Terms of Subscription Services

Last updated April 01, 2025

These Terms of Subscription Service ("TOS"), the Subscription Services Agreement ("SSA"), any applicable Order Form (together, the "Subscription Agreement") form a binding agreement between Codelucent Technologies, LLC. and its Affiliates ("Codelucent", "the Company", "we", "us" and/or "our") and the entity identified in the SSA as the subscriber of the Codelucent Services ("Subscriber").

1. Definitions

Affiliates means an entity which: (a) is owned or Controlled by, (b) owns or Controls (any such entity is referred to herein as a "Subsidiary"), or (c) is under common Control with another entity; where "Control" means having more than fifty percent (50%) of the controlled entity's shares or ownership interests representing the right to make decisions for such controlled entity.

Aggregated Data means Subscriber Data that has been deidentified and aggregated with other data such that the resulting data no longer reasonably identifies Subscriber, a specific individual, nor a specific entity. Aggregated Data excludes any Personally Identifiable Information.

2. Subscription Services

2.1 Subscription Services. Codelucent provides the Subscriber with access to fractional CTO services and/or web and mobile app development solutions ("Codelucent Services") as described in any applicable Order Forms with reasonable skill and care. Access and use are permitted for the Subscriber's business purposes only. Access and use for the benefit of any third party is not permitted unless explicitly agreed in the Order Form.

3. Subscriber's Responsibilities

3.1 Project Requirements and Decisions. The Codelucent Services provide strategic technology guidance and development support. Codelucent uses commercially reasonable efforts to deliver these services. However, the Subscriber and its Authorized Users are solely responsible for providing accurate project requirements, timelines, and feedback, as well as making final business and technical decisions based on the services provided.

4. Fees and Payment Terms

4.1 Fees. Promptly after the Activation Date and for each calendar month during the Term, the Subscriber will pay Codelucent a monthly subscription fee as set forth in the Order Form for all Authorized Users having access to the Codelucent Services ("Base Subscription Fee"). Additional fees may apply for specific development projects or deliverables as outlined in the Order Form ("Project Fees" and, together with the Base Subscription Fee, the "Fees"). Fees are due monthly unless otherwise specified in the Order Form.

5. License Grant and Restrictions

5.1 License Grant. Subject to the terms and conditions of this Agreement, Codelucent grants to the Subscriber a non-exclusive, non-transferable, non-sublicensable, revocable, limited license to access and use the Codelucent Services during the Term solely for the Subscriber's internal business purposes.

6. Intellectual Property

6.1 Ownership. The Subscriber acknowledges and agrees that: (a) the Codelucent Services, including any proprietary tools, frameworks, or methodologies, and all Intellectual Property Rights therein are and shall remain the sole and exclusive property of Codelucent and its licensors; (b) custom deliverables (e.g., code, designs) created for the Subscriber become the Subscriber's property upon full payment, as specified in the Order Form; and (c) the Subscriber has no right to receive source code for Codelucent's proprietary tools unless explicitly agreed in writing.

7. Confidentiality

7.1 Confidential Information. Each Party (the "Receiving Party") understands that the other Party (the "Disclosing Party") has disclosed or may disclose business, technical, or financial information relating to the Disclosing Party's business (hereinafter referred to as "Confidential Information" of the Disclosing Party). Confidential Information of Codelucent Technologies, LLC includes non-public information regarding features, functionality, and performance of the Codelucent Services. Confidential Information of the Subscriber includes non-public project details and business data. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except as expressly permitted by this Agreement) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party, or (e) was disclosed in response to a valid order by a court or other governmental body, or (f) was disclosed as part of a sale of substantially all of the assets of the Receiving Party or a merger of the Receiving Party into another entity or any similar transaction. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent such disclosure is required by law or court order, but the Receiving Party will provide the Disclosing Party with prompt notice of such requirement and will cooperate with the Disclosing Party in seeking a protective order or other appropriate remedy. The Receiving Party's obligations of confidentiality hereunder shall survive the termination of this Agreement for a period of five (5) years following such termination (except that, as to any information that is identified as a trade secret under applicable law, each Party's obligations shall survive for so long as such information remains a trade secret).

9. Data Processing

Data processing shall be governed by Codelucent's Data Processing Agreement.

10. Term and Termination

10.1 Term. This Agreement will commence upon the Activation Date and will continue in full force and effect until terminated in accordance with the terms of this Agreement. The Parties may, at any time, mutually agree, in writing, to terminate this Agreement.

11. Warranties

11.1 Mutual. Each Party represents and warrants to the other Party that: (a) it is a corporation, limited liability company, or other business entity duly organized, validly existing, and in good standing in the jurisdiction of its incorporation, organization, or formation; (b) it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required; (c) it has provided, and will provide, all notices to, and has obtained, and will obtain and maintain, all necessary and sufficient rights, consents, approvals, waivers, authorizations, and permissions for it to have the full right, power, and authority to enter into this Agreement and to grant the rights and licenses granted under this Agreement and to perform its obligations under this Agreement; (d) the execution of this Agreement by its representative whose signature is set forth below has been duly authorized by all necessary action of the Party; (e) when executed and delivered by each Party, this Agreement will constitute the legal, valid, and binding obligation of each Party, enforceable against such Party in accordance with the terms and conditions set forth herein.

12. Disclaimer

EXCEPT AS EXPRESSLY SET FORTH HEREIN: (a) EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, DUTIES, AND CONDITIONS, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE; AND (b) THE Codelucent SERVICES, Codelucent TECHNOLOGY, SUBSCRIBER DATA, AND ALL INTELLECTUAL PROPERTY MADE AVAILABLE OR LICENSED BY Codelucent UNDER THIS AGREEMENT ARE PROVIDED "AS IS" AND "WITH ALL FAULTS." Codelucent DOES NOT WARRANT THAT THE Codelucent SERVICES OR TECHNOLOGY WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, AND DOES NOT WARRANT THAT ANY ISSUES WILL BE CORRECTED. NO ADVICE OR INFORMATION OBTAINED BY SUBSCRIBER THROUGH THE Codelucent SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.

13. Limitations of Liability

13.1 Consequential Damages. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT SUCH PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

13.2 Direct Damages. TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER PARTY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT IS LIMITED TO THE AMOUNT OF FEES PAID TO Codelucent IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT FIRST GIVING RISE TO THE LIABILITY.

13.3 Exclusions. The foregoing limitations of liability will not apply to liabilities arising from: (a) a Party's gross negligence, willful misconduct, or fraud; (b) Subscriber's indemnification obligations under this Agreement; or (c) a Party's breach of the confidentiality obligations set forth in Section 7 or (d) a breach of the DPA.

13.4 Essential Purpose. THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION WILL APPLY EVEN IF THIS AGREEMENT OR ANY LIMITED REMEDY SPECIFIED HEREIN IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

14. Indemnification

14.1 By Codelucent. Codelucent will defend or settle any claims, demands, or actions made by a third Party ("Claims") brought against the Subscriber arising from Codelucent's gross negligence, willful misconduct, or fraud in connection with the performance of the Codelucent Services. Codelucent will pay any final judgments or settlements entered into by Codelucent.

14.2 By Subscriber. The Subscriber will defend or settle any Claims brought against Codelucent arising from: (a) Subscriber's gross negligence, willful misconduct, or fraud in connection with its obligations hereunder; (b) any breach of representation or warranty by the Subscriber; or (c) any claim related to Subscriber's use of deliverables outside the scope of this Agreement. The Subscriber will pay any final judgments or settlements entered into by the Subscriber.

14.3 Procedures. Any Claim subject to indemnification will be subject to: (a) prompt written notice by the indemnified Party, provided delay does not relieve obligations unless prejudicial; (b) the indemnifying Party controlling defense and settlement (indemnified Party may participate at its own expense), with no settlement admitting liability without consent; and (c) reasonable cooperation by the indemnified Party at the indemnifying Party's expense.

15. General Terms

15.1 No Partnership, Joint Venture or Franchise. The Subscription Agreement will not be construed as creating a partnership, joint venture, or agency relationship or as granting a franchise.

15.2 Compliance with Laws; Export. The Codelucent Services and Subscriber Data may be subject to U.S. and/or international import, export, and reexport control laws and regulations, and the Subscriber represents and warrants that it will comply with all applicable laws that apply to its performance under this Agreement.

15.3 Governing Law and Jurisdiction. The Subscription Agreement will be interpreted, construed, and enforced in accordance with the local laws of the State of California, without reference to its choice of law rules. Any action arising out of this Agreement will be brought in the state or federal courts in Santa Clara County, California, and each Party consents to the exclusive jurisdiction and venue of these courts.

15.4 Arbitration. Any dispute as to the interpretation, enforcement, breach, or termination of the Subscription Agreement will be settled by binding arbitration in San Francisco, California, under the Rules of the American Arbitration Association by three arbitrators. Judgment upon the award may be entered in any court of competent jurisdiction. The Parties shall keep confidential the existence, content, and result of the arbitration.

15.5 Assignability. The Subscriber may not assign its rights or obligations under this Agreement without Codelucent's prior written consent, except to a successor by merger or acquisition if the assignee agrees in writing to assume all obligations. Codelucent may assign its rights and obligations at any time.

15.6 Construction; Waiver. If any part of this Agreement is found illegal or unenforceable, the remaining portions remain in effect. Any waiver must be in writing. Failure to enforce any provision does not waive it.

15.7 Force Majeure. Codelucent will not be liable for failure or delay in performing obligations due to circumstances beyond its reasonable control, including acts of God, disasters, war, or government actions.

15.8 Notices. Notices must be in writing and sent by certified mail or courier to the address in the Order Form, deemed given two business days after mailing or one day after courier delivery. Email notice is sufficient for TOS changes.

15.9 Entire Agreement. This Agreement constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes all prior agreements or understandings.

15.10 Severability. If any provision is found invalid or unenforceable, it will not affect other provisions, and the Parties will negotiate in good faith to modify the Agreement to reflect the original intent.