These Terms of Sale for Benchmarks (these “Benchmark Terms”) apply to each license of Benchmark Materials, and each purchase of Benchmark Runs, from Surge Labs, Inc. (“Surge”). These Benchmark Terms are hosted at Surge’s website and are incorporated by reference into each invoice or order form issued by Surge that references these Benchmark Terms by title or URL (each, an “Invoice”). By signing, countersigning or otherwise accepting an Invoice, the customer identified in such Invoice (“Customer”) agrees to be bound by these Benchmark Terms. Surge and Customer are each referred to as a “Party” and, together, as the “Parties.”

1. Formation; Structure of the Transaction.

Each Invoice, together with these Benchmark Terms, constitutes the complete and entire agreement (a “Transaction”) between Surge and Customer solely with respect to the Benchmark Materials and Benchmark Runs identified in such Invoice. These Benchmark Terms shall apply to each Transaction; no signature, countersignature or other action by Surge beyond issuance of the Invoice is required to render these Benchmark Terms binding on Customer. Each Transaction is separate from, and independent of, any other Transaction between Surge and Customer, and no course of dealing, trade practice or prior Transaction shall be construed to modify these Benchmark Terms for any other Transaction.

2. No Effect of Prior Agreements; Rejection of Additional or Conflicting Terms.

Notwithstanding anything to the contrary in any other agreement, including any master services agreement, data services agreement, statement of work, non-disclosure agreement, term sheet, purchase order, vendor onboarding terms, procurement portal terms, click-through terms or other arrangement between Surge and Customer, whether entered into before, on or after the date of any Invoice (each, a “Prior Agreement”), the terms of any such Prior Agreement shall not apply to, govern or otherwise affect any Transaction, any Benchmark Materials, any Benchmark Run, any Run Results or any Invoice, and are expressly superseded and shall be of no force or effect for such purposes. Without limiting the foregoing, no provision of any Prior Agreement that assigns, vests or licenses to Customer any ownership of or rights in work product, deliverables or data shall apply to any Benchmark Materials or Run Results. Any additional or different terms proposed by Customer in a purchase order, vendor portal, cover letter or other document are hereby rejected and shall have no force or effect, even if Surge does not separately object to them, unless expressly agreed to by Surge in a signed writing that specifically references these Benchmark Terms by section number.

3. Order of Precedence.

If there is a conflict between these Benchmark Terms and an Invoice, the Invoice controls solely to the extent of such conflict and solely to the extent expressly stated in such Invoice with reference to the applicable section of these Benchmark Terms.

4. Definitions.

For purposes of these Benchmark Terms, the capitalized terms below shall have the following meanings:

“Benchmark” means each Surge benchmark identified in an Invoice, by name and, where applicable, version.

“Benchmark Content” means the Tasks, the Harness and Grader Configurations and the Documentation, and any portion of any of them, in any form and wherever they appear, including as reproduced in any Run Results.

“Benchmark Materials” means, for each Benchmark that an Invoice identifies as licensed to Customer, (a) the tasks comprising such Benchmark, including, as and if applicable, all prompts, inputs, files, environments, reference answers, rubrics and other task content (the “Tasks”); (b) the evaluation harness, grader configurations, grader prompts and settings, scoring scripts and related software and configuration files (the “Harness and Grader Configurations”); (c) the “README” file and any other documentation describing how scores and pass rates are computed (the “Documentation”); and (d) any Updates; in each case, together with all copies, portions, modifications and derivatives thereof made by or for Customer.

“Benchmark Run” or “Run” means one execution by Surge of the complete set of Tasks of one Benchmark against one checkpoint of one Customer Model through the Customer Endpoint, including Surge’s grading of the resulting Customer Model Outputs.

“Business Day” means any day other than a Saturday, Sunday or U.S. federal holiday.

“Customer Endpoint” means the application programming interface endpoint, and the associated credentials, through which Customer makes a Customer Model available to Surge for a Run.

“Customer Model” means an artificial intelligence model that is developed by or for, and owned or controlled by, Customer, including any checkpoint of such model.

“Customer Model Outputs” means the outputs generated by a Customer Model in response to Tasks during a Run.

“Evaluation Purpose” means Customer’s internal measurement and assessment of the performance of Customer Models, and Customer’s internal reporting of the results of such measurement and assessment.

“License Term” means, for each Benchmark licensed under an Invoice, twelve (12) months beginning on the date on which Surge delivers the applicable Benchmark Materials to Customer.

“Run Results” means, for each Run, (a) the Scores; (b) the per-task results; and (c) the run logs and any other metadata that Surge elects to provide; in each case, as delivered by Surge.

“Scores” means the aggregate score and the numerical per-task results (such as pass, fail or a numerical score) included in Run Results or generated by Customer using the Benchmark Materials, excluding any Benchmark Content.

“Updates” means any additions, revisions, corrections or replacements of Tasks, Harness and Grader Configurations or Documentation that Surge elects, in its sole discretion, to deliver to Customer during a License Term.

5. Benchmark Materials; License.

(a) Ownership. Customer is receiving a copy of the Benchmark Materials solely for use under the license set forth in Section 5(b). All right, title and interest in and to the Benchmark Materials, including all intellectual property rights, database rights and other proprietary rights, are and will remain with Surge and its licensors. No title to any Benchmark Materials shall pass to Customer.

(b) License Grant. Subject to Customer’s payment of the fees due under the applicable Invoice and Customer’s continued compliance with these Benchmark Terms, Surge grants to Customer a non-exclusive, non-transferable, non-sublicensable, revocable (solely as provided in Section 20) license, during the License Term only, to install, copy (solely as reasonably necessary), and use the Benchmark Materials internally to run the Tasks against Customer Models using the Harness and Grader Configurations, solely for the Evaluation Purpose. Customer may modify the Harness and Grader Configurations solely to the extent necessary to operate them in Customer’s computing environment.

(c) Third-Party Components. Benchmark Materials may include or be accompanied by open source or other third-party software, data, repositories or content (“Third-Party Components”). Third-Party Components are subject to the license terms that accompany them or that Surge identifies in the Documentation or the Invoice, and Customer shall comply with such terms.

(d) No Exclusivity. The license granted hereunder is non-exclusive. Surge may license, sell, publish or otherwise make available any Benchmark or Benchmark Content (or any similar benchmark) to any third party, including competitors of Customer, and may modify, publicly release or retire any Benchmark, in each case at any time and without notice to Customer. Nothing in these Benchmark Terms restricts Surge from independently evaluating any publicly available model, including any publicly available Customer Model, or from publishing the results of such evaluation.

(e) Updates. Surge shall have the right, but not the obligation, to provide Updates to Customer from time to time. Any Update shall be automatically deemed included within the Benchmark Materials, and delivery of Updates shall not extend the License Term.

6. Benchmark Runs.

(a) Scope. Surge will perform the Runs identified in the Invoice at the delivery tier stated in the Invoice (“Standard” or “Rush”) and deliver the Run Results to Customer. Surge’s sole obligation with respect to each Run shall be to deliver the applicable Run Results.

(b) Customer Endpoint. Customer shall provide Surge with access to the Customer Endpoint, together with any credentials, documentation, rate limits and other technical information that Surge reasonably requests, sufficient to permit Surge to complete each Run using the Harness and Grader Configurations. Customer authorizes Surge and its subcontractors and service providers to access and query the Customer Endpoint as necessary to perform the Runs. Customer shall be solely responsible for the Customer Endpoint and the Customer Model, including, without limitations, with respect to availability, capacity and performance, and for all inference, hosting and other costs associated therewith.

(c) Endpoint Validation. “Endpoint Validation” shall occur when Surge notifies Customer (email sufficient) that Surge is able to access and query the Customer Endpoint in the manner required to perform the applicable Run.

(d) Target Delivery Dates. Surge will use commercially reasonable efforts to deliver the Run Results for each Run within four (4) Business Days, for a Standard Run, or two (2) Business Days, for a Rush Run, after the later of (i) Endpoint Validation and (ii) full execution of the applicable Invoice (each, a “Target Delivery Date”). Target Delivery Dates are estimates and are extended day for day for any period during which the Customer Endpoint is unavailable, rate-limited, returning errors or otherwise not functioning in the manner required to perform the Run, or during which Customer has not provided information or cooperation reasonably required by Surge to perform the applicable Run. Surge shall have the right to decline a Rush Run for any Benchmark whose run time makes such Rush Run impracticable.

(e) Exclusive Remedy for Late Rush Runs. If Surge fails to deliver the Run Results for a Rush Run by the applicable Target Delivery Date, Customer’s sole and exclusive remedy, and Surge’s sole liability, shall be that the fee for such Run will be reduced to the Standard fee for such Run stated in the Invoice. Surge shall have no other liability for any delay in performing any Run or delivering any Run Results.

(f) Endpoint Failure. If Endpoint Validation has not occurred within thirty (30) days after the date of the Invoice, or if, after Endpoint Validation, the Customer Endpoint does not function in the manner required to perform a Run for more than five (5) consecutive Business Days, Surge may, at its option and upon notice to Customer, either (i) deliver Run Results based on the Tasks completed, with each incomplete Task scored as a failure, or (ii) cancel such Run. In either case, the fee for such Run shall be due in full upon such delivery or cancellation.

(g) Nature of Run Results. Customer acknowledges that model evaluation is inherently variable; that results may differ between Runs of the same checkpoint; that graders, including model-based graders, may produce errors; and that Run Results reflect performance only on the applicable Tasks, using the applicable Harness and Grader Configurations, against the Customer Endpoint as it functioned at the time of the Run. Run Results are not a certification, endorsement or representation by Surge concerning the capabilities, safety or fitness of any Customer Model.

(h) Model-Based Graders. Customer acknowledges that certain Harness and Grader Configurations use model-based graders that may be operated by third-party model providers, and that Customer Model Outputs may be submitted to such providers for grading.

7. Ownership; Run Results; Customer Model Outputs; Feedback.

(a) Surge Ownership. Surge and its licensors shall retain all right, title and interest in and to the Benchmarks, the Benchmark Materials, the Benchmark Content and the Run Results (other than the Customer Model Outputs reproduced in them), and all modifications and derivatives of any of the foregoing, including all intellectual property rights therein. To the extent Customer or any Contractor acquires any right, title or interest in any such modification or derivative, Customer hereby assigns, and shall cause such Contractor to assign, such right, title and interest to Surge. All rights not expressly granted to Customer in these Benchmark Terms are reserved by Surge.

(b) Run Results License. Subject to Customer’s payment of the fees due under the applicable Invoice and Customer’s continued compliance with these Benchmark Terms, Surge grants to Customer a non-exclusive, non-transferable, non-sublicensable license to use the Run Results solely for the Evaluation Purpose: (i) with respect to Scores, in perpetuity, and (ii) with respect to all other Run Results, for the License Term of the applicable Benchmark.

(c) Customer Model Outputs. As between the Parties, Customer shall retain such rights as it has in the Customer Models and the Customer Model Outputs. Customer grants Surge and its subcontractors and service providers a non-exclusive, worldwide, royalty-free license to access, use, copy, store and process the Customer Model Outputs to perform the Runs, to generate and deliver the Run Results, to maintain its business records and to maintain, validate and improve the Benchmarks and the Harness and Grader Configurations, subject to Section 18(d).

(d) Feedback. If Customer provides Surge with any suggestions, comments or other feedback concerning any Benchmark, the Benchmark Materials or the Runs, Surge may use and exploit such feedback for any purpose without restriction or obligation to Customer.

8. Restrictions.

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

(a) use any Benchmark Materials or Run Results for any purpose other than the Evaluation Purpose;

(b) use any Benchmark Content, in whole or in part, directly or indirectly, to train, fine-tune, post-train, distill, align or otherwise improve any artificial intelligence model, including, without limitation, as training data, a reinforcement learning environment, a reward signal or reward model, a grader, preference data, few-shot examples or seed data for synthetic data generation, or to optimize any model, prompt, system or configuration specifically for performance on any Benchmark; provided that Customer’s use of Scores to inform its general model development decisions, such as checkpoint selection, shall not be deemed to violate this Section 8(b);

(c) use any Benchmark Content to create, generate, augment, paraphrase, validate or improve any task, data set, benchmark, evaluation, environment or product, whether for Customer or for any third party;

(d) use any Benchmark Materials to evaluate any model other than a Customer Model or to provide evaluation, benchmarking or similar services to any third party;

(e) disclose, publish, post, distribute, sell, sublicense, rent, lease or otherwise make available any Benchmark Materials or Run Results to any third party, including in any public repository, research paper, model card or system card, except (i) to Contractors solely to support Customer’s use for the Evaluation Purpose, or (ii) Scores, pursuant to Section 9;

(f) attempt to extract, reconstruct or compile Benchmark Content from Run Results;

(g) remove, obscure or alter any proprietary, confidentiality or similar notices or strings contained in or accompanying any Benchmark Materials or Run Results;

(h) use any Benchmark Materials or Run Results in violation of applicable law, including export control laws; or

(i) use any Benchmark Materials or Run Results to build, offer or improve any product or service that competes with any Surge product or service.

Customer shall be responsible for any act or omission of its personnel or Contractors that would breach these Benchmark Terms if committed by Customer.

“Contractors” means Customer’s bona fide service providers that (i) have executed a written agreement with Customer containing confidentiality and use restrictions at least as protective of Surge as those set forth in these Benchmark Terms, and (ii) have acknowledged these Benchmark Terms in writing; provided that “Contractors” shall exclude any direct competitor of Surge and any other provider of data, data annotation, benchmark or evaluation services substantially similar to those of Surge.

9. Publication of Scores.

Notwithstanding Sections 8 and 18, Customer may publicly disclose any Score achieved by a Customer Model, so long as (a) Customer does not disclose any Benchmark Content or per-Task results; (b) Customer identifies the Benchmark by name and, where applicable, version, and identifies Surge as its source; (c) Customer states whether the Score was generated by Surge in a Run or by Customer using the Benchmark Materials, and discloses any material modification to the Harness and Grader Configurations or other material deviation from the Documentation; (d) such disclosure is accurate and not misleading; and (e) Customer does not state or imply that Surge endorses Customer or any Customer Model. Except as set forth in this Section 9, Customer shall not use Surge’s name, logos or trademarks without Surge’s prior written consent.

10. Expiration; Deletion; Certification.

(a) Cessation of Use and Deletion. Upon the expiration of the License Term for any Benchmark, or upon any earlier termination thereof, Customer shall immediately cease all use of the applicable Benchmark Materials and, within ten (10) days thereafter, permanently delete or destroy all copies of such Benchmark Materials in the possession or control of Customer or its Contractors. Upon the expiration or termination of the license to any Run Results (other than Scores), Customer shall do the same with respect to such Run Results.

(b) Backup Copies. Customer shall not be required to delete copies stored in automated backup or archival systems that are not readily accessible in the ordinary course until such copies are overwritten or deleted in accordance with Customer’s standard retention practices, provided that Customer does not restore, access or use such copies, and such copies shall remain subject to Sections 8 and 18 for so long as they are retained.

(c) Retained Scores. Customer may retain Scores, and Customer’s internal records reflecting Scores, after the expiration or termination of the applicable license, provided that such Scores and records contain no Benchmark Content.

(d) Certification. Within ten (10) days after Surge’s written request, Customer shall certify in writing, through an authorized officer, Customer’s compliance with this Section 10.

(e) No Renewal Right. Surge shall have no obligation to offer any renewals or additional Transactions to Customer.

11. Delivery; Acceptance.

Delivery of Benchmark Materials and Run Results will occur by electronic transfer or other method identified in the Invoice. Benchmark Materials and Run Results shall be deemed accepted by Customer immediately upon delivery. Customer shall be solely responsible for the systems, software and connectivity necessary to receive and use the Benchmark Materials and Run Results.

12. Fees; Payment Due on Delivery; Taxes.

Customer shall pay the fees set forth in the Invoice in full, in U.S. dollars, unless otherwise stated in the Invoice. Fees for Benchmark Materials shall be due upon delivery thereof, and fees for each Run shall be due upon delivery of the applicable Run Results (or as otherwise provided in Section 6(f)). Surge shall have no obligation to deliver, and may withhold delivery of, any Benchmark Materials or Run Results until payment in full of the applicable fees. All fees are non-cancellable and non-refundable. Any amount not paid when due will accrue interest at the rate of 1.5% per month, or the maximum rate permitted by applicable law, if lower, and Customer shall reimburse Surge for all reasonable costs of collection, including reasonable attorneys’ fees and court costs. All fees are exclusive of taxes; Customer shall be responsible for all applicable sales, use, value-added and similar taxes and duties (excluding taxes on Surge’s income). If an Invoice reflects a discount from Surge’s list price, including a discount to zero, such discount shall apply solely to the applicable Transaction, and these Benchmark Terms shall continue to apply to such Transaction in all respects.

13. Invoice Execution; Authority to Bind.

Customer represents and warrants to Surge that: (a) the individual executing each Invoice has full right, power and authority to bind Customer to these Benchmark Terms and the applicable Invoice; (b) such execution does not violate any agreement or obligation by which Customer is bound; and (c) Customer has authorized the license and purchase of the Benchmark Materials and Runs identified in the Invoice on the terms stated herein and therein. Surge shall be entitled to rely conclusively on the apparent authority of the individual signing or accepting the Invoice, without further inquiry or investigation.

14. No Support, Maintenance or Updates.

Surge shall have no obligation to provide any support, maintenance, Updates, corrections or replacements with respect to any Benchmark Materials or Run Results, to re-run any Run or re-grade any Run Results, or to notify Customer of any error, including any error in any Task, reference answer, rubric, grader or Run Results, whether or not Surge becomes aware of such error. Any support, Update, correction or re-run that Surge elects to provide shall be provided in Surge’s sole discretion, shall not create any obligation to provide the same or any other support, Update, correction or re-run, and shall be subject to these Benchmark Terms.

15. No Warranties; “As Is”.

THE BENCHMARKS, THE BENCHMARK MATERIALS, THE RUNS AND THE RUN RESULTS ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS. SURGE DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTIES OF ACCURACY, COMPLETENESS, RELIABILITY, REPRODUCIBILITY, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE FOREGOING, SURGE DOES NOT WARRANT THAT ANY BENCHMARK IS OR WILL REMAIN CONFIDENTIAL, UNIQUE OR ABSENT FROM ANY PUBLICLY AVAILABLE SOURCE OR TRAINING DATA, THAT ANY RUN WILL BE COMPLETED BY ANY PARTICULAR DATE, OR THAT ANY RUN RESULTS WILL BE ERROR-FREE OR ACCURATELY REFLECT THE CAPABILITIES OF ANY MODEL.

16. Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SURGE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, COVER OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS, REVENUE, GOODWILL OR DATA, ARISING OUT OF OR RELATED TO THESE BENCHMARK TERMS, ANY TRANSACTION, ANY BENCHMARK MATERIALS, ANY RUN, ANY RUN RESULTS OR ANY ACCESS TO OR USE OF THE CUSTOMER ENDPOINT, REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF SURGE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SURGE’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO A TRANSACTION WILL NOT EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO SURGE UNDER THE APPLICABLE INVOICE GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE, BUT DO NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 12 OR CUSTOMER’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 17.

17. Indemnification by Customer.

Customer shall defend, indemnify and hold harmless Surge and its officers, directors, employees and agents (collectively, the “Indemnitees”) from and against any and all third-party claims, losses, liabilities, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to: (a) any breach by Customer of Section 8 (Restrictions; Contamination Controls), Section 9 (Publication of Scores), Section 10 (Expiration; Deletion; Certification), Section 13 (Invoice Execution; Authority to Bind) or Section 18 (Confidentiality); (b) Customer’s violation of applicable law; or (c) any Customer Model, Customer Model Output or Customer Endpoint, including any claim that Surge’s access to or use of any Customer Endpoint or Customer Model Output in accordance with these Benchmark Terms infringes, misappropriates or violates any right of a third party.

18. Confidentiality.

(a) Confidential Information. “Confidential Information” means the Benchmark Materials, the Benchmark Content (wherever it appears, including in any Run Results), the Run Results (other than Customer Model Outputs and, to the extent publicly disclosed in accordance with Section 9, Scores), each Invoice, and the pricing and other terms of each Transaction. Customer shall (i) hold Confidential Information in strict confidence, using at least the same degree of care it uses to protect its own confidential information of similar importance and no less than a reasonable degree of care; (ii) not disclose, share, publish, post or otherwise make available any Confidential Information to any third party, in whole or in part, without Surge’s prior written consent, except to Contractors as permitted under Section 8; and (iii) use Confidential Information solely as necessary to exercise its rights and perform its obligations under the applicable Transaction.

(b) Exceptions. The restrictions in Section 18(a) shall not apply to information that Customer can demonstrate: (i) is or becomes publicly available through no fault of Customer or its Contractors; (ii) was rightfully in Customer’s possession without confidentiality restriction prior to disclosure by Surge; (iii) is independently developed by Customer without use of or reference to Surge’s Confidential Information; or (iv) is required to be disclosed by law or court order, provided Customer gives Surge prompt written notice, to the extent legally permitted, and reasonable cooperation to seek a protective order.

(c) Remedies. Customer acknowledges that unauthorized disclosure or use of Confidential Information or Benchmark Materials may cause irreparable harm to Surge for which monetary damages would be an inadequate remedy, and that Surge shall be entitled to seek injunctive and other equitable relief, in addition to all other remedies available at law, without the necessity of posting a bond.

(d) Customer Run Data. Except as provided in Section 6(h) and Section 7(c), Surge will not disclose to any third party, without Customer’s prior written consent, (i) the Customer Model Outputs, (ii) the Run Results for any Customer Model that has not been publicly released, or (iii) the fact that Customer has submitted any checkpoint for a Run; provided that Surge may disclose any of the foregoing to its affiliates, subcontractors and service providers that are bound by obligations of confidentiality, as necessary to perform the Runs, or as required by law. Surge will use the Customer Endpoint credentials solely to perform the Runs, and will not use Customer Model Outputs to train any artificial intelligence model. Surge shall have no obligation to retain any Customer Model Outputs or Run Results and shall have the right to delete the same at any time following delivery of the applicable Run Results.

19. Export Control; Sanctions.

Customer represents and warrants to Surge that it is not (a) named on any list of prohibited or restricted parties administered by the U.S. government, including the Specially Designated Nationals list or the Entity List, or any applicable non-U.S. equivalent, or (b) located in, or organized under the laws of, any country or territory subject to comprehensive U.S. sanctions or embargo. Customer shall not export, re-export or transfer any Benchmark Materials or Run Results, directly or indirectly, or permit access to them by any person, in violation of applicable export control or sanctions laws.

20. Term; Termination for Breach; Survival.

(a) Term. These Benchmark Terms, as incorporated into each Invoice, shall be effective upon Customer’s execution or acceptance of the applicable Invoice and continue for as long as necessary to give effect to the Parties’ respective rights and obligations with respect to the applicable Transaction.

(b) Termination for Breach. If Customer materially breaches these Benchmark Terms and fails to cure such breach within ten (10) days after written notice from Surge, Surge shall have the right, but not the obligation, to terminate any or all licenses granted under the affected Transaction and cancel any Runs not yet performed, in each case without any refund of fees paid and without relieving Customer of its obligation to pay any fees accrued.

(c) Survival. Sections 2, 3, 4, 5(a), 5(c), 5(d), 6(g), 6(h), and 7 through 26 shall survive the expiration or termination of any Transaction or license, together with any payment obligations accrued prior to such expiration or termination.

21. Assignment.

Customer may not assign or transfer any Transaction or these Benchmark Terms, in whole or in part, without Surge’s prior written consent, except to a wholly owned subsidiary or successor in connection with a merger, acquisition or sale of all or substantially all of Customer’s assets, provided that (a) the assignee is not a competitor of Surge, as reasonably determined by Surge, and (b) such assignee agrees in writing to be bound by these Benchmark Terms. Any purported assignment in violation of this Section 21 is void. Surge may assign any Transaction and these Benchmark Terms, in whole or in part, without Customer’s consent, to a wholly owned subsidiary or in connection with a merger, acquisition, reorganization or sale of assets.

22. Governing Law.

These Benchmark Terms and each Transaction are governed by the laws of the State of New York, without regard to its conflict of laws principles.

23. Dispute Resolution; Mandatory Arbitration.

(a) Arbitration. Any dispute, claim or controversy arising out of or relating to these Benchmark Terms, any Invoice or any Transaction (a “Dispute”) shall be resolved by final and binding arbitration administered by the American Arbitration Association (“AAA”) under its Commercial Arbitration Rules then in effect, before a single arbitrator, seated in New York, New York. The arbitration shall be conducted in the English language. Judgment on the award may be entered in any court of competent jurisdiction. THE PARTIES WAIVE ANY RIGHT TO A JURY TRIAL AND TO PARTICIPATE IN A CLASS, COLLECTIVE OR REPRESENTATIVE ACTION.

(b) Equitable Relief Exception. Notwithstanding Section 23(a), either Party may bring an action in the state or federal courts located in New York County, New York (i) to seek temporary, preliminary or permanent injunctive or other equitable relief in aid of arbitration or to prevent irreparable harm, including in connection with any actual or threatened breach of Section 8 (Restrictions; Contamination Controls), Section 10 (Expiration; Deletion; Certification) or Section 18 (Confidentiality), or any infringement or misappropriation of intellectual property rights; or (ii) to enforce or confirm an arbitration award. Each Party consents to the exclusive personal jurisdiction and venue of such courts for such purposes and waives any objection based on forum non conveniens.

(c) Confidentiality of Arbitration. The arbitration, including the existence of the Dispute, filings, evidence and the award, shall be treated as Confidential Information under Section 18, except as necessary to enforce or confirm the award or as otherwise required by law.

24. Notices.

All notices under these Benchmark Terms shall be in writing and delivered by email to the addresses specified in the applicable Invoice, or such other address as a Party designates by notice given in accordance with this Section 24. Notices are deemed given upon confirmation of transmission, provided that notices of breach, termination or legal process shall also be sent by a nationally recognized courier to the receiving Party’s address of record.

25. Updates to these Benchmark Terms.

Surge may update or modify these Benchmark Terms from time to time. The version of these Benchmark Terms that is publicly posted and referenced, by date or link, in an Invoice as of the date of such Invoice shall govern the Transaction to which such Invoice relates. Changes to these Benchmark Terms made after the date of an Invoice shall not apply retroactively to a Transaction unless the Parties otherwise agree in writing.

26. Miscellaneous.

(a) Entire Agreement. These Benchmark Terms and the applicable Invoice constitute the entire agreement between the Parties regarding the applicable Transaction and supersede all prior or contemporaneous agreements, understandings and communications, whether written or oral, on such subject, subject to Section 2.

(b) No Waiver; Amendment. No failure or delay by either Party in exercising any right under these Benchmark Terms shall operate as a waiver of such right. Any amendment or waiver shall be made in accordance with Section 2.

(c) Severability. If any provision of these Benchmark Terms is held unenforceable, such provision shall be modified to the minimum extent necessary to make it enforceable, and the remaining provisions will remain in full force and effect.

(d) Independent Contractors. The Parties are independent contractors. Nothing in these Benchmark Terms creates a partnership, joint venture, agency or employment relationship.

(e) No Third-Party Beneficiaries. There are no third-party beneficiaries to these Benchmark Terms, except the Indemnitees expressly set forth Section 17.

(f) Force Majeure. Neither Party shall be liable for any delay or failure to perform, other than payment obligations, resulting from causes beyond its reasonable control.

(g) Counterparts; Electronic Signature. An Invoice may be executed in counterparts and by electronic signature or other electronic means, including by email acceptance, each of which shall be deemed an original and all of which, together, shall constitute one instrument.

(h) Headings. Section headings are for convenience only and shall not affect the interpretation of these Benchmark Terms.