination/non-renewal provided that there are no outstanding, due and payable claims by Spherity against Customer.

Service Credits will be calculated using the following formula:

Daily Fee = Monthly Subscription Fee ÷ Number of calendar days in the relevant calendar month

Deviation in percentage points (“Δpp”) = Target System Availability - System Availability

Service Credit = Daily Fee × (Δpp)

System Availability is defined in Section A (Availability) of the General Service Level and Support Terms.

B. SUPPORT LEVELS AND RESPONSE TIMES

This Section defines the support level and the Incident handling of the System. The following tables apply only to Production Systems. All times are in reference to the applicable time zone of the responsible legal entity as per Section 13.1 in the General Terms & Conditions. Support is provided in English or German.

1. Time Zones

2. Support Levels

3. Incidents