Alivo, Inc. (“Alivo,” “we,” “us,” or “our”) provides and makes available its automated communication platform (the “Platform”) and any related services (each a “service”, and collectively the “services”) according to these Terms of Service and License Agreement (collectively, the “Terms”). These Terms apply to any use of our Platform and by accessing, browsing, or otherwise using the Platform or any of our services, you acknowledge that you have read, understood, and agree to be bound by these Terms. Please read them carefully. If you do not agree to and accept these Terms, you shall not access, browse, or use the Platform. Your use of the services is also subject to any terms, policies or rules that we may post or provide a link to on our website, including Alivo’s Privacy Policy, as may be amended from time to time. All such terms, policies and rules are considered part of these Terms and are expressly included by reference.

1. Description of our Services

Alivo’s Platform is an AI-powered business communication tool that allows you to capture potential leads, communicate with leads and customers, and automate portions of the sales process. In addition to these Terms, the Platform is subject to the following requirements and restrictions:

• Only adults 18 and older in the United States may use the Platform.
• You must create an account with Alivo and provide information about your business.
• You must only use the Platform for commercial purposes and not for any personal communications.
• You must supply Alivo with accurate and up-to-date payment information and maintain timely payments for the subscription.
• You must use the Platform only for lawful purposes and in compliance with all applicable laws and regulations within the United States, including federal and state marketing and telecommunication laws and regulations.
• You acknowledge that messaging fees imposed by mobile service providers may apply to communications sent by our Platform. Please note that these fees are not within our control and may vary based on the carrier and messaging plan chosen by the recipients of the messages. You agree that you are solely responsible for any messaging fees incurred by your end users. We strongly advise you to inform your end users about the potential fees associated with text messaging and encourage them to consult with their mobile service provider to understand the specific charges applicable to their messaging plan.
• You acknowledge that any lead sources, including those provided by the Platform, comply with opt-in requirements for text messaging and include appropriate opt-in and opt-out language as part of the opt-in process.

2. Limitations on the Scope of Our Services

3. Payment Terms, Renewals, and Discounts

a. Annual Subscription. – Alivo offers the Platform and each tier of its services on an annual subscription basis with automatic renewals (the “Initial Term”). A minimum 3-month commitment is required during the Initial Term. The Initial Term will commence on the date that you first subscribe to the Platform and unless terminated in accordance with these Terms, will continue thereafter for a period of one (1) year. If you opt to pay monthly as set forth below, the fees owed for the first month of your Initial Term will be prorated based on the number of days remaining in such month, provided, however, that any pro-rated month shall not count towards Alivo’s minimum 3-month commitment. At the end of the Initial Term, your subscription will automatically renew for an additional one (1) year term (the “Renewal Term”, and, together with the “Initial Term,” collectively the “Term”), unless you provide Alivo with a notice of non-renewal at least (30) days prior to the end of the then current Term.

b. Payment Terms. In addition to your initial onboarding fee, you may pay for the Platform and our services on a monthly or yearly basis (each a “Billing Cycle”), provided that Alivo may apply a surcharge to monthly Billing Cycles at its discretion. Payment for the Platform and its services must be made in advance of your subscription. Alivo will provide you with and/or make available invoices for each Billing Cycle. Alivo reserves the right to amend its pricing at its discretion at any time and without prior notice, provided, however, that Alivo will provide you with notice of any price increase at least 30 days prior to the end of the then current Term, and you will have the opportunity to review and accept the new price before the automatic renewal takes place. Alivo may offer discounts in its sole discretion. Any discount is solely redeemable for a reduction in the price of our services and is not redeemable for cash or any other form of remuneration. Alivo requires that all payments be processed via our secure online payment portal, which accepts a wide array of major credit cards or alternatively, bank transfer payments may be permitted solely at our discretion (each a “Payment Method”).

You hereby authorize the Payment Method to be used automatically for your payment responsibilities to Alivo. You will be billed automatically on the first calendar day of your Billing Cycle. Your Billing Cycle will begin on the day of your onboarding call or 30 days after your onboarding payment is made, whichever comes first. If you need to reschedule your onboarding call, you must provide at least 4 hours notice ahead of time. If a credit card account is used for your subscription, Alivo may obtain preapproval for an amount up to the amount of your payment. If you wish to designate a different payment method or if there is a change in your Payment Method information, you must update your information using the secure online payment portal which can be made available to you by reaching out to your account manager, which may temporarily delay your ability to make payments while Alivo and/or its service providers verify the new payment information. In accordance with our Privacy Policy, if applicable to your level of service, you agree that we may pass your credit card information and related personal information to our designated service provider(s) for their use in charging you for the services ordered by you.

You represent and warrant that: (i) any credit or debit card or bank information that you supply is true, accurate and complete, (ii) charges you incur will be honored by your credit/debit card company, (iii) you will pay the charges incurred in the amounts posted, including any applicable taxes, and (iv) you are authorized to make a purchase or other transaction with the relevant credit/debit card and information. You agree and authorize the Payment Method to be billed automatically in accordance with these Terms in an amount equal to the applicable fee and taxes in effect at such time. It is your responsibility to update and/or notify Alivo of any changes to your Payment Method. If Alivo is unable to process your Payment Method during any Billing Cycle, your access to the Platform and its services may be immediately suspended or terminated at our discretion until the overdue balance is paid. In such event, Alivo reserves the right to apply a late fee of 1.5% per month for any overdue balance(s).

c. Cancellations; No Refunds. Subject to Alivo’s minimum 3-month subscription commitment, you may cancel your subscription at any time upon written notice to Alivo. Cancellation will only take effect upon the end of your then current Billing Cycle, either monthly or yearly, provided that should you cancel during the first 3-months of your Initial Term, you will remain responsible for any unpaid fees for the remainder of such 3-month term. During such period, you will retain access to and the right to use the Platform and its services as specified in these Terms. Following termination of your subscription, you will immediately cease all use of and all access to the Platform and you will have no further access to any data, information, or filed we have stored on your behalf, except as may be required by applicable law or court orders. For the avoidance of doubt, should you cancel your subscription at any time during the first 3 months of your Initial Term, you will remain responsible for the payment of any amounts due for the remainder of such 3-month term, but will retain access to the Platform and our services during that time.

d. Termination by Alivo. Alivo may terminate your license to access the Platform as follows:

i. If you breach these Terms in any respect; or

ii. If you and/or your company files or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.

iii. In the event that Alivo ceases operations, goes out of business, or undergoes bankruptcy proceedings, we will provide you with reasonable notice and an opportunity to retrieve any data or content specific to your account, to the extent feasible, subject to legal and operational constraints. Alivo shall not be liable for any loss of data or content in such circumstances.

4. User Account

You must create a user account with Alivo (your “Account”) in order to access the Platform and our services. You must create a username and password to protect and access your Account or sign in using a supported third-party authentication provider. You represent and warrant that the information you provide to us is accurate and complete and that you will promptly update your Account if any of the information changes. You are solely responsible for keeping your login credentials confidential and you accept responsibility for all activities undertaken using your Account. You must immediately notify Alivo of any unauthorized use of your Account. We may refuse to grant you login credentials that are already in use, impersonate someone else, are or may be illegal, are or may be protected by trademark or other proprietary rights, are vulgar or otherwise offensive, or may cause confusion, as determined by us in our sole discretion. Similarly, we may terminate your Account if you are in breach of applicable laws, these Terms, or any other applicable Alivo policies. We may, at our discretion, allow you to authorize other users to access and use your Account on your behalf. These additional users, including yourself, will be referred to collectively as “Authorized Users.” It is your responsibility to ensure that each Authorized User adheres to these Terms and properly uses your Account. You bear full responsibility for the actions of each Authorized User, including their compliance with and any violations of the these Terms.

5. Platform Requirements

The Platform is for use only by adults who are 18 years of age or older and who reside in the United States. Users under the age of 18 may not use the Platform or any of our affiliated websites or applications. By using the Platform or any affiliated website or application, you represent that you are 18 years of age or older and that any contact information uploaded to the system is owned by someone 18 years of age or older. You also agree that you will not use the Platform or any affiliated website or application or access the services for any purpose that is unlawful, unethical or in violation of these Terms. You are solely responsible for obtaining and maintaining, at your own expense, all equipment and services necessary to access the Platform over the internet. Any assistance or guidance provided by Alivo in the setup, configuration, or support of the Services is not legal advice.

6. Limitations on Your Use of the Platform

You agree that you and any Authorized User(s) will not do any of the following:

• Take any action that imposes an unreasonable load on the Platform’s infrastructure.
• Use any device, software, or routine to interfere or attempt to interfere with the proper operation of the Platform or any activity being conducted on the Platform.
• Attempt to disrupt, interfere with, or otherwise harm the Platform or its servers or networks.
• Delete or alter any content made available on the Platform by Alivo or any other person or entity.
• Use the Platform to gain unauthorized access to the computer systems or networks of others.
• Attempt to gain unauthorized access to the Platform, access another user’s login credentials, or access accounts that have been canceled or terminated.
• Use the Platform for any unlawful marketing and/or telecommunications activities, including, but not limited to, sending unsolicited marketing messages, engaging in fraudulent or deceptive marketing practices, and violating any applicable federal, state, or international laws and regulations governing marketing and telecommunications.
• Upload or provide Alivo with any trademarks, branding, logos, signs, or other content that infringes the intellectual property rights of any third parties.

7. Privacy

Alivo recognizes the importance of privacy and respects your desire to store and access your personal information in a private and secure manner. Our Privacy Policy describes how we collect, use, and disclose your personal information. We are committed to providing you with a secure, user-controlled Platform to access our services but at the same time, you share responsibility for maintaining your privacy and security, and we ask that you keep your username and password secure and not share that information with any third parties. We encourage you to familiarize yourself with our Privacy Policy for more details about what personal information we collect, process, and disclose, and how we protect your information. To access the Platform and use our services you hereby agree to our Privacy Policy, which is expressly incorporated into these Terms by reference.

8. Intellectual Property Ownership; License; Use of the Platform and Services

The Platform, all its content, our services, all functionality thereof, including but not limited to, all information software, code, text displays, graphics, photographs, video, audio, design, selection, and arrangement, and any other intellectual property and other rights relating to the foregoing are and will remain the property of Alivo, its licensors and suppliers, as applicable. The Platform, all its content, and the services are protected by U.S. and international copyright, trademark, and other laws. You acknowledge that the Platform, our services, its original content (excluding content provided by users, if applicable), features, and functionality are and will remain the exclusive property of Alivo and its licensors. Nothing in these Terms gives you a right to use the Alivo name or any of the Alivo trademarks, logos, domain names, and other distinctive brand features, whether for commercial or non-commercial use, without our express written permission. Any use of the Platform and our services not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, and other laws. If you print, copy, modify, download, or otherwise use or provide any other person with access to any part of the Platform in breach of these Terms, your right to use the Platform will cease immediately, without notice, and you must, at our option, return or destroy any copies of the materials you have made.

Subject to these Terms and the foregoing paragraph, Alivo hereby grants you a non-exclusive, non-transferable, non-sublicensable, and revocable license to access and use the Platform for your commercial use, strictly in accordance with these Terms and any other applicable documentation. Notwithstanding the foregoing and except as may be expressly permitted by applicable law or the Platform, you shall not or attempt to:

(a) copy the Platform except as expressly permitted by these Terms; (b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Platform or the services offered thereunder; (c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Platform or any part thereof; (d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Platform; (e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform or our services, or any other features or functionality of the Platform, to any third party for any reason, including by making the Platform available on a network where it is capable of being accessed by more than one device at any time, except as otherwise provided for in these Terms; (f) use any robot, spider, or other automatic device, process, or means to access the Platform for any purpose, including monitoring or copying any of the material on the Platform; (g) use any manual process to monitor or copy any of the material on the Platform, or for any other purpose not expressly authorized in these Terms, without Alivo’s prior written consent; (h) frame, mirror, or otherwise incorporate the Platform, or any portion of the Platform, as part of any other mobile application, website, or service; (i) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Platform; (j) access or use the Platform, or our services for purposes of competitive analysis of the Platform or our services, or the development, provision, or use of a competing platform or service; (k) use any of the Platform’s application programming interfaces (“APIs”) in any manner not expressly authorized by Alivo, including to develop applications or services that offer or promote services that could be used a substitute for, or compete with, any services offered by Alivo; (l) tamper with, or use non-public areas of the Platform, or the computer or delivery systems of Alivo and/or its service providers; or (m) probe, scan, or test any system or network, or otherwise attempt to breach or circumvent any security or authentication measures.

All rights not expressly granted herein are expressly reserved to Alivo, and its licensors and suppliers as applicable. Any violation and/or attempted violation of these intellectual property rights may result in severe civil and criminal penalties, including damages, monetary penalties, and potential criminal prosecution under federal law, the laws of the State of Delaware, and any other applicable laws and regulations. By using the Platform and our services, you agree to respect these intellectual property rights and to refrain from any activity that would infringe upon these rights. In addition, Alivo reserves the right to terminate your subscription and access to the Platform, without notice, for any attempt or violation of the intellectual property rights of Alivo set forth in these Terms.

9. Trademark Notices

Any and all trademarks, service marks, and logos used on our Platform, whether registered or unregistered, are owned by Alivo, its licensors, suppliers and others. Except as provided herein, you may not use or display any trademarks, service marks, logos or designs used on our Platform without prior written consent from the rightful owner(s).

10. Compliance with Laws

At all times, you shall comply with all federal, state, and local laws, ordinances, regulations, and orders that are applicable to these Terms and your use of the Platform and our services, including but not limited to laws and regulations pertaining to data privacy, the transmission of personal information, telecommunications, and applicable marketing and advertising laws and regulation. Without limiting the generality of the foregoing, you agree that you will at all times and at your own expense, obtain and maintain all certifications, credentials, authorizations, consents, permissions, licenses, and permits necessary to your performance of your obligations under these Terms.

Your obligations under this Section 10 include, but are not limited to, the following:

• Complying with all U.S. telecommunications laws and regulations, including adherence to the requirements of the Federal Communications Commission (FCC).
• Ensuring your communication campaigns are in compliance with all relevant U.S. marketing laws and regulations, including but not limited to the CAN-SPAM Act, the TCPA, and other laws regulating commercial electronic marketing messages.
• Maintaining adherence to any and all U.S. data protection and privacy laws applicable to your operations.

You acknowledge and understand that Alivo merely provides the platform for communications, and that Alivo does not create or control the content of your communications or your decision to send such communications to potential customers. You agree that you are solely responsible for the content of your communications and for complying with all applicable laws and regulations relating to your use of our Platform for your communications. This applies to all forms of communication facilitated by our Platform, including but not limited to text messages, calls, emails, and social media outreach, whether they be outbound campaigns, inbound campaigns, or any other types of campaigns.

11. TCPA Compliance

The federal Telephone Consumer Protection Act (the “TCPA”) protects consumers from unsolicited calls or text messages. To comply with the TCPA, businesses must obtain consumers’ express written consent prior to sending automated marketing communications via SMS or calls (an “opt-in”). In certain circumstances, Alivo will obtain your customers’ opt-ins on your behalf, such as when customers request information directly from your website or other lead generation sources. However, when adding customer contacts directly to our Platform, you expressly represent and warrant that you have obtained all necessary opt-ins from your customer contacts as per applicable law and regulations, including the TCPA. You understand, acknowledge, and agree that any unsolicited marketing communications sent to customers who have not opted in may result in severe penalties under law. You accept full responsibility for obtaining opt-ins for your customers and for indemnifying Alivo in accordance with Section 17 below for your failure to obtain opt-ins when required or requested by the Platform.

12. A2P 10DLC Registration and Representative Consent

A2P (Application to Person) 10DLC (10-digit long code) is the standard that United States telecommunications carriers have put in place to ensure that SMS traffic to U.S. end-users through long code phone numbers is verified and consensual. To ensure the proper operation of the Platform and the delivery of our services, including sending SMS communications to your customers on your behalf, Alivo requires that you and your business be registered for A2P 10DLC through our third-party service provider Twilio. By agreeing to these Terms and using our Platform, you hereby acknowledge and agree as follows:

• You agree to permit Alivo to register you and your business for A2P 10DLC through our service provider Twilio.
• You agree to provide Alivo with links to and/or copies of your website terms and conditions, privacy policy, and any related documents that are required as part of registering for A2P 10DLC (collectively, “A2P 10DLC Registration Documentation”). You are solely responsible for all A2P 10DLC Documentation provided to Alivo and Alivo assumes no responsibility or liability for any defects, omissions, or errors in your A2P 10DLC Registration and for any consequences that may result from such errors, including loss of service or the cancellation of your A2P 10DLC registration.
• You consent to and agree to act as the A2P 10DLC “Authorized Representative” for your company with Twilio and receive updates and notices about your A2P 10DLC registration. You acknowledge that these updates may include changes to the services, updates on the registration process, and legal notices. You understand and accept that as the Authorized Representative, you have the legal authority to represent your company in dealings with Alivo and with respect to the A2P 10DLC service. You agree to accept any legal and regulatory responsibilities associated with this representation.
• You agree to use only the telephone number(s) specified for your brand and business during customer onboarding and used as part of your A2P 10DLC registration. This requirement is in accordance with the A2P 10DLC regulations and is crucial for maintaining the validity and legality of your campaigns and SMS communications.
• You acknowledge and understand that using a phone number outside of its registered use case could result in penalties, including, but not limited to, a decrease in your trust score, suspension or termination of your registration with A2P 10DLC, and potential legal repercussions. Alivo is not responsible for or liable for any consequences resulting from a failure to comply with this provision. It is your responsibility to ensure that your phone number usage aligns with the registered use case for each campaign you create.
• You acknowledge and accept responsibility for the accuracy of the information you provide as part of your registration for the A2P 10DLC service. This includes, but is not limited to, your business’s legal name, phone numbers, brand details, campaigns, privacy policy, and terms of use. You agree to provide information that is truthful, accurate, and complete and corresponds to the legal entity of your business. Alivo is not responsible or liable for failed registrations or trust scores that do not meet your expectations. You assume all risks and potential damages associated with your A2P 10DLC registration and resulting trust scores. Any grievances, queries, or issues regarding the registration process or trust scores must be addressed directly with the A2P 10DLC service.
• You agree to promptly notify Alivo of any changes in your A2P 10DLC registration information. Your failure to maintain accurate information may result in termination or suspension of your access to the Platform or our services without notice. Alivo is not responsible for any loss or issues resulting from your failure to comply with this requirement.

13. Third-Party Websites

The Platform and related websites operated by Alivo may contain information about, links to, or advertisements for websites operated by third parties (“Third Party Websites”) and communications sent to users of the Platform may contain information about, links to, or advertisements for Third Party Websites. Information regarding Third Party Websites is provided for your convenience only, and we do not control such Third Party Websites. Alivo is not responsible for the content and performance of Third Party Websites or for any transactions you may choose to conduct with the operators of those websites. Alivo is not responsible for the content of linked Third Party Websites, sites framed within the Platform, or third-party advertisements featured on the Platform, our websites, or in emails sent from the Platform, and Alivo does not make any representations regarding their content or accuracy. Your use of Third Party Websites is at your own risk and subject to the terms and conditions of use of such sites. You acknowledge and agree that Alivo has no liability for any damage or loss arising from your access to, use of or reliance on any Third Party Website, software, data, or other information.

14. Intended Audience

Our Platform is expressly intended for use only within the United States and is maintained by Alivo from its offices within the United States. Any usage outside of the United States is strictly prohibited and may result in the immediate termination or suspension of your access to the Platform and our services. The Platform, our software, technology and other information regarding the Platform are further subject to United States export controls. No software, technology or other information from the Platform may be downloaded or otherwise exported or re-exported to any person or entity on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders or otherwise prohibited by United States export control laws. By downloading or otherwise using any software, technology or other information from the Platform in any manner whatsoever, you represent and warrant that you are not on any such list or located in, under the control of, or a national or resident of any such country.

15. Warranty Disclaimer

THE PLATFORM, ITS CONTENT, AND OUR SERVICES ARE PROVIDED TO YOU “AS IS,” “AS AVAILABLE,” WITH ALL FAULTS AND DEFECTS, AND WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, ALIVO, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE PLATFORM, OUR SERVICES, AND ALL CONTENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, ALIVO PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE PLATFORM, ITS CONTENT, OR OUR SERVICES WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR LIMITATIONS ON IMPLIED WARRANTIES OR THE LIMITATIONS ON THE APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO SOME OR ALL OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

16. Limitation of Liability

ALIVO ASSUMES NO RESPONSIBILITY FOR ANY CONSEQUENCE RELATING DIRECTLY OR INDIRECTLY TO ANY ACTION OR INACTION YOU TAKE BASED ON OUR PLATFORM, OUR SERVICES, OR OTHER PLATFORM CONTENT. YOU MUST EVALUATE AND BEAR ALL RISKS ASSOCIATED WITH THEIR USE, INCLUDING ANY RELIANCE ON THEIR ACCURACY, COMPLETENESS OR USEFULNESS.

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL ALIVO, ITS AFFILIATES, OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR: (A) PERSONAL INJURY, PROPERTY DAMAGE, LOST PROFITS, COST OF SUBSTITUTE GOODS OR SERVICES, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES; (B) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR ALIVO DATA, OTHER PLATFORM CONTENT, OR ANY COMMUNICATIONS BETWEEN YOU AND ALIVO OR OUR PLATFORM, THE STATEMENTS OR CONDUCT OF YOU OR ANY OTHER USER ON OUR PLATFORM, OR ANY OTHER MATTER RELATING TO OUR PLATFORM OR THE SERVICES; OR (C) DIRECT DAMAGES IN AMOUNTS THAT, IN THE AGGREGATE, EXCEED THE AMOUNTS ACTUALLY PAID BY YOU FOR THE PLATFORM IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT THAT CAUSED THE DAMAGE. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), WARRANTY, OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR ALIVO WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OF LIABILITY SO SOME OR ALL OF THE ABOVE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU.

17. Indemnification

You agree to indemnify, defend and hold harmless Alivo, its licensors, suppliers, and their/our respective directors, officers, employees, agents, affiliates, successors and assigns, from and against any and all third-party claims, actions, damages, losses, liabilities, costs (including reasonable attorneys’ fees) and other expenses that arise from or relate to your use of our Platform, its content, our services, your breach of these Terms, your failure to obtain your customers’ opt-ins as set forth in Section 11, any breach or inaccuracy related to your A2P 10DLC registration as set forth in Section 12, or from any data or communications you submit, post or transmit to or through our Platform. Alivo reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification under this section, and you agree to cooperate as reasonably required in the defense of any such claim. You agree not to settle any such matter without the prior written consent of Alivo.

18. LIMITATION OF TIME TO FILE CLAIMS

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR THE PLATFORM MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

19. Governing Law

These Terms and the resolution of any dispute related to these Terms, our Platform, our services, or any other content, or your use of or inability to use any of the foregoing, shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Delaware.

20. Dispute Resolution and Binding Arbitration

YOU AND ALIVO ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.

ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, INJUNCTIVE AND EQUITABLE CLAIMS BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO THESE TERMS, OUR PLATFORM, OUR SERVICES, OR ANY OTHER CONTENT, OR YOUR USE OF OR INABILITY TO USE ANY OF THE FOREGOING, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.

The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Section 20. The AAA Rules are available at adr.org or by calling the AAA at 1-800-778-7879. All arbitration proceedings will take place in Portland, Maine. The Federal Arbitration Act will govern the interpretation and enforcement of this section.

The arbitrator will have full power and authority to determine issues of arbitrability and to interpret or construe the applicable provisions of these Terms and to fashion appropriate remedies for breaches of these Terms (including interim or permanent injunctive relief); provided that the arbitrator will not have any right or authority: (i) in excess of the authority of a court having jurisdiction over the parties and the dispute would have absent this arbitration agreement; (ii) to award damages in excess of the waivers and limitations applicable to damages in these Terms; or (iii) to modify the terms and conditions set forth in these Terms. Any award of the arbitrator(s) will be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction.

You agree to arbitrate on an individual basis. In any dispute, NEITHER YOU NOR ALIVO WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. The arbitrator has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction.

If any part of this arbitration provision is found unenforceable, the unenforceable portion will be severed and the remaining arbitration terms will be enforced.

21. Certain Claims; Jurisdiction

Notwithstanding Section 20 of these Terms or anything else to the contrary, Alivo may choose to file a claim against you for equitable relief in any court of competent jurisdiction in the event you violate Section(s) 6, 8, 9, 10, and/or 11 of these Terms.

In the event the requirement to arbitrate disputes is found to be invalid or unenforceable for any reason, you agree that any legal action or proceeding between Alivo and you related to these Terms, the Platform, its content, our services, or any other content, or your use of or inability to use any of the foregoing, shall be brought exclusively in a federal or state court of competent jurisdiction sitting in Portland, Maine, and you agree to submit to the personal and exclusive jurisdiction of such courts. To the fullest extent permitted by applicable law, each party hereby expressly waives any right to a trial by jury in any action, suit, proceeding, or counterclaim of any kind arising out of or in any manner connected with these Terms, the Platform, its content, the services, or any other content, or your use of or inability to use any of the foregoing.

22. General

Certain provisions of these Terms may be superseded by expressly designated legal notices or terms located on other pages within the Platform. These Terms, together with any such other legal notices and terms on our Platform, legal terms related to your A2P 10DLC registration, and our Privacy Policy constitute the entire agreement between Alivo and you pertaining to the subject matter hereof. Alivo may, at its sole discretion, periodically revise these Terms by updating this posting, provided that Alivo will notify you of any material updates to these Terms using the contact information that you have specified to us. You should periodically visit this page to review the current version of these Terms, so you are aware of any revisions to which you are bound. If any provision of these Terms is found by a court, any arbitrator, or other binding authority to be invalid, you agree that every attempt shall be made to give effect to the parties’ intentions as reflected in that provision and the remaining provisions of these Terms shall continue in full force and effect. No failure to exercise, and no delay in exercising, on the part of Alivo, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between these Terms and any applicable purchase or other terms, these Terms shall govern. All the provisions of these Terms and all obligations thereunder which by their nature should survive will survive the termination or expiration of your subscription, including, without limitation, payment obligations, intellectual property provisions, indemnities, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions.

23. How to Contact Alivo

If you have any questions regarding these Terms, you may contact us at contact@Alivo.ai at any time.

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