Effective Date: June 5th, 2026
Last Updated Date: June 5th, 2026
IMPORTANT - PLEASE READ THE TERMS OF THIS EXAMEN LICENSE ANDSERVICES AGREEMENT (THE “AGREEMENT”) CAREFULLY. THIS AGREEMENT IS ABINDING, CONTRACTUAL AGREEMENT BETWEEN YOU AND EXAMEN, INC. (“EXAMEN”) ANDAPPLIES TO YOUR USE OF EXAMEN’S SOFTWARE AND SERVICES (INCLUDING ANY API-BASEDOR CLOUD-HOSTED COMPONENTS) (COLLECTIVELY, THE “SOFTWARE”). THEINDIVIDUAL ACCEPTING THIS AGREEMENT ON BEHALF OF AN ENTITY REPRESENTS THAT HEOR SHE HAS AUTHORITY TO REPRESENT THE ENTITY AND CREATE A LEGALLY BINDINGCONTRACT. IF YOU DO NOT AGREE TO THIS AGREEMENT OR HAVE SUCH AUTHORITY, YOU MAYNOT USE THE SOFTWARE OR SERVICES.
THIS AGREEMENT, AND YOUR USE OF THE EXAMEN SOFTWARE ANDSERVICES, ARE ALSO SUBJECT TO THE EXAMEN TERMS AND CONDITIONS AND PRIVACYPOLICY (AS MAY BE UPDATED FROM TIME TO TIME) AVAILABLE, IN EACH CASE, ON THEEXAMEN WEBSITE. BY ACCEPTING THE TERMS OF THIS AGREEMENT, YOU ALSO ACKNOWLEDGEAND AGREE THAT YOU ACCEPT AND AGREE TO BE BOUND BY THE EXAMEN TERMS ANDCONDITIONS AND PRIVACY POLICY. IN THE EVENT OF A CONFLICT BETWEEN THISAGREEMENT AND THE EXAMEN TERMS AND CONDITIONS, UNLESS OTHERWISE SPECIFIED HEREIN,THIS AGREEMENT SHALL CONTROL.
BY CLICKING THE BUTTON BELOW LABELED “YES, I AGREE,” BYINSTALLING OR USING THE SOFTWARE, YOU ARE INDICATING YOUR ACCEPTANCE ANDAGREEING TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY ACCEPTING THEAGREEMENT AS DESCRIBED ABOVE, YOU (1) ACKNOWLEDGE THAT YOU HAVE READ,UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT; (2) REPRESENT THAT YOU AREOF LEGAL AGE TO FORM A BINDING CONTRACT; AND (3) REPRESENT THAT YOU HAVE THEAUTHORITY TO ENTER INTO THIS AGREEMENT. IF YOU ARE AGREEING ON BEHALF OF AN ENTITY,YOU REPRESENT THAT YOU HAVE AUTHORITY TO AGREE ON THE ENTITY’S BEHALF. IF YOUDO NOT AGREE TO ALL TERMS AND CONDITIONS OF THIS AGREEMENT, OR IF YOU DO NOTHAVE SUCH AUTHORITY, YOU MUST NOT ACCEPT THIS AGREEMENT OR ACCESS, USE ORINSTALL THE SOFTWARE. YOUR USE OF THE SERVICES MAY CAUSE AUTOMATED OUTBOUND ORINBOUND TELEPHONE CALLS, TEXT MESSAGES OR EMAILS; BY ACCEPTING YOU ACKNOWLEDGETHAT SUCH COMMUNICATIONS ARE INITIATED, CONFIGURED, AND CONTROLLED BY YOU.
Subject to your compliance with this Agreement, Examengrants you a limited, non-exclusive, non-transferable, non-sublicensablelicense to access and use the Services (including APIs, dashboards anddownloadable tools) solely for your internal business purposes in accordancewith this Agreement and all Documentation.
PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY, ASTHEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATIONREGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TOARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVEAGAINST EXAMEN TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLYBE PERMITTED TO PURSUE CLAIMS AGAINST EXAMEN ON AN INDIVIDUAL BASIS, NOT AS APLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING,(2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE,AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TOHAVE ANY CLAIMS YOU HAVE AGAINST EXAMEN RESOLVED BY A JURY OR IN A COURT OFLAW.
Examen’s goal is to provide helpful and accurate informationthrough the Software, but Examen makes no endorsement, representation orwarranty of any kind about any information displayed therein. Examen is notresponsible for the accuracy, reliability, effectiveness, or correct use ofinformation you receive through the Software. If you rely on any suchinformation, you do so solely at your own risk.
1. Software.
1.1. License & Access. Subject to yourcompliance with this Agreement, Examen grants you a limited, non-exclusive,non-transferable, non-sublicensable, license to access and use the Services(including APIs, dashboards and downloadable tools) solely for Your internalbusiness purposes in accordance with this Agreement and all Documentation.
1.2. Open-Source Software. Certain softwarecode incorporated into or distributed with the Software may be licensed bythird parties under various “open-source” or “public-source” software licenses(such as the Apache License) (collectively, the “Open Source Software”). Notwithstandinganything to the contrary in this Agreement, the Open Source Software is notlicensed under Section 1.1 and instead is separately licensed pursuant to theterms and conditions of their respective open-source software licenses. Youagree to comply with the terms and conditions of such open-source softwarelicense agreements.
1.3. Data. In addition to the datadisplayed through the Software, the Software may, from time to time,automatically report back information to Examen’s servers related to usage ofthe Software, without notice to you (“Usage Data”). Usage Data may be used byExamen in compliance with all applicable laws, including helping diagnose andresolve technical and performance issues in relation to the Software. By usingthe Software, you hereby consent to such collection, transmission, and use ofdata and agree to obtain all necessary consents from any authorized user forsuch contemplated usage. Examen may process and store call audio, SMS, emailcontent, transcripts, documents, and other Customer Data to provide/improve theServices.
1.4. Ownership. You agree that Examen and itssuppliers own all right, title, and interest in the Software. You will notremove, alter, or obscure any copyright, trademark, service mark or otherproprietary rights notices incorporated in or accompanying the Software. Otherthan the limited license set forth in Section 1.1 above, no right is granted toyou herein. Third-party components included in the Software are subject to theapplicable third-party terms and conditions.
1.5. Feedback. You agree that submission of anyideas, suggestions, documents, and/or proposals to Examen through its coaching,feedback, evals, or similar pages (“Feedback”) is at your own risk and thatExamen has no obligations (including without limitation obligations ofconfidentiality) with respect to such Feedback. You represent and warrant thatyou have all rights necessary to submit the Feedback. You hereby grant toExamen a fully paid, royalty-free, perpetual, irrevocable, worldwide,non-exclusive, and fully sublicensable right and license to use, reproduce,perform, display, distribute, adapt, modify, re-format, create derivative worksof, and otherwise commercially or non-commercially exploit in any manner, anyand all Feedback, and to sublicense the foregoing rights, in connection withthe operation and maintenance of the Software.
1.6. Customer Data. As between the parties,Customer retains all right, title, and interest in and to (a) Input submittedto or through the Software and (b) any other data or materials provided by oron behalf of Customer in connection with the Services (collectively, “CustomerData”). Customer grants Examen a limited, non-exclusive, royalty-free licenseto access, host, copy, transmit, display, and process Customer Data solely asnecessary to provide, operate, and support the Services in accordance with thisAgreement. Examen claims no ownership of Customer Data and acquires no rightsin Customer Data other than the license expressly granted in this Section.
1.7. No Training. Examen will not useCustomer Data to train, fine-tune, or otherwise improve any Examen artificialintelligence or machine learning model, except as Customer expressly authorizesin writing.
1.8. Retention and Deletion. During theTerm, Examen will retain Customer Data for as long as necessary to provide theServices. Following expiration or termination of this Agreement, Examen willretain Customer Data for the thirty (30) day retrieval period set forth inSection 9.2, after which Examen will use commercially reasonable efforts todelete Customer Data from active production systems within ninety (90) days,subject to (a) retention required by applicable law and (b) routine backups,which will be deleted in the ordinary course of backup rotation. At any timeduring or after the Term, Customer may request deletion of specific CustomerData by written notice to support@examen.ai, and Examen will use commerciallyreasonable efforts to delete the requested data within ninety (90) days ofreceipt, subject to the same exceptions.
2. Use of the Software.
2.1. Certain Restrictions. As a condition ofuse, you agree not to use the Software for any purpose that is prohibited bythe Agreement or by applicable law. You shall not (and shall not permit anythird party): (a) license, sell, rent, lease, transfer, assign, reproduce,distribute, host or otherwise commercially exploit the Software, (b) copy theSoftware onto any public or distributed network, except for an internal andsecure cloud computing environment; (c) modify, translate, adapt, merge, makederivative works of, disassemble, decompile, reverse compile or reverseengineer any part of the Software except to the extent the foregoingrestrictions are expressly prohibited by applicable law; (d) interfere with orattempt to interfere with the proper functioning of the Software; (e) attemptto engage in or engage in, any potentially harmful acts that are directedagainst the Software or Examen, including but not limited to violating orattempting to violate any security features of the Software; (f) access theSoftware in order to build a similar or competitive website, software orservice; (g) use any Software in violation of any applicable laws andregulations (including but not limited to any export laws, restrictions,national security controls and regulations) or outside of the license scope setforth herein; (h) attempt to prompt inject or jailbreak the Software or any ofExamen’s products, for any purpose; or (i) use data collected or produced byExamen to train or use as inputs in any models for any purpose. Any futurerelease, update or other addition to the Software shall be subject to thisAgreement. Examen, its suppliers and service providers reserve all rights notgranted in this Agreement. Any unauthorized use of the Software shall permitExamen to terminate the licenses granted pursuant to this Agreement.
2.2. Generative AI.
2.2.1. Generated Output. Certain featuresof the Software permit you to provide documents, records, reports, prompts,scripts, queries or other input (collectively, “Input”) to the Software inorder to receive output generated and returned by the Software based on suchInput (“Output”). The Software is not intended to be used, and you agree not touse the Software to generate any Output, for: (a) any illegal activity; (b)child sexual abuse material or any content that exploits or harms children; (c)generation of hateful, harassing, or violent content; (d) generation of virusesor malware; (e) any activity that has high risk of physical harm; (f) anyactivity that has high risk of economic harm; (g) fraudulent or deceptiveactivity; (h) adult content, adult industries or dating apps; (i) politicalcampaigning or lobbying; (j) activity that violates people’s privacy; (k)unauthorized practice of law or offering tailored legal advice without aqualified person’s review; (l) diagnosing a certain health condition, orproviding treatment instructions; providing diagnostic or treatment servicesfor serious medical conditions; (m) triaging or managing life-threateningissues that need immediate attention; or (n) high risk decision making. Inaddition, you will comply with any third party terms, guidelines, policies orthe like to which we link in connection with your generation of Output.
2.2.2. Similarity of Output. Due to theautomated content generation, Output may not be unique across users and theSoftware may generate the same or similar output for you, Examen or a thirdparty. Other users may also provide similar Input and receive the same orsimilar Output. Responses that are requested by and generated for other usersare not considered your Output. You hereby irrevocably release, acquit andforever discharge, and agree not to sue, Examen and its parents, subsidiaries,affiliates, officers, employees, agents, partners, and licensors (collectively,“Examen Parties”) with respect to any liability for direct or indirectcopyright, trademark or other infringement, misappropriation or violation ofany rights with respect to the Output.
2.2.3. Accuracy. Use of the Software may insome situations result in incorrect Output that does not accurately reflectreal people, places or facts. You agree to evaluate and be responsible for theaccuracy of any Output as appropriate for your use case.
2.2.4. Limitations of AI-Generated Output. Youacknowledge and agree that, in addition to the limitations and restrictions setforth in this Agreement, there are numerous limitations that apply with respectto artificial intelligence (AI)-generated Output due to the fact that it isautomatically generated, including that (a) it may contain errors or misleadinginformation, (b) AI systems can lack the ability to think creatively and comeup with new ideas and can result in repetitive or formulaic content, (c) AIsystems can struggle with understanding the nuances of language, includingslang, idioms, and cultural references, which can result in Output that is outof context or does not make sense, (d) AI systems do not have emotions andcannot understand or convey emotions in the way humans can, which can result inOutput that lacks the empathy and emotion that humans are able to convey, (e)AI systems can perpetuate biases that are present in the data used to trainthem, which can result in Output that is discriminatory or offensive, (f) AIsystems can struggle with complex tasks that require reasoning, judgment anddecision-making, (g) AI systems require large amounts of data to train andgenerate content, and the data used to train AI systems may be of poor qualityor biased, which will negatively impact the accuracy and quality of thegenerated Output, and (h) AI-generated Output can lack the personal touch thatcomes with content created by humans, which can make it seem cold andimpersonal.
2.2.5. Disclaimers Regarding the use of GenerativeAI; Not Professional Advice. Under no circumstances will Examen be liablein any way for any Output, including, but not limited to, for any errors oromissions in any content, or for any loss or damage of any kind incurred as aresult of the use of any Output. You agree that you must evaluate, and bear allrisks associated with, the use of any content, including any reliance on theaccuracy, completeness, or usefulness of such Output. Examen is not in the businessof providing legal or other professional services or advice. Consult theservices of a competent professional when you need this type of assistance.
2.3. Third Party Services. Examen, via theSoftware or otherwise, may provide, or third parties may provide, links orother access to other sites and resources on the Internet. Examen has nocontrol over such sites and resources and Examen is not responsible for anddoes not endorse such sites and resources. You further acknowledge and agreethat Examen will not be responsible or liable, directly or indirectly, for anydamage or loss caused or alleged to be caused by or in connection with use ofor reliance on any content, events, goods or services available on or throughany such site or resource. Any dealings you have with third parties found whileusing the Software are between you and the third party, and you agree thatExamen is not liable for any loss or claim that you may have against any suchthird party.
3. Registration.
3.1. Accounts. In order to download and/or usethe Software, you may be required to register an account with Examen. Youacknowledge and agree that you are bound by the terms and conditions of thisAgreement with respect to such account and your access to any other servicesmade available by Examen. You agree to provide and maintain true, accurate,current and complete information about yourself as prompted by the Examenaccount registration form. You are responsible for use of the Software by anyand all employees, contractors, or other users that it allows to access theSoftware. Registration data and certain other information about you aregoverned by our Privacy Policy. You are responsible for (and Examen disclaimsall liability arising from) any content or communications sent through youraccount, including those initiated automatically by the Services.
3.2. Necessary Equipment. You must provideall equipment and software necessary to connect to the Software, including butnot limited to, a computer that is suitable to use the Software. You are solelyresponsible for any fees, including Internet connection or mobile fees, thatyou incur when accessing or using the Software.
4. Services and Support.
4.1. In accordance with the terms of this Agreement, Examenwill provide you with the services contemplated herein and under any Order Form(collectively, the “Services”). In furtherance of the foregoing, Examenhereby grants Customer a limited, revocable, non-exclusive, non-transferablelicense to the Software during the Term.
4.2. In accordance with the terms of this Agreement, duringthe Term, Examen will provide you, at no additional charge, with ongoingreasonable technical support services to address any uptime, software, andother performance issues, questions, or concerns related to the Software andgeneral continuous development and enhancement of the Examen Software (the“Support Services”). You acknowledge that Examen will, in its good faithdiscretion, determine the scope of the Support Services.
4.3. During the Term, Examen will provide you with, at noadditional charge, all improvements, modifications and updates (collectively,“Updates”), each of which are a part of the Software and are subject to theterms and conditions of this Agreement. You acknowledge that Examen may requireyou to obtain and use the most recent version of the API to the extent theSoftware is being provided to you via an API call. Updates may adversely affecthow the Software communicates with the Services.
4.4. Examen hereby agrees, and shall ensure that allemployees and personnel of Examen under its direct control and supervisionagree, to: (a) complete diligently the Services; (b) comply with thisAgreement, the applicable Order Form, standard operating procedures, applicablelaws, and industry standards with respect to the performance of the Services;(c) obtain all necessary authorizations, approvals and licenses for theperformance of the Services, including the transport, handling, research,processing, and disposal of Customer Materials, in compliance with ApplicableLaws; and (d) use commercially reasonable efforts to complete its obligationsunder each Order Form in the timeframe specified in the Order Form.
4.5 Fair Use; Excess Consumption. The Fees set forth in the Order Form arebased on expected usage volumes, including reasonable consumption ofcomputational resources, API calls, and AI model tokens (collectively,"Usage Resources"), consistent with Customer's described use case andthe number of authorized users or seats specified in the Order Form. Examenmonitors Usage Resources and may establish reasonable usage thresholdscorresponding to each subscription tier, Order Form, or authorized user count.If Customer's consumption of Usage Resources materially exceeds (a) suchthresholds, (b) levels reasonably expected given the number of authorized usersunder the Order Form, or (c) patterns consistent with ordinary business use(including, without limitation, automated scripts, looping or runawayprocesses, bulk extraction, shared credentials or access by individuals beyondthe authorized user count, or use that degrades Service performance for othercustomers), Examen may, upon reasonable notice to Customer (email sufficing):(i) engage Customer in good faith to right-size the Order Form, increase theauthorized user count, or agree on overage fees; (ii) throttle, rate-limit, ortemporarily suspend specific features, skills, or accounts contributing to theexcess consumption; and/or (iii) if Customer does not cure the excessconsumption or agree to revised commercial terms within fifteen (15) days ofsuch notice, suspend the affected Services until resolution. Examen will usecommercially reasonable efforts to minimize disruption to Customer's ordinarybusiness operations and will not invoke this Section in bad faith. Suspensionunder this Section does not relieve Customer of its payment obligations forServices rendered prior to suspension, and the Term shall not be tolled duringany such suspension except by mutual written agreement.
4.6. Security. Examen will use commerciallyreasonable efforts to maintain administrative, technical, and physicalsafeguards designed to protect Customer Data against unauthorized access, use,alteration, or disclosure. These efforts include using industry-standard methodsto encrypt Customer Data in transit and at rest, limiting access to CustomerData to Examen personnel with a legitimate need to access such data to providethe Services, and maintaining industry-standard operational practices. Theforegoing does not constitute a warranty, representation, or guarantee ofsecurity, and the disclaimers set forth in Section 7 apply.
4.7. Notification of Security Incidents. IfExamen confirms a security incident materially affecting Customer Data, Examenwill use commercially reasonable efforts to notify Customer without unduedelay, subject to any restrictions imposed by applicable law or lawenforcement. Examen's notification will include such information about theincident as is reasonably available at the time of notification. The partieswill cooperate in reasonable good faith with respect to any relatedinvestigation or remediation. The foregoing does not constitute a warranty orrepresentation, and the disclaimers set forth in Section 7 apply.
5. Fees.
5.1. General. You will pay Examen theagreed upon fees described in the Order Form for the Services in accordancewith the terms therein and hereof (the “Fees”). If you believe thatExamen has billed you incorrectly, you must contact Examen no later than sixty(60) days after the closing date on the first billing statement in which theerror or problem appeared, in order to receive an adjustment or credit. Inquiriesshould be directed to Examen’s customer support department.
5.2. Late Fees. Examen may choose to billthrough an invoice, in which case, full payment for undisputed invoices issuedin any given month must be received by Examen thirty (30) days after themailing date of the invoice. Examen will provide notice to you if you have anunpaid balance after such thirty (30) day period as described in the precedingsentence, warning you that failure to pay the balance shall be deemed amaterial breach of the Agreement (“Payment Notice”), after which you shall havefifteen (15) days from the date such Payment Notice is received to (a) satisfythe undisputed amounts set forth in the invoice or (b) provide Examen withnotice of its objection to the invoiced amounts. Unpaid and undisputed amountsare subject to a finance charge of 1.5% per month on any outstanding balance,or the maximum permitted by law, whichever is lower, plus all reasonableexpenses of collection and may result in immediate termination of Service. Youshall be responsible for all taxes associated with Services other than U.S.taxes based on Examen’s net income.
6. Indemnification.
To the extent permitted under applicable law, you agree toindemnify and hold the Examen Parties harmless from any losses, costs,liabilities and expenses (including reasonable attorneys’ fees) relating to orarising out of: (a) any data you submit to or through the Software; (b) youruse of, or inability to use, the Software; (c) your violation of thisAgreement; (d) your violation of any rights of another party; or (e) yourviolation of any applicable laws, rules or regulations. Examen reserves the right,at its own cost, to assume the exclusive defense and control of any matterotherwise subject to indemnification by you, in which event you will fullycooperate with Examen in asserting any available defenses. You may not settleor compromise any claim against the Examen Parties without Examen’s writtenconsent. You agree that the provisions in this Section will survive anytermination of this Agreement.
7. Disclaimer of Warranties.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENTPERMITTED BY APPLICABLE LAW, YOUR USE OF THE SOFTWARE IS AT YOUR SOLE RISK, ANDTHE SOFTWARE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALLFAULTS. THE EXAMEN PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS,AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOTLIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESSFOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE EXAMEN PARTIES MAKE NOWARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE SOFTWARE WILL MEET YOURREQUIREMENTS; (2) THE SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE ORERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SOFTWARE WILLBE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.THE EXAMEN PARTIES ASSUME NO RESPONSIBILITY FOR THE TIMELINESS, DELETION,MIS-DELIVERY, OR FAILURE TO STORE ANY DATA THROUGH THE SOFTWARE. EXAMEN DOESNOT MONITOR LEGALITY OF YOUR COMMUNICATIONS AND IS NOT LIABLE FOR FINES ORPENALTIES INCURRED BY YOU.
EXAMEN IS NOT A LICENSED CONTRACTOR, REAL ESTATEPROFESSIONAL, NOR LEGAL REPRESENTATIVE AND HAS NO AUTHORITY TO, AND CANNOT ANDSHALL NOT ATTEMPT TO, DIRECTLY OR INDIRECTLY, CONTROL, DIRECT OR INTERFERE WITHTHE PROFESSIONAL SERVICES CONDUCTED BY YOU FOR AND ON BEHALF OF YOUR TENANTS,LICENSEES, CONTRACTORS, VENDORS, SUPPLIERS, PERSONNEL OR OTHER PERSONS. THEEXAMEN SERVICES AND SOFTWARE ARE NOT INTENDED TO, AND DO NOT ACT AS ASUBSTITUTE FOR LICENSED, COMPETENT, PROPERLY TRAINED AND KNOWLEDGEABLE REAL ESTATEPROFESSIONALS, AND ARE NOT TO BE USED IN LIEU OF CONSULTING WITH LICENSED,KNOWLEDGEABLE, AND COMPETENT REAL ESTATE PROFESSIONALS. YOUR RELIANCE ON ANYINFORMATION PROVIDED BY EXAMEN IS SOLELY AT YOUR OWN RISK.
IN CONNECTION WITH THE SERVICES, EXAMEN MAY PROVIDE PERIODICRECOMMENDATIONS TO YOU FOR (I) PROPOSED PROFESSIONAL SERVICES AND/OR (II)CONTRACTORS TO PERFORM PROFESSIONAL SERVICES. ANY SUCH RECOMMENDATIONS AREPROVIDED IN GOOD FAITH BY EXAMEN BASED ON THE THEN-AVAILABLE INFORMATIONAVAILABLE TO EXAMEN. IN MAKING DECISIONS ON WHETHER OR NOT TO CONTRACT FORPROFESSIONAL SERVICES WITH CONTRACTORS, YOU MUST RELY ON YOUR OWN EXAMINATIONOF THE RECOMMENDED WORK TO BE PERFORMED AND INDEPENDENT INVESTIGATION OF ANYKNOWN OR LATENT ISSUES THAT MAY IMPACT THE SIZE, SCOPE, COST, OR NEED TOCONDUCT THE RECOMMENDED PROFESSIONAL SERVICES ON CUSTOMER’S PROPERTY ORPROPERTIES. EXAMEN CANNOT, AND WILL NOT, INDEPENDENTLY VERIFY THE PROFESSIONALSERVICES TO BE PERFORMED, THE COST OF ANY SAID PROFESSIONAL SERVICES, AND THEVERACITY OF ANY CONTRACTORS HOLDING THEMSELVES OUT AS HAVING THE SKILL, CARE,AND COMPETENCY TO PERFORM THE PROFESSIONAL SERVICES. AS SUCH, YOU EXPRESSLYACKNOWLEDGE AND AGREE THAT EXAMEN WILL HAVE NO LIABILITY FOR ANY INACCURACY ORINADEQUACY OF THE RECOMMENDATIONS PROVIDED TO CUSTOMER AND THE INFORMATIONPROVIDED BY, TO, OR FROM EXAMEN.
8. Limitation of Liability.
8.1. DISCLAIMER OF CERTAIN DAMAGES. YOU UNDERSTAND AND AGREETHAT IN NO EVENT SHALL EXAMEN PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL,SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTIONWITH THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES RESULTING FROMLOSS OF USE, DATA, OR PROFITS, WHETHER OR NOT EXAMEN HAS BEEN ADVISED OF THEPOSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURYOR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ONANY THEORY OF LIABILITY, RESULTING FROM: (1) THE USE OR INABILITY TO USE THESOFTWARE; (2) DATA YOU SUBMIT THROUGH THE SOFTWARE; (3) UNAUTHORIZED ACCESS TOOR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (4) ANY OTHER MATTER RELATED TOTHE SOFTWARE.
8.2. CAP ON LIABILITY. UNDER NO CIRCUMSTANCES WILL THEEXAMEN PARTIES BE LIABLE TO YOU IN THE AGGREGATE FOR MORE THAN THE AMOUNT YOUHAVE PAID EXAMEN IN THE LAST SIX (6) MONTHS.
8.3. BASIS OF THE BARGAIN. THE LIMITATIONS OFDAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAINBETWEEN EXAMEN AND YOU.
8.4. EXCLUSIONS. SOME JURISDICTIONS DO NOT ALLOWTHE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OREXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY,SOME OF THE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLEWITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE ORWITH THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OFTHE SOFTWARE. IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “INDEMNIFICATION”,“DISCLAIMER OF WARRANTIES,” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BEONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANYPORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OFNEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THEREMAINING PORTIONS OF THE APPLICABLE SECTIONS.
9. Term and Termination.
9.1. Term. Subject to earlier termination asprovided in this Section 9, this Agreement is for the Initial Service Term asspecified in the Order Form and shall be automatically renewed for additionalperiods of the same duration as the Initial Service Term (collectively, the“Term”), unless either party requests termination at least sixty (60) daysprior to the end of the then-current term.
9.2. Termination. In addition to any otherremedies it may have, either party may also terminate this Agreement uponthirty (30) days’ notice (or without notice in the case of nonpayment), if theother party materially breaches any of the terms or conditions of this Agreementand fails to cure such alleged breach within the notice period. You will pay infull for the Services up to and including the last day on which the Servicesare provided. Upon any termination other than nonpayment, Examen will make CustomerData available to Customer for electronic retrieval for a period of thirty (30)days after the effective date of termination. Thereafter, Examen will usecommercially reasonable efforts to delete stored Customer Data in accordancewith Section 1.8 (Retention and Deletion). You are responsible for offloadingany Input you wish to transition away from the Services, prior to the date ofexpiration or termination of this Agreement.
9.3. Effect of Termination. Examen will not haveany liability whatsoever to you for any suspension or termination. Allprovisions of this Agreement which by their nature should survive, shallsurvive termination of this Agreement, including without limitation, ownershipprovisions, warranty disclaimers, and limitation of liability.
10. Dispute Resolution by Binding Arbitration; Class ActionWaiver.
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOURRIGHTS.
10.1. Agreement to Arbitrate. You agree that anyand all disputes or claims that have arisen or may arise between you andExamen, whether arising out of or relating to this Agreement (including anyalleged breach thereof), the Software, any advertising, any aspect of therelationship or transactions between us, shall be resolved exclusively throughfinal and binding arbitration, rather than a court, in accordance with theterms of this Section. Arbitration will be conducted by a neutral arbitrator inaccordance with the American Arbitration Association’s (“AAA”) rules andprocedures, including the AAA’s Consumer Arbitration Rules (collectively, the“AAA Rules”), as modified by this Arbitration Agreement. For information on theAAA, please visit its website, http://www.adr.org. Information about the AAARules and fees for consumer disputes can be found at the AAA’s consumerarbitration page, http://www.adr.org/consumer_arbitration. If there is anyinconsistency between any term of the AAA Rules and any term of this Section,the applicable terms of this Section will control unless the arbitratordetermines that the application of the inconsistent terms of this Section wouldnot result in a fundamentally fair arbitration. Payment of all filing,administration, and arbitrator fees (collectively, the “Arbitration Fees”) willbe governed by the AAA Rules, unless otherwise provided in this ArbitrationAgreement. To the extent any Arbitration Fees are not specifically allocated toeither Examen or you under the AAA Rules, Examen and you shall split themequally; provided that if you are able to demonstrate to the arbitrator thatyou are economically unable to pay your portion of such Arbitration Fees or ifthe arbitrator otherwise determines for any reason that you should not berequired to pay your portion of any Arbitration Fees, Examen will pay yourportion of such fees. In addition, if you demonstrate to the arbitrator thatthe costs of arbitration will be prohibitive as compared to the costs oflitigation, Examen will pay as much of the Arbitration Fees as the arbitratordeems necessary to prevent the arbitration from being cost-prohibitive. Anypayment of attorneys’ fees will be governed by the AAA Rules. The arbitratormust also follow the provisions of this Agreement as a court would. All issuesare for the arbitrator to decide, including, but not limited to, issuesrelating to the scope, enforceability, and arbitrability of this Section.Although arbitration proceedings are usually simpler and more streamlined thantrials and other judicial proceedings, the arbitrator can award the samedamages and relief on an individual basis that a court can award to anindividual under this Agreement and applicable law. Decisions by the arbitratorare enforceable in court and may be overturned by a court only for very limitedreasons.
10.2. Prohibition of Class and RepresentativeActions and Non-Individualized Relief. YOU AND EXAMEN AGREE THAT EACH OF USMAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS APLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION ORPROCEEDING. UNLESS BOTH YOU AND EXAMEN AGREE OTHERWISE, THE ARBITRATOR MAY NOTCONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOTOTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASSPROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY,INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTYSEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATEDBY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR ANDTHE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THEEXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
11. General Provisions.
11.1. Electronic Communications. Thecommunications between you and Examen use electronic means. For contractualpurposes, you (1) consent to receive communications from Examen in anelectronic form; and (2) agree that all terms and conditions, agreements,notices, disclosures, and other communications that Examen provides to youelectronically satisfy any legal requirement that such communications wouldsatisfy if it were to be in writing. The foregoing does not affect yourstatutory rights.
11.2. Release. You hereby release the ExamenParties and their successors from claims, demands, any and all losses, damages,rights, and actions of any kind, including personal injuries, death, andproperty damage that is either directly or indirectly related to or arises outof the Software or your use thereof. If you are a California resident, youhereby waive California Civil Code Section 1542, which states, “A generalrelease does not extend to claims that the creditor or releasing party does notknow or suspect to exist in his or her favor at the time of executing therelease and that, if known by him or her, would have materially affected his orher settlement with the debtor or released party.”
11.3. Assignment. This Agreement, and yourrights and obligations hereunder, may not be assigned, subcontracted,delegated, or otherwise transferred by you without Examen’s prior writtenconsent, and any attempted assignment, subcontract, delegation, or transfer inviolation of the foregoing will be null and void. Examen may assign or transferthis Agreement, in whole or in part, without restriction.
11.4. Force Majeure. Examen shall not be liablefor any delay or failure to perform resulting from causes outside itsreasonable control, including, but not limited to, acts of God, war, terrorism,riots, embargos, acts of civil or military authorities, fire, floods, accidents,strikes or shortages of transportation facilities, fuel, energy, labor ormaterials.
11.5. Governing Law. This Agreement will begoverned by the laws of the State of California without regard to its conflictof law provisions. With respect to any disputes or claims not subject toarbitration, as set forth above, you and Examen agree to submit to the personaland exclusive jurisdiction of the state and federal courts located within SanFrancisco County, California.
11.6. Limitations Period. YOU AND EXAMEN AGREETHAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT MUSTCOMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCHCAUSE OF ACTION IS PERMANENTLY BARRED.
11.7. Notice. Where Examen requires that youprovide an e-mail address, you are responsible for providing Examen with yourmost current e-mail address. In the event that the last e-mail address youprovided to Examen is not valid, or for any reason is not capable of deliveringto you any notices required or permitted by this Agreement, Examen’s dispatchof the e-mail containing such notice will nonetheless constitute effectivenotice. You may give notice to Examen at support@examen.ai.
11.8. Waiver. Any waiver or failure to enforceany provision of this Agreement on one occasion will not be deemed a waiver ofany other provision or of such provision on any other occasion.
11.9. Severability. If any provision of thisAgreement is, for any reason, held to be invalid or unenforceable, the otherprovisions of this Agreement will remain enforceable, and the invalid orunenforceable provision will be deemed modified so that it is valid and enforceableto the maximum extent permitted by law.
11.10. Export Control. You may not use, export,import, or transfer the Software except as authorized by U.S. law, the laws ofthe jurisdiction in which you obtained the Software, and any other applicablelaws. In particular, but without limitation, the Software may not be exportedor re-exported (a) into any United States embargoed countries; or (b) to anyoneon the U.S. Treasury Department’s list of Specially Designated Nationals or theU.S. Department of Commerce’s Denied Person’s List or Entity List. By using theSoftware, you represent and warrant that (i) you are not located in a countrythat is subject to a U.S. Government embargo, or that has been designated bythe U.S. Government as a “terrorist supporting” country and (ii) you are notlisted on any U.S. Government list of prohibited or restricted parties. Youalso will not use the Software for any purpose prohibited by U.S. law,including the development, design, manufacture or production of missiles,nuclear, chemical or biological weapons. You acknowledge and agree thatproducts, services, or technology provided by Examen are subject to the exportcontrol laws and regulations of the United States. You shall comply with theselaws and regulations and shall not, without prior U.S. governmentauthorization, export, re-export, or transfer Examen products, services ortechnology, either directly or indirectly, to any country in violation of suchlaws and regulations.
11.11. U.S. Government Rights. As defined in 48C.F.R. §2.101, DFAR §252.227-7014(a)(1) and DFAR §252.227-7014(a)(5) orotherwise, Software and all related documentation provided in connection withthis Agreement are “commercial items,” “commercial computer software,” and/or“commercial computer software documentation.” Consistent with DFARS § 227.7202and FAR section 12.212, any use, modification, reproduction, release,performance, display, disclosure or distribution thereof by or for theGovernment shall be governed solely by the terms of this Agreement and shall beprohibited except to the extent expressly permitted by the terms of thisAgreement.
11.12. Entire Agreement. This Agreement isthe final, complete and exclusive agreement of the parties with respect to thesubject matter hereof and supersedes and merges all prior discussions betweenthe parties with respect to such subject matter. You also may be subject to additionalterms and conditions that may apply when you use affiliate or third partyservices, third party content or third party software.
11.13. Privacy. At Examen, we respect theprivacy of our users. For details please see our Privacy Policy. By using theSoftware, you consent to our collection and use of personal data as outlinedtherein.
11.14. Modifications for Regulatory Change. Examenmay modify the Services or this Agreement on notice as reasonably necessary tocomply with changes in law or carrier policies relating to telecommunications,AI or data privacy.
11.15. Publicity. Examen may identify you as anExamen customer, including by using your name and logo, in its marketingmaterials and on its website.
12. Confidentiality.
12.1. Definition. “ConfidentialInformation” means non-public information disclosed by one party (the“Disclosing Party”) to the other (the “Receiving Party”), whether orally, inwriting, or by inspection, that is designated as confidential or thatreasonably should be understood to be confidential given the nature of theinformation and the circumstances of disclosure. Customer Data is Customer'sConfidential Information. Examen's prompts, workflows, skills, templates,system instructions, pricing, and non-public technical and business informationare Examen's Confidential Information.
12.2. Obligations. The Receiving Party will(a) use the same degree of care to protect Confidential Information as it usesto protect its own confidential information of like kind, but in no event lessthan reasonable care; (b) not use Confidential Information for any purposeoutside the scope of this Agreement; and (c) not disclose ConfidentialInformation to any third party except to its employees, contractors, agents,and professional advisors who have a need to know for purposes of thisAgreement and who are bound by confidentiality obligations no less protectivethan those in this Section.
12.3. Exceptions. Confidential Informationdoes not include information that (a) is or becomes publicly available withoutbreach of this Agreement, (b) was known to the Receiving Party prior todisclosure without obligation of confidentiality, (c) is received from a thirdparty without breach of any obligation of confidentiality, or (d) isindependently developed by the Receiving Party without use of or reference tothe Disclosing Party's Confidential Information. The Receiving Party maydisclose Confidential Information to the extent required by law or valid legalprocess, provided that, where legally permitted, it gives the Disclosing Partyreasonable prior notice and cooperates in any effort to seek a protectiveorder.
12.4. Survival. The obligations in thisSection 12 survive termination of this Agreement and continue for five (5)years thereafter, except with respect to trade secrets, which will be protectedfor so long as they remain trade secrets under applicable law.