These Terms of Sale for Enterprise Pilots (these “Pilot Terms”) apply to each paid pilot purchased from Surge Labs, Inc. (“Surge”). These Pilot Terms are hosted at Surge’s website and are incorporated by reference into each order form issued by Surge that references these Pilot Terms by title or URL (each, an “Order Form”). By signing, countersigning or otherwise accepting an Order Form, the customer identified in such Order Form (“Customer”) agrees to be bound by these Pilot Terms. Surge and Customer are each referred to as a “Party” and, together, as the “Parties.”

1. Transactions.

Each Order Form, together with these Pilot Terms, constitutes the complete and entire agreement (a “Transaction”) between Surge and Customer solely with respect to the Pilot identified in such Order Form. These Pilot Terms shall apply to each Transaction; no signature, countersignature or other action by Surge beyond issuance of the Order Form shall be required to render these Pilot 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 Pilot Terms for any other Transaction.

2. Prior Agreements; Conflicting Terms.

Notwithstanding anything to the contrary in any other agreement, including any non-disclosure agreement, term sheet, purchase order, supplier code of conduct, 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 Order Form (each, a “Prior Agreement”), the terms of any such Prior Agreement shall not apply to, govern or otherwise affect any Transaction, any Pilot, any Pilot Dataset or any Order Form, and are expressly superseded and shall be of no force or effect for such purposes. 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 Pilot Terms by section number. Customer’s issuance of a purchase order, or Surge’s acceptance of or registration in any procurement or invoicing system, shall be solely for Customer’s administrative convenience.

3. Order of Precedence.

In the event of any conflict between these Pilot Terms and an Order Form, the Order Form shall control solely to the extent of such conflict and solely to the extent expressly stated in such Order Form with reference to the applicable section of these Pilot Terms.

4. Definitions.

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

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

“Commercial Agreement” means a definitive written agreement between the Parties, executed after the date of the applicable Order Form, under which Surge provides data or services to Customer beyond the Pilot.

“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 Pilot Terms, and (ii) have acknowledged these Pilot Terms in writing; provided that “Contractors” shall exclude any direct competitor of Surge and any other provider of data, data annotation or evaluation services substantially similar to those of Surge.

“Customer Materials” means any data, documents, guidelines, specifications, prompts and other materials provided by or on behalf of Customer to Surge in connection with a Pilot.

“Evaluation Period” means, for each Pilot, the period of ninety (90) days beginning on the date on which Surge delivers the applicable Pilot Dataset to Customer, unless otherwise stated in the Order Form.

“Permitted Purpose” means Customer’s internal review, inspection, analysis and testing of the Pilot Dataset, solely to assess the quality and suitability of Surge’s data and services in connection with Customer’s consideration of a Commercial Agreement; provided that the Permitted Purpose shall exclude any use of the Pilot Dataset to train, fine-tune, post-train or otherwise develop or improve, or to evaluate, benchmark or test the performance of, any artificial intelligence or machine learning model.

“Pilot” means the paid pilot described in an Order Form, consisting of Surge’s creation and delivery of the applicable Pilot Dataset.

“Pilot Dataset” means the data set(s), and any accompanying documentation, that Surge creates and delivers to Customer under an Order Form, as described in such Order Form, together with all copies, portions, modifications and derivatives thereof made by or for Customer.

“Surge Materials” means all tools, software, platforms, methodologies, processes, workflows, guidelines, rubrics, templates, know-how and other materials that Surge uses or develops in performing any Pilot, other than the Pilot Dataset and the Customer Materials.

5. Pilot; Delivery; Acceptance.

(a) Performance of the Pilot. Surge shall perform each Pilot and deliver the applicable Pilot Dataset as described in the Order Form. Surge shall have the right to use its affiliates, subcontractors and contributor workforce in performing any Pilot, and Surge shall be responsible for their compliance with Section 14.

(b) Customer Cooperation. Customer shall provide the Customer Materials, and such information and cooperation as Surge reasonably requires, to perform each Pilot. Delivery dates stated in an Order Form are estimates and shall be extended day for day for any delay attributable to Customer, including, without limitation, any delay in providing Customer Materials, information, feedback or approvals.

(c) Delivery; Acceptance. Delivery of each Pilot Dataset shall occur by electronic transfer or other method identified in the Order Form. Each Pilot Dataset shall be deemed accepted by Customer immediately upon delivery. No acceptance testing period, right of rejection or right to a refund or re-performance shall apply to any Pilot or Pilot Dataset. Customer shall be solely responsible for the systems, software and connectivity necessary to receive and use the Pilot Dataset.

(d) Questions During the Evaluation Period. During the Evaluation Period, Surge shall use commercially reasonable efforts to make its personnel available to respond to Customer’s questions regarding the Pilot Dataset.

6. Ownership; License; Exclusivity; Customer Materials.

(a) Surge Ownership. Surge shall retain all right, title and interest in and to each Pilot Dataset and the Surge Materials, and all modifications and derivatives of any of the foregoing, including all intellectual property rights therein, in each case excluding any Customer Materials incorporated 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 Pilot Terms are reserved by Surge.

(b) License Grant. Subject to Customer’s payment of the fees due under the applicable Order Form and Customer’s continued compliance with these Pilot Terms, Surge grants to Customer a non-transferable, non-sublicensable, revocable (as provided in Section 17) license during the Evaluation Period to use the Pilot Dataset for the Permitted Purpose.

(c) Exclusivity. Surge shall not sell, license or otherwise make available any Pilot Dataset, as delivered to Customer, to any third party. Nothing in these Pilot Terms shall restrict Surge from (i) using the Surge Materials or its general skills, knowledge and experience for any purpose; (ii) creating, using, licensing or selling any other data set, including, without limitation, any data set similar in type, subject matter or format to a Pilot Dataset, so long as such other data set is not a copy of such Pilot Dataset and does not incorporate any Customer Materials or Customer’s Confidential Information; or (iii) retaining a copy of each Pilot Dataset for its internal records and quality assurance purposes and for performance under any Commercial Agreement.

(d) Customer Materials. As between the Parties, Customer shall retain all right, title and interest in and to the Customer Materials. Customer grants to Surge and its affiliates, subcontractors and contributor workforce a non-exclusive, worldwide, royalty-free license to use, copy, store and process the Customer Materials solely to perform the applicable Pilot. Customer represents and warrants to Surge that it has all rights, consents and authorizations necessary to provide the Customer Materials to Surge for such purpose. Unless the Order Form expressly provides otherwise and the Parties have executed a data processing agreement, Customer shall not provide to Surge any personal data, protected health information or other information that is regulated under applicable privacy or data protection laws.

(e) Commercial Agreement. If the Parties enter into a Commercial Agreement, Customer’s rights to use any Pilot Dataset beyond the Permitted Purpose shall be as expressly set forth in such Commercial Agreement.

(f) Feedback. If Customer provides Surge with any suggestions, comments or other feedback concerning any Pilot, Pilot Dataset or Surge’s data or services, Surge shall have the right to use and exploit such feedback for any purpose.

7. Restrictions.

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

(a) use any Pilot Dataset for any purpose other than the Permitted Purpose;

(b) use any Pilot Dataset, in whole or in part, directly or indirectly, to train, fine-tune, post-train, distill, align or otherwise develop or improve, or to evaluate, benchmark or test the performance of, any artificial intelligence or machine learning model, including, without limitation, as training data, evaluation data, a reinforcement learning environment, a reward signal, preference data, few-shot examples or seed data for synthetic data generation;

(c) disclose, publish, distribute, sell, sublicense, rent, lease or otherwise make available any Pilot Dataset to any third party, except to Contractors solely to support Customer’s use for the Permitted Purpose;

(d) use any Pilot Dataset to create, generate, augment or improve any data set, or any product or service that competes with any Surge product or service, whether for Customer or for any third party;

(e) attempt to derive or reconstruct any Surge Materials from any Pilot Dataset;

(f) remove, obscure or alter any proprietary, confidentiality or similar notices contained in or accompanying any Pilot Dataset; or

(g) use any Pilot Dataset in violation of applicable law, including, without limitation, export control and data protection laws.

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

8. Expiration; Deletion; Certification.

(a) Cessation of Use and Deletion. Upon the expiration of the Evaluation Period for any Pilot, or upon any earlier termination thereof, Customer shall immediately cease all use of the applicable Pilot Dataset and, within ten (10) days thereafter, permanently delete or destroy all copies of such Pilot Dataset in the possession or control of Customer or its Contractors, in each case except to the extent that a Commercial Agreement expressly permits Customer’s continued use thereof.

(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 7 and 14 for so long as they are retained.

(c) 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 8.

9. Fees; Invoicing; Payment; Taxes.

Customer shall pay the fees set forth in the Order Form in full, in U.S. dollars, unless otherwise stated in the Order Form. Surge shall invoice the fees for each Pilot upon delivery of the applicable Pilot Dataset, and each invoice shall be due and payable within thirty (30) days following the date of such invoice, without set-off or deduction. If Customer requires a purchase order number or supplier registration in order to process payment, Customer shall provide or complete the same promptly following execution of the Order Form, and no delay in doing so shall extend the date on which payment shall be due. All fees are non-cancellable and non-refundable, except as expressly set forth in Section 17(b). Any amount not paid when due shall 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).

10. Order Form Execution; Authority to Bind.

Customer represents and warrants to Surge that: (a) the individual executing each Order Form has full right, power and authority to bind Customer to these Pilot Terms and the applicable Order Form; (b) such execution does not violate any agreement or obligation by which Customer is bound; and (c) Customer has authorized the purchase of the Pilot identified in the Order Form 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 Order Form, without further inquiry or investigation.

11. Mutual Representations; No Other Warranties; “As Is”.

(a) Mutual Representations. Each Party represents and warrants to the other Party that it is duly organized and in good standing under the laws of its jurisdiction of organization and has the power and authority to enter into and perform each Transaction.

(b) Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 11(a), EACH PILOT AND PILOT DATASET IS PROVIDED “AS IS” AND “AS AVAILABLE.” SURGE DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF ACCURACY, COMPLETENESS, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. CUSTOMER ACKNOWLEDGES THAT EACH PILOT IS LIMITED IN SCOPE AND THAT NO PILOT DATASET IS INTENDED TO BE REPRESENTATIVE OF THE VOLUME, TIMING OR OTHER TERMS OF ANY DATA OR SERVICES THAT SURGE MAY PROVIDE UNDER ANY COMMERCIAL AGREEMENT.

12. Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL EITHER PARTY 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 PILOT TERMS, ANY TRANSACTION, ANY PILOT OR ANY PILOT DATASET, REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO A TRANSACTION SHALL NOT EXCEED THE FEES PAID AND PAYABLE BY CUSTOMER TO SURGE UNDER THE APPLICABLE ORDER FORM. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE, BUT SHALL NOT LIMIT (A) CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 9; (B) CUSTOMER’S LIABILITY FOR ANY BREACH OF SECTION 7 OR SECTION 8, OR FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF SURGE’S INTELLECTUAL PROPERTY RIGHTS; OR (C) INDEMNIFICATION OBLIGATIONS UNDER SECTION 13.

13. Indemnification.

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, collectively, “Claims”) arising out of or relating to: (a) any breach by Customer of Section 7 (Restrictions), Section 8 (Expiration; Deletion; Certification), Section 10 (Order Form Execution; Authority to Bind) or Section 14 (Confidentiality); (b) Customer’s violation of applicable law; or (c) any Customer Materials, including, without limitation, any claim that Surge’s use of any Customer Materials in accordance with these Pilot Terms infringes, misappropriates or violates any right of a third party.

Surge shall defend, indemnify and hold harmless Customer and its Indemnitees from and against any and all Claims arising out of or relating to: (a) any breach by Surge of Section 14 (Confidentiality); (b) Surge’s violation of applicable law; or (c) any Pilot Dataset that infringes, misappropriates or violates any right of a third party.

14. Confidentiality.

(a) Confidential Information. “Confidential Information” means all non-public information disclosed by or on behalf of a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) in connection with a Transaction that is designated as confidential or that a reasonable person would understand to be confidential given the nature of the information and the circumstances of disclosure. Surge’s Confidential Information includes, without limitation, each Pilot Dataset, the Surge Materials, each Order Form and the pricing and other terms of each Transaction. Customer’s Confidential Information includes, without limitation, the Customer Materials.

(b) Obligations. The Receiving Party shall (i) hold the Disclosing Party’s Confidential Information in 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 such Confidential Information to any third party, except to its and its affiliates’ employees, contractors and, in the case of Surge, its subcontractors and contributor workforce, and, in the case of Customer, its Contractors, in each case who need to know such Confidential Information for purposes of the applicable Transaction and are bound by obligations of confidentiality at least as protective as those set forth herein; and (iii) use such Confidential Information solely as necessary to exercise its rights and perform its obligations under the applicable Transaction. Surge shall maintain reasonable administrative, technical and physical safeguards designed to protect the Customer Materials, and shall not use any Customer Materials to train any artificial intelligence model except as expressly described in the applicable Order Form.

(c) Exceptions. The obligations in Section 14(b) shall not apply to information that the Receiving Party can demonstrate: (i) is or becomes publicly available through no fault of the Receiving Party; (ii) was rightfully in the Receiving Party’s possession without confidentiality restriction prior to disclosure by the Disclosing Party; (iii) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; or (iv) is required to be disclosed by law or court order, provided the Receiving Party gives the Disclosing Party prompt written notice, to the extent legally permitted, and reasonable cooperation to seek a protective order.

(d) Return or Destruction. Upon the Disclosing Party’s written request following the expiration or termination of the applicable Transaction, the Receiving Party shall delete or destroy the Disclosing Party’s Confidential Information, subject to Sections 6(c) and 8(b) and to any retention required by law.

(e) Remedies. Each Party acknowledges that unauthorized disclosure or use of the other Party’s Confidential Information may cause irreparable harm for which monetary damages would be an inadequate remedy, and that the Disclosing Party 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.

15. Publicity.

Neither Party shall use the other Party’s name, logos or trademarks, or publicly disclose the existence or terms of any Pilot, without the other Party’s prior written consent.

16. 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 Pilot Dataset, directly or indirectly, or permit access to any Pilot Dataset by any person, in violation of applicable export control or sanctions laws.

17. Term; Termination for Breach; Survival.

(a) Term. These Pilot Terms, as incorporated into each Order Form, shall be effective upon Customer’s execution or acceptance of the applicable Order Form 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 either Party materially breaches these Pilot Terms or an Order Form and fails to cure such breach within ten (10) days after written notice from the other Party, the non-breaching Party shall have the right, but not the obligation, to terminate the affected Transaction. If Surge terminates a Transaction under this Section 17(b), Surge shall also have the right to terminate the license granted under Section 6(b), and all fees under the affected Order Form shall become immediately due and payable. If Customer terminates a Transaction under this Section 17(b) before Surge delivers the applicable Pilot Dataset, Customer shall have no obligation to pay the fees for such Pilot Dataset.

(c) Survival. Sections 1 through 4, 6(a), 6(c) through 6(f), and 7 through 23 shall survive the expiration or termination of any Transaction or license, together with any payment obligations accrued prior to such expiration or termination.

18. Assignment.

Neither Party may assign or transfer any Transaction or these Pilot Terms, in whole or in part, without the other Party’s prior written consent, except to an affiliate or to a successor in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets or of the business to which the applicable Transaction relates, provided that, in the case of any assignment by Customer, (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 Pilot Terms. Any purported assignment in violation of this Section 18 shall be void.

19. Governing Law.

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

20. Dispute Resolution; Mandatory Arbitration.

(a) Arbitration. Any dispute, claim or controversy arising out of or relating to these Pilot Terms, any Order Form or any Transaction (a “Dispute”) shall be resolved exclusively by mandatory 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 20(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 7 (Restrictions), Section 8 (Expiration; Deletion; Certification) or Section 14 (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 the Confidential Information of each Party under Section 14, except as necessary to enforce or confirm the award or as otherwise required by law.

21. Notices.

All notices under these Pilot Terms shall be in writing and delivered by email to the addresses specified in the applicable Order Form, or such other address as a Party designates by notice given in accordance with this Section 21. Notices shall be 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.

22. Updates to these Pilot Terms.

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

23. Miscellaneous.

(a) Entire Agreement. These Pilot Terms and the applicable Order Form 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 Pilot 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 Pilot Terms is held unenforceable, such provision shall be modified to the minimum extent necessary to make it enforceable, and the remaining provisions shall remain in full force and effect.

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

(e) No Third-Party Beneficiaries. There are no third-party beneficiaries to these Pilot Terms, except the Indemnitees expressly set forth in Section 13.

(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 Order Form 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 Pilot Terms.