Deep Longevity – SaaS

Last Updated:  7 February, 2024

BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THIS SUBSCRIPTION AGREEMENT OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT (THE “ORDER FORM”, AND TOGETHER WITH THIS SUBSCRIPTION AGREEMENT, THIS “AGREEMENT”), YOU AGREE YOU HAVE READ AND ARE BOUND BY THE TERMS OF THIS AGREEMENT.  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY.  IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SENOCLOCK SERVICE (AS DEFINED BELOW). 

This Subscription Agreement, by and between Deep Longevity Limited (“Deep Longevity”) and Customer, is effective as of the date set forth in the Order Form or the date on which Customer clicks a box accepting this Agreement (the “Effective Date”), and governs Customer’s use of the SenoClock Service (as defined below).  If Customer purchases a subscription to the SenoClock Service through an authorized reseller of Deep Longevity, Customer acknowledges that Deep Longevity has no obligations arising under any such agreement between Customer and such authorized reseller.

Deep Longevity reserves the right to change or modify portions of this Subscription Agreement at any time.  If Deep Longevity does so, it will post the changes on this page and will indicate at the top of this page the date this Subscription Agreement was last revised.  Deep Longevity will also notify Customer, either through an email notification or through other reasonable means.  Any such changes will become effective upon Customer’s acceptance of the same (which acceptance may be granted by clicking a box indicating acceptance of the new Subscription Agreement or by delivery of an email notification of such changes to Customer’s email address set forth in the Order Form or otherwise associated with Customer’s account without an objection to such changes issued by Customer to Deep Longevity in writing within ten (10) business days of such delivery).  Each of Deep Longevity and Customer may be referred to herein individually as a “Party” or collectively as “Parties”.  Capitalized terms used in this Subscription Agreement that are not defined herein have the meanings given in the Order Form.

1.     ACCESS TO THE SENOCLOCK SERVICE.

1.1.          Access Grant.  To the extent Customer subscribes to Deep Longevity’s proprietary software-as-a-service platform (the “SenoClock Platform”), subject to the terms and conditions of this Agreement, Deep Longevity hereby grants Customer the limited, non-exclusive, non-transferable, non-sublicensable right to access and use the SenoClock Platform during the Term (as defined below), solely in connection with the aging clocks set forth in the Order Form (each, an “Aging Clock”) for Customer’s business purposes.

1.2.          API License Grant.  To the extent Customer is subscribing to any of Deep Longevity’s proprietary application programming interfaces (the “SenoClock API”, and together with the SenoClock Platform, the “SenoClock Service”), subject to the terms and conditions of this Agreement, Deep Longevity hereby grants Customer a non-exclusive, non-sublicensable, non-transferable license to download and use the SenoClock API to (a) submit data and other content to Deep Longevity for purposes of being analyzed by the Aging Clocks and (b) receive reports from SenoClock summarizing the results thereof (“Reports”). 

1.3.          Reports.  Subject to the terms and conditions of this Agreement, Deep Longevity grants to Customer a limited, non-exclusive, non-sublicensable, non-transferable license to reproduce and create derivative works of the Reports made available to Customer via the SenoClock Service and to use such Reports, or derivatives of such Reports, for Customer’s business purposes.  Customer may not, and agrees that it will not, publish or distribute any Reports (other than to Authorized Users (as defined below)), in whole or in part, or modify or create any derivative works thereof, without Deep Longevity’s prior written consent.  If Authorized Users include Customer’s customers, Customer is granted a limited right to permit such Authorized Users to use the Reports for their personal use.

1.4.          Restrictions and Responsibilities.  Customer will not provide access to the SenoClock Service except to the authorized users set forth in the Order Form (“Authorized Users”). Customer will be liable for the acts or omissions of Authorized Users in violation of this Agreement as if they were “Customer” hereunder.  Customer will not, and will not permit any Authorized User to, use the SenoClock Service or Reports for any purpose other than the purposes expressly set forth herein.  Customer may not, nor permit any Authorized User to, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the SenoClock Service or Reports; (b) modify, translate, or create derivative works based on the SenoClock Service or Reports; (c) use the SenoClock Service for timesharing or service bureau purposes or otherwise for the benefit of a third party (other than an Authorized User); (d) remove any proprietary notices or labels or (e) use the SenoClock Service or Reports to develop or improve a product or service that is competitive to the SenoClock Service.  Customer will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the SenoClock Service, including, without limitation, modems, hardware, server, software, operating system, networking, web servers and the like.  Customer will also be responsible for maintaining the confidentiality of Customer’s and its Authorized Users’ usernames, passwords and account details, and for any actions taken by parties with access to such usernames and passwords.  Customer will not, and will ensure that its Authorized Users do not, disclose such usernames and passwords to any third parties (other than Authorized Users).  Customer will inform Deep Longevity immediately if it discovers that any such username and/or password has been disclosed or made available to a third party, or that any unauthorized third party is otherwise accessing or using the SenoClock Service.  Without limiting any other rights or remedies set forth herein or available pursuant to law, Deep Longevity may immediately suspend Customer’s or any Authorized User’s access to the SenoClock Service  if Customer is in breach of any term or condition of this Agreement.

1.5.          License to Customer Data.  Customer hereby grants to Deep Longevity a non-exclusive, royalty-free, fully paid up, non-sublicensable (except to contractors and consultants performing services on behalf of Deep Longevity), non-transferable (subject to Section 11.6) right and license to copy, distribute, display, create derivative works of and otherwise use the data and information submitted, transmitted or uploaded by Customer via the SenoClock Service (the “Customer Data”) to (a) provide the SenoClock Service and otherwise perform Deep Longevity’s obligations under this Agreement, (b) improve and develop Deep Longevity’s products and services, including by training and developing models and/or algorithms, and (c) create deidentified data (“Deidentified Data”), which Deidentified Data will not identify Customer or any individuals associated therewith.  For the avoidance of doubt, Deidentified Data is not Customer Data. Each Party will comply with its obligations under the Data Processing Addendum set forth at https://www.deeplongevity.com/senoclock/contract/dpa .

1.6.          Feedback.  Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback (“Feedback”) to Deep Longevity with respect to the SenoClock Service or Evaluation Services (as defined below).  Deep Longevity will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality.  Customer hereby grants to Deep Longevity a royalty-free, fully paid up, worldwide, transferable, sublicensable (through multiple tiers), irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback, and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.  Customer acknowledges and agrees that Feedback is not Confidential Information (as defined below).

1.7.          Evaluation Services.  From time to time, Customer may be invited to try certain services at no charge for a free trial or evaluation period or if such services are not generally available to customers (collectively, “Evaluation Services”).  Evaluation Services will be designated as beta, pilot, evaluation, trial, limited release or the like.  Evaluation Services are for Customer’s internal evaluation purposes only and, notwithstanding anything to the contrary set forth herein, are provided “as is” without warranty of any kind, and may be subject to additional terms.  Unless otherwise stated, any Evaluation Services trial period will expire sixty (60) days from the trial start date.  Deep Longevity may discontinue Evaluation Services at any time in its sole discretion and may never make them generally available.  Deep Longevity will have no liability for any harm or damage arising out of or in connection with any Evaluation Services.

1.8.          Third Party Services.  The SenoClock Service may enable access to or integration with certain third party services, products, solutions, software, application programming interfaces and/or other technology which are currently or may be in the future utilized by Customer and with respect to which Customer has a separate contractual relationship with the applicable third party (collectively, the “Third Party Services”).  The Third Party Services may also be subject to additional terms and conditions, privacy policies, or other agreements with such third party, and Customer may be required to authenticate to or create separate accounts to use Third Party Services.  Some Third Party Services may provide Deep Longevity with access to certain information that Customer has provided to such Third Party Services.  Any data, information or other materials related to Customer collected via or received by Deep Longevity from any Third Party Service will be deemed Customer Data. Deep Longevity has no control over and is not responsible for such Third Party Services, including the accuracy, availability, reliability or completeness of information shared by or available through the Third Party Services, or on the privacy practices of the Third Party Services.  Deep Longevity will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third Party Services.  Any dealings Customer has with third parties while using the SenoClock Service are between Customer and the third party.  Deep Longevity is not liable for any loss caused by or claim that Customer may have against any such third party or that arise under Customer’s agreements with any such third party.

1.9       Service Levels; Support.  Deep Longevity will use reasonable efforts consistent with prevailing industry standards to provide the SenoClock Service in a manner that minimizes errors and interruptions in accessing the SenoClock Service.  The SenoClock Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Deep Longevity or by third-party providers, or because of other causes beyond Deep Longevity’s reasonable control, but Deep Longevity will use reasonable efforts to provide advance notice in writing or by email of any scheduled service disruption within Deep Longevity’s control.  Deep Longevity will provide support for the SenoClock Service in material conformance with the service level agreement attached as Exhibit A.

2. PROFESSIONAL SERVICES.

2.1.          Statements of Work. From time to time, Deep Longevity and Customer may enter into statements of work pursuant to which Customer will engage Deep Longevity to perform professional services, each of which will be executed by an authorized representative of each Party and will reference and be governed by this Agreement (each, a “SOW”).  Each SOW will set forth the professional services to be performed by Deep Longevity (the “Professional Services”), and the fees payable by Customer to Deep Longevity in connection therewith.  Each SOW will also include the period of time that such SOW will remain in effect (subject to earlier termination as set forth herein or therein), and the applicable payment terms.

2.2.          Assistance; Delays.  Customer understands that Deep Longevity’s performance of the Professional Services is dependent in part on Customer’s actions.  Accordingly, Customer will provide Deep Longevity with the necessary items and assistance specified in the applicable SOW in a timely manner.  Any dates or time periods relevant to performance by Deep Longevity hereunder shall be appropriately and equitably extended to account for any delays or change in assumptions due to Customer.  If a Customer delay or change would materially change the economics of Deep Longevity’s performance or materially extends the time for performance, Deep Longevity may terminate the applicable SOW upon thirty (30) days’ written notice, unless within the notice period the Parties agree on mutually acceptable changes to this Agreement or the applicable SOW.

2.3.          Change Proposals.  Upon the receipt of a proposal from Customer to change the terms of an SOW (a “Change Proposal”), Deep Longevity will promptly provide (a) an impact analysis of such Change Proposal and (b) its financial impact (if any) and, upon mutual agreement, it shall be signed by the Parties in the form of a mutually agreed written amendment to an SOW.  The Parties agree that material changes to an SOW shall require a new SOW.

3. OWNERSHIP; RESERVATION OF RIGHTS.  As between the Parties, Deep Longevity retains all right, title and interest in and to the SenoClock Service and all associated intellectual property rights.  Deep Longevity grants no, and reserves any and all, rights with respect to the SenoClock Service other than the rights expressly granted to Customer under this Agreement.  As between the Parties, Customer retains all right, title and interest in and to the Customer Data.  Customer grants no, and reserves any and all, rights with respect to the Customer Data, other than the rights expressly granted to Customer under this Agreement.

4.     FEES; PAYMENT TERMS.

4.1       Subscription Fees.  Customer will pay to Deep Longevity the fees set forth in the Order Form in accordance with the payment terms set forth therein and herein. Such fees may include subscription fees as well as fees due in connection with the number of Reports generated by Customer or otherwise under Customer’s subscription.  Unless otherwise set forth in the Order Form, subscription fees will be payable annually in advance and Report fees will be payable within thirty (30) days of the end of each calendar month during the Term (including any partial months at the beginning or end of the Term). The number of Reports generated by Customer or otherwise under Customer’s subscription during each such calendar month will be determined by Deep Longevity and communicated to Customer. Notwithstanding anything to the contrary herein, if Customer has subscribed to the SenoClock Service via an authorized reseller of Deep Longevity, the foregoing terms will not apply and Customer will pay to such authorized reseller the amounts agreed between Customer and such authorized reseller, in accordance with the payment terms agreed between such parties.

4.2       Professional Services Fees.  In exchange for the Professional Services to be performed under any SOW, if applicable, Customer will pay to Deep Longevity the fees set forth in such SOW in accordance with the terms and conditions set forth in such SOW and herein. In addition, Customer will reimburse Deep Longevity for its travel and accommodation expenses incurred in connection with the performance of the Professional Services, unless otherwise set forth in the applicable SOW. 

4.3       Payment Terms.  Payment obligations are non-cancelable and all fees paid are non-refundable.  Past due amounts shall bear a late payment charge, until paid, at the rate of one and one half percent (1.5%) per month or the maximum amount permitted by law, whichever is less. If the Order Form or any SOW requires that Deep Longevity invoice Customer for any fees, Customer will pay all such invoiced amounts within thirty (30) days of receipt of the applicable invoice.

4.4       Net of Taxes.  All amounts payable by Customer to Deep Longevity hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know‑how payments, customs, privilege, excise, sales, use, value‑added and property taxes (collectively “Taxes”).  Customer will be solely responsible for payment of any Taxes, except for those taxes based on the income of Deep Longevity.  Customer will not withhold any Taxes from any amounts due Deep Longevity.

5.     TERM; TERMINATION.

5.1       Term; Termination.  This Agreement will commence on the Effective Date and continue for the initial term set forth in the Order Form (the “Initial Term”), unless otherwise earlier terminated in accordance with this Agreement.  Thereafter, this Agreement will automatically renew for renewal terms of equal duration (each, a “Renewal Term” and, together with the Initial Term, the “Term”), unless either Party provides written notice of non-renewal to the other Party at least thirty (30) days’ prior to the end of the then-current term.  Deep Longevity may increase prices for any subsequent Renewal Term by providing Customer notice of the price increase forty five (45) days’ prior to the end of the then-current term.  Either Party may terminate this Agreement or any SOW immediately by providing a written notice to the other Party if that other Party has breached any of its material obligations and has not fully cured the breach within thirty (30) days after it has been given an initial written notice specifying the breach.  Each SOW will continue until the completion of the Professional Services described therein (or until the expiration of any express SOW term set forth therein), unless earlier terminated in accordance with this Agreement or such SOW.

5.2       Effect of Termination.  In the event that this Agreement expires or is terminated for any reason, (a) all rights granted to Customer with respect to the SenoClock Service will immediately terminate, (b) Deep Longevity will cease providing Customer with the Professional Services, if applicable, and all SOWs will immediately terminate, and (c) Customer will (i) cease use of the SenoClock Service, and (ii) pay to Deep Longevity all amounts due and owing under this Agreement and all SOWs (to the extent not previously paid).  In addition, upon expiration or termination of this Agreement, each Recipient (as defined below) will return to the Discloser (as defined below) or destroy, at the Discloser’s election, all of the Discloser’s Confidential Information and all copies or other tangible embodiments thereof.

5.3       Survival.  Upon expiration or termination of this Agreement, all obligations in this Agreement will terminate, provided that Sections 1.4 (Restrictions and Responsibilities), 1.6 (Feedback), 3 (Ownership; Reservation of Rights), 4 (Fees; Payment Terms), 5 (Term; Termination), 6 (Confidentiality), 7.2 (Disclaimers), 8 (Limitations of Liability), 9 (Indemnification) and 11 (General) will survive. 

6.     CONFIDENTIALITY.

6.1       Definition of Confidential information.  “Confidential Information” means, subject to the exceptions set forth in Section 6.2 hereof, any information or data or materials, regardless of whether it is in tangible form, that is disclosed or otherwise made available by a Party (the “Discloser”) to the other Party (the “Recipient”) and that (a) the Discloser has marked as confidential or proprietary, or (b) the Discloser identifies as confidential at the time of disclosure with written confirmation within fifteen (15) days of disclosure to the Recipient; provided, however, that reports and/or information related to or regarding the Discloser’s business plans, business methodologies, strategies, technology, specifications, development plans, customers, prospective customers, partners, suppliers billing records, and products or services will be deemed Confidential Information of the Discloser even if not so marked or identified, unless such information is the subject of any of the exceptions set forth in Section 6.2 hereof.

6.2       Exceptions to Confidential Information.  Confidential Information will not include any information which: (a) the Recipient can show by written record was in its possession prior to disclosure by the Discloser hereunder, provided that the Recipient must promptly notify the Discloser of any prior knowledge; (b) is or becomes generally known by the public other than through the Recipient’s failure to observe any or all terms and conditions hereof; or (c) subsequent to disclosure to the Recipient by the Discloser, is obtained by the Recipient from a third person who is not subject to any confidentiality obligation in favor of Discloser.

6.3       Use and Disclosure of Confidential Information.  The Recipient may only use the Confidential Information for the purpose of performing its obligations and exercising its rights hereunder.  The Recipient must keep secret and will never disclose, publish, divulge, furnish or make accessible to anyone any of the Confidential Information of the Discloser, directly or indirectly, other than furnishing such Confidential Information to (a) the Recipient’s employees and contractors who are required to have access to such Confidential Information in connection with the performance of the Recipient’s obligations, or the exercise of the Recipient’s rights, hereunder, and (b) professional advisers (e.g., lawyers and accountants), in each case, during the time that the Recipient is permitted to retain such Confidential Information hereunder; provided that any and all such employees or contractors are bound by written agreements or, in the case of professional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this Agreement.  The Recipient will use at least reasonable care and adequate measures to protect the security of the Confidential Information of the Discloser and to ensure that any Confidential Information of the Discloser is not disclosed or otherwise made available to other persons or used in violation of this Agreement.

6.4       Disclosures Required by Law.  In the event that the Recipient is required by law to make any disclosure of any of the Confidential Information of the Discloser, by subpoena, judicial or administrative order or otherwise, the Recipient will first give written notice of such requirement to the Discloser, and will permit the Discloser to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Discloser in seeking to obtain such protection.

7.     REPRESENTATIONS AND WARRANTIES; DISCLAIMER.

7.1       Mutual Representations and Warranties.  Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder, (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party, and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties.  In addition, Deep Longevity represents, warrants and covenants that all Professional Services will be performed in a professional and workmanlike manner, and Customer represents, warrants and covenants that (i) it has all rights necessary to permit Deep Longevity to use the Customer Data as contemplated hereunder and (ii) the Customer Data will be true, accurate and complete.

7.2       Disclaimers.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SENOCLOCK SERVICE AND THE PROFESSIONAL SERVICES ARE PROVIDED ON AN “AS-IS” BASIS AND DEEP LONGEVITY DISCLAIMS ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER.  DEEP LONGEVITY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT.  DEEP LONGEVITY DOES NOT WARRANT THAT THE SENOCLOCK SERVICE IS ERROR-FREE OR THAT OPERATION OF THE SENOCLOCK SERVICE WILL BE SECURE OR UNINTERRUPTED.

8. LIMITATIONS OF LIABILITY.

8.1       Disclaimer of Consequential Damages.  EXCEPT FOR LIABILITY ARISING FROM (A) CUSTOMER’S BREACH OF SECTION 1.4 (RESTRICTIONS AND RESPONSIBILITIES) ABOVE AND (B) EITHER PARTY’S BREACH OF SECTION 6 (CONFIDENTIALITY) ABOVE, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF A PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.

8.2       General Cap on Liability.  EXCEPT FOR LIABILITY ARISING FROM (A) CUSTOMER’S BREACH OF SECTION 1.4 (RESTRICTIONS AND RESPONSIBILITIES) ABOVE, (B) EITHER PARTY’S BREACH OF SECTION 6 (CONFIDENTIALITY) ABOVE, AND (C) A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTIONS 9.1 AND 9.2 BELOW, AS APPLICABLE, UNDER NO CIRCUMSTANCES WILL EITHER PARTY’S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE AGGREGATE FEES PAID BY CUSTOMER TO DEEP LONGEVITY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.  THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. 

8.3       Independent Allocations of Risk.  EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES.  EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.

9.     INDEMNIFICATION.

9.1.          Indemnification by Deep Longevity.  Deep Longevity will indemnify, defend and hold Customer and the officers, directors, agents, and employees of Customer (“Customer Indemnified Parties”) harmless from settlement amounts and damages, liabilities, penalties, costs and expenses (“Liabilities”) that are payable to any third party by the Customer Indemnified Parties (including reasonable attorneys’ fees) arising from any claim, demand or allegation by a third party that the SenoClock Service infringes or misappropriates any United States copyright or trade secret (except for claims for which Deep Longevity is entitled to indemnification under Section 9.2, in which case Deep Longevity will have no indemnification obligations with respect to such claim).  Deep Longevity will have no liability or obligation under this Section 9.1 with respect to any Liability if such Liability is caused in whole or in part by: (a) modification of the SenoClock Service by any party other than Deep Longevity; (b) the combination, operation, or use of SenoClock with other product(s), data or services where the SenoClock Service would not by itself be infringing; or (c) unauthorized or improper use of the SenoClock Service.  This Section 9.1 states Deep Longevity’s entire obligation and Customer’s sole remedies in connection with any claim regarding the intellectual property rights of any third party.

9.2.          Indemnification by Customer.  Customer will indemnify, defend and hold Deep Longevity and the officers, directors, agents, and employees of Deep Longevity (“Deep Longevity Indemnified Parties”) harmless from Liabilities that are payable to any third party by the Deep Longevity Indemnified Parties (including reasonable attorneys’ fees) arising from, directly or indirectly, any claim, demand or allegation by a third party that arises out of or is in connection with (a) any use by Customer of the SenoClock Service in violation of this Agreement, (b) the Customer Data, including Deep Longevity’s use of the Customer Data in accordance with this Agreement, (c) Customer’s use of the Reports or any derivatives thereof, or (d) Customer’s violation of any terms and conditions related to and/or governing use of any Third Party Services.

9.3.          Action in Response to Potential Infringement.  If the use of the SenoClock Service or any portion thereof by Customer has become, or in Deep Longevity’s opinion is likely to become, the subject of any claim of infringement, Deep Longevity may at its option and expense (a) procure for Customer the right to continue using the SenoClock Service as set forth hereunder; (b) replace or modify the SenoClock Service to make it non-infringing so long as the SenoClock Service has at least equivalent functionality; (c) substitute an equivalent for the SenoClock Service or (d) if options (a)-(c) are not reasonably practicable, terminate this Agreement.

9.4.          Indemnification Procedure.  If a Customer Indemnified Party or a Deep Longevity Indemnified Party (each, an “Indemnified Party”) becomes aware of any matter it believes it should be indemnified under Section 9.1 or Section 9.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an “Action”), the Indemnified Party will give the other Party (the “Indemnifying Party”) prompt written notice of such Action.  The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing.  Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.

10.  GOVERNMENT MATTERS.  Customer may not remove or export from the United States or allow the export or re-export of the SenoClock Service, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  As defined in FAR section 2.101, the SenoClock Service (including the software, documentation and data related thereto) are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

11.  GENERAL.

11.1.       Force Majeure.  No Party hereto will have any liability under this Agreement for such Party’s failure or delay in performing any of the obligations imposed by this Agreement to the extent such failure or delay is the result of any event beyond such Party’s reasonable control, including: (a) any fire, explosion, unusually severe weather, natural disaster or Act of God; (b) epidemic; any nuclear, biological, chemical, or similar attack; any other public health or safety emergency; any act of terrorism; and any action reasonably taken in response to any of the foregoing; (c) any act of declared or undeclared war or of a public enemy, or any riot or insurrection; (d) damage to machinery or equipment; any disruption in transportation, communications, electric power or other utilities, or other vital infrastructure; or any means of disrupting or damaging internet or other computer networks or facilities; (e)  any strike, lockout or other labor dispute or action; or (f) any action taken in response to any of the foregoing events by any civil or military authority.

11.2.       Severability.  In the event that any provision of this Agreement is found to be unenforceable, such provision will be reformed only to the extent necessary to make it enforceable, and the remainder will continue in effect, to the extent consistent with the intent of the Parties as of the Effective Date.  The terms and conditions of this Agreement are severable.  If any term or condition of this Agreement is deemed to be illegal or unenforceable under any rule of law, all other terms will remain in force.  Further, the term or condition which is held to be illegal or unenforceable will remain in effect as far as possible in accordance with the intention of the Parties as of the Effective Date.

11.3.       Relationship of the Parties.  Nothing in this Agreement will be construed to place the Parties in an agency, employment, franchise, joint venture, or partnership relationship.  Neither Party will have the authority to obligate or bind the other in any manner, and nothing herein contained will give rise or is intended to give rise to any rights of any kind to any third Parties.  Neither Party will represent to the contrary, either expressly, implicitly or otherwise.

11.4.       Remedies.  Each Party acknowledges that a breach by it of any of the terms of Section 6 may cause irreparable harm to the Discloser for which Discloser could not be adequately compensated by money damages.  Accordingly, Recipient agrees that, in addition to all other remedies available to Discloser in an action at law, in the event of any breach or threatened breach by the Recipient of the terms of this Agreement, the Discloser may seek, from any court of competent jurisdiction and without the necessity of proving actual damages or posting any bond or other security, temporary and permanent injunctive relief, including specific performance of the terms of Section 6.

11.5.       Governing Law; Consent to Jurisdiction.  The law, including the statutes of limitation, of the State of Delaware will govern this Agreement, the interpretation and enforcement of its terms and any claim or cause of action (in law or equity), controversy or dispute arising out of or related to it or its negotiation, execution or performance, whether based on contract, tort, statutory or other law, in each case without giving effect to any conflicts-of-law or other principle requiring the application of the law of any other jurisdiction.  Each of the Parties hereto hereby irrevocably and unconditionally consents to submit to the sole and exclusive jurisdiction of the courts of the State of Delaware and of the United States of America for any litigation among the Parties hereto arising out of or relating to this Agreement, or the negotiation, validity or performance of this Agreement, waives any objection to the laying of venue of any such litigation in such courts and agrees not to plead or claim in any such court that such litigation brought therein has been brought in any inconvenient forum or that there are indispensable parties to such litigation that are not subject to the jurisdiction of such courts.

11.6.       Assignment; Delegation; Binding Effect.  Neither Party may assign or transfer this Agreement in whole or in part, by operation of law or otherwise, without the prior written consent of the other Party, except that either Party may assign or transfer this Agreement without the written consent of the other Party to an affiliate or corporation or other business entity succeeding to all or substantially all the assets and business of the assigning Party to which this Agreement relates by merger or purchase.  Deep Longevity may delegate its duties hereunder to any of its affiliates as necessary to perform its obligations hereunder, provided that Deep Longevity will bear full liability and responsibility for their acts and omissions.  Any attempted assignment, delegation or transfer by a Party in violation hereof will be null and void.  Subject to the foregoing, this Agreement will be binding on the Parties and their successors and permitted assigns.

11.7.       Notices.  All notices under this Agreement will be in writing and will reference this Agreement.  Notices will be deemed given: (a) when delivered personally; (b) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; (c) by email for which receipt is confirmed or (d) one (1) day after deposit with an internationally recognized commercial overnight carrier, with written verification of receipt.  All Deep Longevity notices to Customer will be sent to the address provided on the Order Form or otherwise associated with Customer’s account, and all Customer notices to Deep Longevity will be sent to the address provided on the Order Form, or if there is no Order Form between Customer and Deep Longevity, to 8F Floor, Henley Building, 5 Queens Road, Central, Hong Kong provided, that each Party may update its notice address by providing written notice to the other Party in accordance with this Section 11.7.

11.8.       No Waiver.  Failure by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.

11.9.       Complete Agreement.  This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof.  It supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter, and prevails over any conflicting terms or conditions contained on printed forms submitted with purchase orders, sales acknowledgments or quotations.  To the extent of any conflict or inconsistency between the provisions in the body of this Subscription Agreement and the Order Form or SOW, if any, the terms of this Subscription Agreement will prevail, unless the Order Form or SOW, as applicable, expressly amends a provision in this Subscription Agreement.

SUBSCRIPTION AGREEMENT

Exhibit A

Service Level Agreement

The subscriber shall report any problems with Deep Longevity SenoClock portal via email to [email protected]. Support services will be available from 8:00-17:00 CET on weekdays. Deep Longevity shall handle incidents according to the priorities and deadlines outlined below. Response and Resolution hours are office / working hours.

The first response and resolution deadlines shall be calculated from the receipt of the notification. If the notification is sent outside the standard support service hours, the response and resolution deadlines shall be calculated from the time the standard support service is available to the Company.

The Subscriber is aware that some of the requests may require further investigation and/or internal escalation from Provider’s specialists. The resolution of such issues may be dependent on the availability of the diagnostics information from the Subscriber, and the Subscriber shall cooperate with Provider to ensure timely resolution of issues and problems. In this case, Provider shall monitor events at every stage throughout the diagnostic process and keep the Subscriber informed of the progress.

Any updates extending the functions of the services purchased as part of this Agreement hereto will be available to the Company until the end of the paid period.