Terms of Service

These Terms of Service ("Terms") govern access to and use of the Service provided by tenXengage, Inc., a Delaware corporation ("tenXengage," "we," "us," or "our"), to the customer identified in an applicable Order Form or other purchasing document ("Customer," "you," or "your"). By executing an Order Form that references these Terms, clicking to accept these Terms, or accessing or using the Service, Customer agrees to be bound by these Terms.

1. Definitions

1.1 Affiliate means any entity that directly or indirectly controls, is controlled by, or is under common control with a party, where control means ownership of more than fifty percent (50%) of the voting interests or equivalent power.

1.2 Authorized User means an employee, contractor, or other individual authorized by Customer to access and use the Service on Customer's behalf.

1.3 Confidential Information means non-public information disclosed by one party to the other that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information includes Customer Data, security materials, pricing, product plans, business information, and the non-public features and performance of the Service.

1.4 Customer Data means all data, content, records, files, documents, prompts, submissions, configurations, and other information submitted to, uploaded to, transmitted through, or otherwise made available to the Service by or for Customer, including data originating from Customer systems or Customer's end users.

1.5 Documentation means the usage guides, technical materials, product descriptions, and policies made available by tenXengage for the Service.

1.6 Order Form means an order, subscription form, statement of work, or other mutually executed document identifying the Service purchased, subscription term, fees, and any service-specific terms.

1.7 Security Incident means any confirmed unauthorized access to, or unauthorized acquisition, disclosure, alteration, or destruction of, Customer Data in tenXengage's possession or control.

1.8 Sensitive Personal Data means any category of data subject to heightened legal protection under applicable law, including where applicable government-issued identification numbers, financial account credentials, payment card data, health information, biometric data, children's data, and other similarly regulated data.

1.9 Service means the tenXengage platform, software, applications, APIs, websites, content, and related services provided by tenXengage under an applicable Order Form.

1.10 Subscription Term means the period during which Customer is authorized to use the Service under an applicable Order Form.

2. Agreement Structure

2.1 These Terms of Service ("Terms") govern access to and use of the Service provided by tenXengage, Inc., a Delaware corporation ("tenXengage," "we," "us," or "our"), to the customer identified in an applicable Order Form or other purchasing document ("Customer," "you," or "your").

2.2 These Terms apply to all access to and use of the Service unless the parties have entered into a separate master services agreement signed by both parties covering the same subject matter.

2.3 Each Order Form is incorporated into and governed by these Terms.

2.4 In the event of conflict, the following order of precedence applies: (a) the applicable Order Form; (b) any mutually executed data processing addendum or security addendum; (c) these Terms; and (d) the Documentation.

3. Access Rights and Permitted Use

3.1 Subject to Customer's compliance with these Terms and payment of all applicable fees, tenXengage grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right during the Subscription Term to access and use the Service for Customer's internal business purposes.

3.2 Customer may permit its Authorized Users to use the Service solely on Customer's behalf and remains responsible for all acts and omissions of its Authorized Users.

3.3 Customer shall not, and shall not permit any third party to:

• (a) sell, resell, license, sublicense, distribute, rent, lease, or timeshare the Service;
• (b) copy, modify, or create derivative works of the Service except as expressly permitted by these Terms or applicable law;
• (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive source code, underlying ideas, algorithms, or non-public structure of the Service, except to the extent such restriction is prohibited by applicable law;
• (d) use the Service to build, benchmark, or support a competing product or service;
• (e) interfere with, disrupt, or attempt to gain unauthorized access to the Service or related systems;
• (f) upload or transmit malicious code, harmful content, or unlawful material;
• (g) use the Service in violation of applicable law, third-party rights, or these Terms; or
• (h) use the Service for high-risk activities where failure of the Service could reasonably be expected to result in death, personal injury, or severe environmental or property damage.

4. Customer Responsibilities

4.1 Customer is responsible for:

• (a) maintaining the confidentiality of account credentials and authenticators;
• (b) assigning appropriate access rights to Authorized Users and promptly removing access that is no longer required;
• (c) ensuring that Customer Data and Customer's use of the Service comply with applicable law;
• (d) obtaining all required rights, permissions, notices, and consents related to Customer Data; and
• (e) using reasonable administrative, technical, and organizational measures to safeguard Customer systems, networks, and credentials.

4.2 Customer shall promptly notify tenXengage of any known or suspected unauthorized access to Customer accounts or credentials.

4.3 Customer is solely responsible for the accuracy, quality, legality, and means by which Customer acquires and provides Customer Data to the Service.

4.4 Unless expressly agreed in writing, Customer will not submit to the Service any Sensitive Personal Data or data subject to specialized regulatory regimes that materially change tenXengage's compliance obligations, including protected health information subject to HIPAA, export-controlled data, classified information, or cardholder data subject to PCI DSS.

5. Service Availability, Support, and Changes

5.1 tenXengage will use commercially reasonable efforts to make the Service available during the Subscription Term, subject to scheduled maintenance, emergency maintenance, force majeure events, third-party service dependencies, internet outages, and circumstances outside tenXengage's reasonable control.

5.2 Scheduled maintenance may result in temporary interruption of the Service. tenXengage will use commercially reasonable efforts to provide advance notice of material scheduled maintenance when practicable.

5.3 Support services, service levels, and uptime commitments, if any, shall be set forth in the applicable Order Form, support policy, or service level agreement.

5.4 tenXengage may modify, enhance, or update the Service from time to time, provided such changes do not materially reduce the core functionality purchased by Customer during the applicable Subscription Term.

6. Security Program

6.1 tenXengage will maintain a written information security program designed to protect the security, confidentiality, integrity, and availability of Customer Data processed by the Service.

6.2 tenXengage's security program will include safeguards appropriate to the nature of the Service and the risks presented, which may include, as applicable:

• (a) access controls and role-based provisioning;
• (b) authentication controls for administrative access, including multi-factor authentication where appropriate;
• (c) logging and monitoring of relevant systems;
• (d) encryption of Customer Data in transit using industry-standard protocols and encryption of Customer Data at rest where technically and commercially appropriate;
• (e) vulnerability management and security patching processes;
• (f) backup, recovery, and business continuity measures appropriate to the Service;
• (g) security awareness training and confidentiality obligations for personnel with relevant access; and
• (h) vendor and subprocessor oversight measures reasonably designed to protect Customer Data.

6.3 tenXengage may update its security measures from time to time, provided the overall security posture is not materially diminished.

6.4 Upon written request and subject to reasonable confidentiality restrictions, tenXengage may make available a summary of its then-current security practices and, once available, a copy or summary of its SOC 2 report or similar third-party assurance materials.

7. Incident Response and Security Notifications

7.1 tenXengage will maintain and follow a written incident response process designed to detect, respond to, mitigate, and document security incidents affecting the Service.

7.2 tenXengage will notify Customer without undue delay after confirming a Security Incident, unless notice is prohibited by law or law enforcement.

7.3 Such notice may be delivered by email to Customer's designated security or administrative contact and will include, to the extent reasonably available at the time:

• (a) a description of the nature of the Security Incident;
• (b) the categories of affected Customer Data, if known;
• (c) the measures taken or proposed to address the Security Incident; and
• (d) recommended steps Customer may take to mitigate potential adverse effects, where appropriate.

7.4 tenXengage's obligation to report or respond to a Security Incident is not and shall not be construed as an admission of fault or liability.

8. Confidentiality

8.1 The receiving party shall use the disclosing party's Confidential Information only to perform its obligations or exercise its rights under these Terms.

8.2 The receiving party shall protect Confidential Information using at least reasonable care, and no less than the care it uses to protect its own similarly sensitive information.

8.3 The receiving party may disclose Confidential Information only to personnel, contractors, affiliates, subprocessors, and professional advisers who have a need to know and are bound by confidentiality obligations at least as protective as those in these Terms.

8.4 Confidential Information does not include information that the receiving party can demonstrate: (a) is or becomes publicly available without breach of these Terms; (b) was lawfully known without restriction before disclosure; (c) is lawfully received from a third party without breach of confidentiality obligations; or (d) is independently developed without use of or reference to the disclosing party's Confidential Information.

8.5 The receiving party may disclose Confidential Information to the extent required by law, subpoena, or court order, provided it gives prior notice to the disclosing party where legally permitted and reasonably cooperates, at the disclosing party's expense, in seeking confidential treatment.

9. Customer Data, Processing, and Privacy

9.1 As between the parties, Customer retains all right, title, and interest in and to Customer Data.

9.2 Customer grants tenXengage and its subprocessors a limited, non-exclusive right to host, copy, transmit, process, display, and otherwise use Customer Data solely as necessary to provide, secure, monitor, support, maintain, and improve the Service, to prevent fraud and abuse, and to comply with applicable law.

9.3 To the extent tenXengage processes personal data on Customer's behalf, the parties will enter into a separate data processing addendum where required by applicable law.

9.4 tenXengage will process Customer Data in accordance with its Privacy Policy and any applicable data processing addendum, solely as permitted by these Terms and Customer's documented instructions.

9.5 Customer acknowledges that use of certain integrations, connectors, or third-party services may require Customer Data to be transmitted to or from third-party systems selected or enabled by Customer, and tenXengage is not responsible for the privacy, security, or performance of such third-party systems except to the extent a third party acts as tenXengage's authorized subprocessor in providing the Service.

10. AI Features and Service Outputs

10.1 The Service may include analytics, automation, recommendation, scoring, predictive, generative, or other artificial intelligence or machine-learning-enabled features.

10.2 Customer is responsible for reviewing outputs generated by the Service and for all business, legal, financial, compliance, and operational decisions made based on such outputs.

10.3 Unless expressly agreed otherwise in writing, tenXengage does not use Customer Confidential Information or Customer Data to train generalized third-party models made available to other customers, except: (a) as necessary to provide the Service for Customer's benefit; (b) to generate de-identified and aggregated usage statistics that do not identify Customer or individual data subjects; or (c) with Customer's prior written consent.

10.4 tenXengage may collect and use aggregated, anonymized, or de-identified usage data to operate, analyze, secure, and improve the Service, provided such data does not identify Customer as the source.

11. Compliance with Laws

11.1 Each party will comply with laws applicable to its performance under these Terms.

11.2 Customer shall not use the Service in violation of export control, sanctions, anti-bribery, anti-corruption, privacy, employment, or other applicable laws.

11.3 Customer represents that it is not subject to sanctions or located in a prohibited jurisdiction and will not provide access to the Service in violation of applicable trade laws.

12. Third-Party Services and Integrations

12.1 The Service may interoperate with third-party products, data sources, APIs, cloud infrastructure, or services. Use of third-party services may be subject to separate terms between Customer and the applicable provider.

12.2 tenXengage is not responsible for third-party services, including their security, availability, data handling, or performance, except to the extent a third party acts as tenXengage's authorized subprocessor in providing the Service.

12.3 tenXengage may suspend or discontinue an integration where required by law, where the third-party provider ceases interoperability, or where continued use presents material security, legal, or operational risk.

13. Intellectual Property Rights

13.1 tenXengage and its licensors retain all right, title, and interest in and to the Service, Documentation, software, models, interfaces, workflows, know-how, and all related intellectual property rights.

13.2 No rights are granted to Customer except as expressly stated in these Terms.

13.3 Customer may provide suggestions, comments, ideas, or feedback regarding the Service. Customer grants tenXengage a perpetual, irrevocable, worldwide, royalty-free right to use and incorporate such feedback into its products and services without restriction or obligation, provided tenXengage does not publicly identify Customer as the source without permission.

14. Fees, Billing, and Taxes

14.1 Customer shall pay all fees specified in the applicable Order Form.

14.2 Except as otherwise stated in an Order Form, fees are invoiced in advance, due within thirty (30) days from invoice date, and non-cancelable and non-refundable.

14.3 Late amounts may accrue interest at the lesser of one and one-half percent (1.5%) per month or the maximum amount permitted by law.

14.4 Fees are exclusive of taxes. Customer is responsible for all sales, use, VAT, GST, withholding, or similar taxes, excluding taxes based on tenXengage's net income, property, or employees.

14.5 tenXengage may suspend access to the Service for materially overdue undisputed amounts after providing reasonable prior notice and an opportunity to cure.

15. Suspension

15.1 tenXengage may suspend Customer's or any Authorized User's access to the Service immediately upon notice if:

• (a) use of the Service poses a material security risk to the Service or any third party;
• (b) Customer materially breaches these Terms;
• (c) Customer's use violates applicable law;
• (d) Customer is using the Service in a manner that could damage, disable, overburden, or impair the Service; or
• (e) payment obligations remain materially past due after notice and cure opportunity.

15.2 tenXengage will limit any suspension to the minimum extent and duration reasonably necessary under the circumstances.

16. Warranties

16.1 Each party represents that it has the authority to enter into these Terms.

16.2 tenXengage warrants that during the applicable Subscription Term: (a) the Service will materially conform to the Documentation; (b) tenXengage will provide the Service in a professional and workmanlike manner; and (c) tenXengage will not knowingly introduce malicious code into the Service, except where Customer or a third party introduces such code.

16.3 Customer's exclusive remedy and tenXengage's sole liability for breach of the warranties in this Section will be for tenXengage to use commercially reasonable efforts to correct the nonconformity. If tenXengage is unable to do so within a reasonable time, either party may terminate the affected Order Form and Customer will receive a pro rata refund of prepaid fees for the terminated portion of the unused Subscription Term.

17. Disclaimers

17.1 Except as expressly provided in these Terms, the Service, Documentation, outputs, AI features, beta features, and all related materials are provided AS IS and AS AVAILABLE. tenXengage disclaims all implied warranties, including warranties of merchantability, fitness for a particular purpose, title, non-infringement, and any warranties arising from course of dealing, usage, or trade practice.

17.2 Without limiting the foregoing, tenXengage does not warrant that the Service will be uninterrupted or error-free, that all defects will be corrected, or that all outputs or recommendations will be complete, accurate, or suitable for Customer's intended use cases.

18. Indemnification

18.1 tenXengage will defend Customer against any third-party claim alleging that the Service, when used as authorized under these Terms, directly infringes a United States patent, copyright, or trademark, and will pay resulting damages finally awarded or approved in settlement by tenXengage, provided Customer: (a) promptly notifies tenXengage of the claim; (b) allows tenXengage sole control of the defense and settlement; and (c) provides reasonable cooperation at tenXengage's expense.

18.2 tenXengage will have no obligation under Section 18.1 to the extent a claim arises from: (a) Customer Data; (b) Customer's modifications to the Service; (c) combination of the Service with items not provided by tenXengage; (d) use of the Service in violation of these Terms or Documentation; or (e) use of beta, free, or evaluation offerings.

18.3 If the Service becomes, or in tenXengage's opinion is likely to become, the subject of an infringement claim, tenXengage may: (a) procure the right for Customer to continue using the Service; (b) modify or replace the affected portion of the Service; or (c) terminate the affected Service and refund prepaid fees covering the unused portion of the terminated Subscription Term.

18.4 Customer will defend tenXengage against third-party claims arising from: (a) Customer Data; (b) Customer's or its Authorized Users' use of the Service in violation of these Terms or applicable law; or (c) Customer's failure to obtain required rights, notices, or consents for Customer Data, and Customer will pay resulting damages finally awarded or approved in settlement by Customer, subject to tenXengage's compliance with the notice, control, and cooperation requirements above.

19. Limitation of Liability

19.1 To the maximum extent permitted by law, neither party will be liable to the other for any indirect, incidental, special, consequential, exemplary, or punitive damages, or for any loss of profits, revenue, goodwill, business opportunity, anticipated savings, or data, even if advised of the possibility of such damages.

19.2 To the maximum extent permitted by law, each party's total aggregate liability arising out of or relating to these Terms will not exceed the total amounts paid or payable by Customer to tenXengage under the applicable Order Form during the twelve (12) months preceding the event giving rise to the claim.

19.3 The exclusions and limitations in this Section do not apply to: (a) Customer's payment obligations; (b) either party's breach of Section 8 (Confidentiality), except to the extent limited by law; (c) either party's indemnification obligations; (d) Customer's violation of Section 3.3; (e) fraud, willful misconduct, or gross negligence; or (f) liability that cannot be limited under applicable law.

20. Term and Termination

20.1 These Terms begin on the earlier of the effective date of the first Order Form or Customer's first access to the Service and continue until all Order Forms have expired or been terminated.

20.2 Unless otherwise stated in the applicable Order Form, subscriptions automatically renew for successive renewal terms equal to the initial Subscription Term unless either party gives written notice of non-renewal at least thirty (30) days before the end of the then-current term.

20.3 Either party may terminate these Terms or an affected Order Form for material breach if the other party fails to cure such breach within thirty (30) days after written notice, except where a different cure period is expressly stated in these Terms.

20.4 tenXengage may terminate immediately upon written notice if Customer becomes insolvent, makes an assignment for the benefit of creditors, enters bankruptcy or similar proceedings, or ceases business operations.

20.5 Upon expiration or termination: (a) Customer's rights to access and use the terminated Service end; (b) Customer shall pay all outstanding fees accrued through the effective termination date; (c) each party will return or destroy the other party's Confidential Information upon written request, subject to legal retention requirements; and (d) Sections that by their nature should survive will survive, including provisions concerning fees owed, confidentiality, intellectual property, disclaimers, indemnification, limitations of liability, and governing law.

21. Data Return and Deletion

21.1 During the Subscription Term and for up to thirty (30) days following expiration or termination, tenXengage will make Customer Data available for export or retrieval in a commercially reasonable manner, unless otherwise specified in the applicable Order Form or Documentation.

21.2 After the applicable retrieval period, tenXengage may delete Customer Data from active systems, except to the extent retention is required by law, reasonably necessary for legitimate business records, or maintained in routine backup archives for a limited period consistent with tenXengage's retention practices.

21.3 Where Customer requests deletion of Customer Data and such deletion is not prohibited by law or inconsistent with tenXengage's legal retention obligations, tenXengage will process such request within a commercially reasonable period.

22. Audit Materials and Security Assurance

22.1 Customer acknowledges that tenXengage uses standardized security and confidentiality controls for a multi-tenant cloud environment. Accordingly, any customer audit rights are limited to the materials expressly provided in this Section unless otherwise agreed in writing.

22.2 Upon reasonable written request, and no more than once annually unless required by law or following a confirmed Security Incident, tenXengage may provide available security documentation reasonably necessary for Customer's vendor risk assessment, such as: (a) security summaries; (b) penetration test executive summaries, where available and appropriate; (c) vulnerability management summaries; (d) business continuity or disaster recovery summaries; and (e) once available, a current SOC 2 report or similar independent assessment report, in each case subject to confidentiality restrictions.

22.3 Customer will treat all such materials as Confidential Information and will not disclose them to third parties except to its auditors, regulators, legal advisers, or customers with a need to know and subject to confidentiality obligations.

23. Publicity

23.1 Neither party may issue a press release naming the other party without prior written consent, except as required by law.

23.2 tenXengage may include Customer's name and logo in a customer list solely if Customer has provided prior written approval.

24. Changes to the Terms

24.1 tenXengage may update these Terms from time to time. Any updated Terms will apply prospectively as of the posted effective date.

24.2 For active paid subscriptions under an executed Order Form, material changes will not apply until renewal of the applicable Subscription Term unless required by law or necessary to address a security, compliance, or Service integrity issue.

25. Governing Law and Venue

25.1 These Terms are governed by the laws of the State of Delaware, without regard to its conflict of laws principles.

25.2 The state and federal courts located in Delaware will have exclusive jurisdiction over any dispute arising out of or relating to these Terms, and each party consents to the personal jurisdiction and venue of those courts.

26. Notices

26.1 Legal notices to tenXengage must be sent to: tenXengage, Inc., Attention: Legal Notice, Email: legal@tenxengage.com.

26.2 Legal notices to Customer must be sent to the address or email identified in the applicable Order Form unless Customer updates that information in writing.

26.3 Operational notices may be provided by email or through the Service.

27. Miscellaneous

27.1 Independent Contractors. The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship.

27.2 Assignment. Neither party may assign these Terms without the other party's prior written consent, except to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of substantially all assets, provided the assignee agrees in writing to be bound by these Terms.

27.3 Force Majeure. Neither party is liable for delay or failure to perform due to causes beyond its reasonable control, including natural disasters, labor disputes, acts of government, war, terrorism, internet or telecommunications failures, or cloud infrastructure outages, except that Customer's payment obligations are not excused.

27.4 Severability. If any provision of these Terms is held unenforceable, the remaining provisions will remain in full force and effect.

27.5 Waiver. Failure to enforce any provision of these Terms will not constitute a waiver of that provision.

27.6 Entire Agreement. These Terms, together with all incorporated Order Forms and addenda, constitute the entire agreement between the parties with respect to their subject matter and supersede all prior or contemporaneous agreements, proposals, and communications on that subject.

27.7 Counterparts and Electronic Acceptance. These Terms and any Order Form may be accepted in electronic form and in counterparts, each of which is deemed an original and together constituting one instrument.