Service Terms and Conditions

1. Confidentiality

Except with the disclosing party’s prior written permission, a receiving party, one who receives Confidential Information and/or Trade Secrets from the disclosing party, shall not disclose or use any Confidential Information and Trade Secrets of the disclosing party for any purpose other than (a) in the case of Customer as the receiving party, as reasonably necessary to use the Service and (b) in the case of Stratifyd as the receiving party, as reasonably necessary to provide the Service. Each receiving party agrees to protect the Confidential Information and Trade Secrets of the disclosing party in the same manner that it protects its own Confidential Information of like kind, but in no event using less than a reasonable standard of care. If a receiving party is compelled by law to disclose Confidential Information and/or Trade Secrets of the disclosing party, the receiving party shall promptly provide the disclosing party with prior notice of such compelled disclosure (to the extent legally permitted) and provide reasonable assistance, at the disclosing party’s cost, if the disclosing party wishes to contest the disclosure. If a receiving party discloses or uses (or threatens to disclose or use) any Confidential Information and/or Trade Secrets of the disclosing party in breach of confidentiality protections hereunder, the disclosing party shall have the right, in addition to any other remedies available, to injunctive relief to enjoin such acts, it being acknowledged by the parties that any other available remedies are inadequate.

“Confidential Information” means (a) any software utilized by Stratifyd in the provision of the Service and its respective source code; (b) customer data; (c) each party’s business or technical information, including but not limited to the training materials, any information relating to software plans, designs, costs, prices and names, finances, marketing plans, business opportunities, personnel, research, development or know-how that is designated by the disclosing party as “confidential” or “proprietary” or the receiving party knows or should reasonably know is confidential or proprietary; and (d) the terms, conditions and pricing of this Agreement.

Confidential Information (except for customer data and software utilized by Stratifyd in the provision of the Service) shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the other party; (ii) was known to a receiving party prior to its disclosure by the disclosing party without breach of any obligation owed to the disclosing party; (iii) was independently developed by the receiving party without breach of any obligation owed to the disclosing party; or (iv) is received from a third party without breach of any obligation owed to the disclosing party.

“Trade Secrets” mean all tangible or intangible information regarding disclosing party or its activities that meets the definition of “trade secrets” under the North Carolina Trade Secrets Act, N.C. General Statute §§ 66–152 through 66–157 (“NCTSA”).

2. Termination

Stratifyd shall have the right to terminate this Agreement for cause or if Customer violates or breach any terms and conditions of this Agreement. Upon termination for cause by Stratifyd, all future amounts due shall be accelerated and become due and payable immediately. Upon termination, Customer shall (a) cease using the Stratifyd’s Service and Confidential Information (b) certify to Stratifyd within one (1) week of the termination that Customer has destroyed or returned to Stratifyd any of its software, third-party software, Confidential Information and all copies thereof.

3. Customer Obligations

Customer shall use the Service solely in accordance with this Agreement (a) for its internal business purposes; (b) to process Customer Data; and (c) to present the results obtained from the Service using Customer Data using the visualization functionality provided by the Service. Customer is responsible for all its compliance with this Agreement and obligations set forth herein. Customer shall: (i) have sole responsibility for the accuracy, quality, and legality of all Customer Data; and (ii) prevent unauthorized access to, or use of, the Service, and notify Stratifyd promptly of any such unauthorized access or use. Customer shall not: (1) use the Service in violation of all applicable Laws; (2) in connection with the Service, send or store infringing, obscene, threatening, or otherwise unlawful or tortious material, including material that violates privacy rights; (3) send or store Malicious Code in connection with the Service; (4) interfere with or disrupt performance of the Service or the data contained therein; or (5) attempt to gain access to the Service or its related systems or networks in a manner not set forth in the Documentation.

“Malicious Code” means, without limitation, computer instructions, files, programs or program code, software routines, hardware components, devices or techniques, and combination of the foregoing (including any copy protection key, code clock, drop dead devices, time bomb, virus, Trojan horses, worm, trap door, back door and other harmful code) that can or were designed to affix themselves to, bury themselves within or send instructions to, other files, data, programs or program code codes or instructions, that are designed to (a) permit unauthorized access to software; or (b) disable, delete, modify, damage, erase, or otherwise harm software, hardware or data.

4. Customer Restrictions

Customer shall not (i) modify, copy or create any derivative works based on the Service; (ii) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Service available to any third party, whether in object code or source code form, other than as permitted herein; (iii) frame or mirror any content forming part of the Service, other than on Customer’s own intranets for its own internal business purposes; (iv) reverse engineer, decompile, dissemble, reconstruct or discover any portion of the Service, including but not limited to, any source code, algorithms or software utilized by Stratifyd in the provision of the Service; (v) access the Service in order to build any commercially available product or service; (vi) copy any features, functions, integrations, interfaces or graphics of the Service; (v) remove any proprietary notices or legends from the software; (vi) pledge the Service or Stratifyd’s software or third-party software as collateral or otherwise, or encumber such software software with any lien or security interest; or (vii) remove any product identification, confidentiality, copyright, trademark, or other notice from any of Stratifyd’s software or Service. Customer shall use any technical information delivered by Stratifyd only for purposes of ensuring “interoperability” and compatibility and shall treat such technical information as Proprietary Information (defined below). Any reverse engineering of the Stratifyd software shall void any warranties or indemnification obligations of Stratifyd and shall automatically release Stratifyd from any obligation to provide support services under this or any separate agreement.

5. Ownership and Reservation of Rights

Stratifyd hereby grants Customer a non-exclusive, non-transferable, right to use the Service subject to the terms and conditions of this Agreement. Stratifyd and its licensors own and reserves all rights, titles and interest in and to the Service and its software, including all Derivative Works and related intellectual property and proprietary rights. No rights are granted or sold to Customer hereunder.

“Derivative Works” shall mean (i) any work that is based upon one or more pre-existing works, such as a revision, enhancement, modification, translation, abridgement, condensation, expansion, extension or any other form in which such pre-existing works may be recast, transformed, or adapted, and that, if prepared without the authorization of the owner of the copyright to such pre-existing works would constitute a copyright infringement and/or (ii) any compilation that incorporates such a pre-existing work. Customer shall have only a “right to use” license to any Derivative Works in accordance with the terms of this Agreement.

7. Remedies

Customer acknowledges: (a) any use of the Stratifyd software and Services in a manner inconsistent with this Agreement or (b) any other misuse of Confidential Information will cause immediate irreparable harm to Stratifyd or its suppliers for which there is no adequate remedy at law. Customer agrees that Stratifyd or its suppliers shall be entitled to immediate and permanent injunctive relief from a court of competent jurisdiction in the event of any such misuse or threatened misuse by Customer. The parties agree and stipulate that Stratifyd shall be entitled to such injunctive relief without posting of a bond or other security; provided, however, that if the posting of a bond is a prerequisite to obtaining injunctive relief, then a bond in an amount equivalent to U.S. $1,000 shall be sufficient. Nothing contained herein shall limit Stratifyd’s right to any remedies at law, including the recovery of damages from Customer for breach of this License.

8. Indemnification

Customer shall defend, indemnify and hold Stratifyd harmless from any claims made or brought by a third party: (i) arising from or based upon breach of this Agreement by Customer, its employees, agents and/or any authorized parties; or (ii) alleging that the customer data infringes, violations or misappropriates the rights of, or has caused harm to a third party; provided, however, that Stratifyd: (a) promptly gives written notice of the Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Claim (provided that Customer may not settle any Claim unless it unconditionally releases Stratifyd of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance.

9. DISCLAIMER

EXCEPT AS EXPRESSLY PROVIDED HEREIN AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STRATIFYD MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICE AND/OR RELATED DOCUMENTATION. STRATIFYD DOES NOT WARRANT THAT THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED. THE LIMITED WARRANTIES PROVIDED HEREIN ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CUSTOMER IN CONNECTION WITH THE PROVISION OF THE SERVICE.

10.

IN NO EVENT SHALL STRATIFYD HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, COST OF CAPITAL, COVER OR DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT, WARRANTY, STRICT LIABILITY, INDEMNITY OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY’S LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.

11. Force Majeure

Neither party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that party’s reasonable control and occurring without that party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving Stratifyd or Customer employees, respectively), computer attacks or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.

12. Governing Law and Waiver of Jury Trial

This Agreement shall be governed exclusively by the laws of the state of North Carolina, without regard to its conflicts of laws rules. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

13. Entire Agreement

Any terms & conditions negotiated for a licensed user in a MSA, SOW, or Order Form between Stratifyd and client will supersede these Service Terms and Conditions.