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K3 FRAMEWORK TERMS AND CONDITIONS

OVERVIEW

We are K3 Labs, Inc., a Delaware corporation (“K3,” “we,” “our”, “us” or “the Company”), and we operate the Software Platform (defined below), our website at www.k3-labs.com (the “Site”), along with our related websites, hosted applications, mobile or other services, and any other software, websites, applications, API’s, webtools, third party tools, forums, venues, smart contracts, features, or functionalities provided on or in connection with the foregoing (collectively, the “Service”). These Terms of Service, including our Privacy Policy (these “Terms”), constitute a legally binding contract between you and K3 regarding your use of the Service. For the purposes of these Terms, “You” includes both you, the person or entity, and your digital wallet(s). PLEASE READ THE FOLLOWING TERMS CAREFULLY.

BY CLICKING “I ACCEPT,” OR BY DOWNLOADING, INSTALLING, OR OTHERWISE ACCESSING OR USING THE SERVICE, OR ENTERING INTO AN ORDER FORM TO WHICH THESE TERMS AND CONDITIONS ARE INCORPORATED BY REFERENCE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THESE TERMS. IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THESE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND OUR PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BETWEEN US AND YOU TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS, THEN YOU ARE EXPRESSLY PROHIBITED FROM USING THE SERVICE AND YOU MUST DISCONTINUE USE IMMEDIATELY.

ARBITRATION NOTICE. YOU AGREE THAT DISPUTES ARISING UNDER THESE TERMS WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AS SET FORTH HEREIN, AND BY ACCEPTING THESE TERMS, YOU AND THE COMPANY ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THIS CONTRACT. YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY. YOUR RIGHTS TO ENGAGE IN DISCOVERY AND RIGHTS TO OBTAIN CERTAIN REMEDIES AND FORMS OF RELIEF WILL BE LIMITED AS SET FORTH HEREIN.

WHEREAS, the Company has developed a certain proprietary software-as-a-service (SaaS) product known as “K3 Framework” (collectively with all intellectual property rights therein, as the same may be supplemented, modified, updated or enhanced from time to time, the “Software Platform”); and

WHEREAS, the Client desires to subscribe to and use the Software Platform, subject to all of the terms and conditions hereof;

NOW, THEREFORE, in consideration of the mutual covenants and other forms of consideration, the adequacy and receipt of which are hereby acknowledged, the parties hereto agree as follows:

  1. SOFTWARE.

    1. Activation and Use. The Company shall provide remote electronic access to the Software Platform. Client shall access the Software Platform by means of a client account accessed via a unique client log-in and password for each Client User (collectively, the “Client Account”), which may be integrated with a Client “single sign on” system. The Client Account shall be made available to the Client via electronic remote access only and, other than such client-side object code as may be necessary for such electronic remote access, shall not be available in in executable object code form or in source code form. Subject and conditioned on Client’s payment of all fees and payments due hereunder and Client’s compliance and performance in accordance with all other terms and conditions of this Agreement, the Company hereby authorizes the Client to, on a limited, non-exclusive, non-assignable, non-sublicensable and non-transferable basis (only in accordance with all of the terms and conditions set forth in this Agreement) use the Software Platform during the Term through Client’s Client Account access.

  2. SERVICE ACKNOWLEDGEMENTS AND AGREEMENTS.

    1. Client Systems. The Client shall be responsible at its own expense for providing access to the internet in order to access the Software Platform. The Client shall be responsible for ensuring that all Client Systems are free from viruses, worms, trojan horses and other malicious code. The Client has and will retain sole control over the operation, maintenance and management of, and all access to and use of, the Client Systems, and sole responsibility for all access to and use of the Software Platform by any person by or through the Client Systems or any other means controlled by Client, including any: (i) results obtained from any use of the Software Platform; and (ii) conclusions, decisions or actions based on such use.
    2. Updates. The Company reserves the right in its sole discretion, but shall not be obligated, to revise, update, upgrade, edit or delete any appearance or functions of, or any documents, information or other content appearing on or part of, the Software Platform or Client Account. The Company shall provide Client with reasonable release notes in connection with material updates or changes to the Software Platform.
    3. Security. Client shall keep all passwords and usernames to its Client Account, as well as its operating systems (and passwords and usernames thereto), confidential and secure, and Client shall be solely responsible for any damage caused by unauthorized access to the Client Account or its operating systems. Client shall not share its passwords or usernames with any other persons, or otherwise provide access to the Client Account to any other person. The Company is not liable for any Client Data or other information or data of the Client obtained by unauthorized persons due to security breaches, Client’s negligence, or breach of this Agreement by Client, nor is the Company liable for any damage or loss of Client Data due to security breaches, virus attacks, Client’s negligence, or breach of this Agreement by Client. Client shall not undermine, damage or cause harm to the Software Platform, the Client Account, any other servers of the Company, or any other customer, client or affiliate of the Company.
    4. Client Personnel and Contacts.
      1. The Company shall provide to the Client telephone number(s) and email addresses to enable communication with a primary service representative of the Company (and a secondary service representative to serve as backup in the event that the primary service representative is unavailable) who shall assist the Client in identifying, verifying and resolving technical problems with the Client Account. The Company may, in its sole discretion, but is not required to, provide reasonable technical support regarding the Client Account to the Client, and any other issues of the Client regarding the Software Platform, only to the Client, and only the Client shall contact the Company for any such support or assistance. The Company shall have no obligation to provide, and shall not be liable for any failure to provide, (i) any technical services with the Client Account through any individual other than the Client, (ii) any resolution or dialogue with any individual other than the Client regarding any aspect of the Software Platform other than technical services regarding the Client Account, or (iii) any support or assistance at any time. The Company shall have the right to change, replace, remove or add any business hours for support or assistance by written notice to Client (and upon such written notice this Section 2.4.1 shall be deemed to have automatically been amended as provided in such written notice). The Company makes no representations or warranties with respect to the effectiveness of technical service responses.
      2. The Company shall not be responsible for any delays or access issues that are related to any breach of this Agreement by, or any act, omission to act or neglect of, Client, or any of its personnel, agents, representatives or contractors.
    5. Limitation
      1. Neither the Company nor any employees, contractors or personnel of the Company (including those individuals giving any initial or on-going training) is being engaged to make recommendations or furnish any advice based on any Client Data, and therefore neither the Company nor any employees, contractors or personnel of the Company (including those individuals giving any initial or on-going training) have any liability or obligation to Client or any third-party based upon any reliance upon, application or use of any information or data or any reports furnished or actions taken as a result of Client’s use or access to the Software Platform.
      2. The Company may develop and market new or different products or services, which use part or all of the Software Platform, and which perform all or a part of the functions performed by the Software Platform. Nothing contained in this Agreement shall give the Client any rights with respect to any such new or different products or services.
    6. Additional Covenants. Client shall:
      1. comply with all of the terms and conditions of this Agreement, and any other terms and conditions of the Software Platform as may be in effect from time to time, at the Company’s sole discretion;
      2. not permit any third person to use or gain access to the Software Platform (including the Client Account);
      3. not permit any person to reproduce, rebroadcast, copy, distribute, resell or incorporate into any information retrieval system (electronic or mechanical), any information, content, form or document delivered via the Software Platform;
      4. only use the Software Platform (including the Client Account) for its benefit and internal use and not in the operation of a service bureau or for the benefit of any other person or entity;
      5. not use the Software Platform (including the Client Account), in whole or in part, for any illegal, obscene, offensive or immoral purpose;
      6. not use the Software Platform (including the Client Account), in whole or in part, in any manner, or in connection with any content, data, hardware, software or other materials provided by or on behalf of the Client (collectively, the “Client Materials”) that (A) infringes upon or violates any patent, copyright, trade secret, trademark, or other intellectual property right of any third party, (B) constitutes defamation, libel, invasion of privacy, or violation of any right of publicity or other third-party right or is threatening, harassing or malicious, or (C) violates any applicable international, federal, state or local law, rule, legislation, regulation or ordinance; and
      7. ensure that all Client Materials are free from viruses, worms, trojan horses and other malicious code.
    7. Storage and Connectivity.
      1. You may connect a digital wallet to the Service that allows you to access blockchain-based digital assets that you control (a “Wallet”). You acknowledge and accept there are risks associated with connecting your Wallet to the Service, including, but not limited to, the risk of malicious software introduction, the risk that third parties may obtain unauthorized access to your third-party wallet or account, and the risk of theft of Assets. Certain technological difficulties experienced by the Company may also prevent the access to or use of your Assets. With respect to the use of Wallets, the Company accepts no responsibility for, or liability to you, in connection with your use of a Wallet and makes no representations or warranties regarding how the Service will operate with any specific Wallet. You are solely responsible for keeping your Wallet secure and you should never share your Wallet credentials, private key or seed phrase with anyone. If you discover an issue related to your Wallet, please contact your wallet provider. Likewise, you are solely responsible for your Client Account and any associated Wallet and we are not, and will not be, liable for any acts or omissions by you in connection with your Client Account or as a result of your Client Account or Wallet being compromised. THE COMPANY DOES NOT, AT ANY TIME AND IN ANY WAY, HAVE CUSTODY OVER ANY ASSETS – ALL ASSETS ARE HELD BY YOU IN YOUR WALLET(S).
      2. By using the Service, you represent and warrant to the Company and its affiliates that you are the lawful owner of any Asset that you store in a connected Wallet. At no point shall ownership or custody of any such Assets transfer to the Company. You bear the risks of loss for any such Assets, regardless of where you store those Assets. Except as required by a facially valid court order, or except as provided herein, the Company will not sell, transfer, loan or otherwise alienate your Assets unless instructed by you or as otherwise authorized by these Terms. For the avoidance of doubt, the Company makes no representations to any party that any Asset is free and clear of any security interest or other lien or encumbrance.
      3. You control the Assets held in your Wallet(s). We do not control the Assets held in any accounts outside of the Service and, subject to outages, downtime, these Terms, and other applicable policies, you may disconnect a Wallet from the Service at any time.
      4. The Service may not support all features, functionalities or benefits of each Asset that is supported by or otherwise interacts with the Service (“Supported Assets”), and may not, for example, include support for any other protocols and/or functionality which supplement or interact with the Supported Assets. Such exclusions may include, but are not limited to, ‘forked’ protocols, airdropped Assets, or other functionality such as staking, protocol governance, access to community perks, gaming platform or game functionality, and/or any smart contract functionality, which may supplement or interact with a Supported Asset (“Supplemental Benefits”). Determinations whether to support any Supplemental Benefit shall be made by the Company in our sole discretion, and without liability to you. The Company shall not be responsible or liable for your inability to receive or enjoy any or all of the Supplemental Benefits of your Assets.
      5. You acknowledge that your interactions with an Asset and the behavior of an Asset may be dependent on, or dictated by, a third-party smart contract that governs the Asset. You are solely responsible for understanding the applicable smart contract and verifying whether it operates as you expect it to. The Company shall not be responsible or liable for any defects in, or unexpected behavior of, any smart contract associated with an Asset, or any losses that you suffer as a result thereof.

  3. FEES AND PAYMENT.

    1. Fees. In consideration of the Company’s provision of the Software Platform hereunder, the Client shall pay the fees as set forth in, and in accordance with, the order form(s) or, if this Agreement is not incorporated by reference into an order form, the fees set forth on the Site, (the “Order Form”) executed (including executed or agreed to electronically) by Client, subject to the terms and conditions of this Agreement. Except as set forth in an Order Form, the Company may change any fees, payments or charges at its discretion at any time upon notice to Client. Such revisions shall take effect in the first billing cycle immediately following the effective date of such revisions.
    2. Payment Terms. Client shall pay Fees as set forth in the Order Form.
    3. Prepaid credit for the purposes of funding the “gas” cost of third party smart contracts initiated by you through the Service may be purchased by you, if specified in the Order Form. PREPAID CREDIT IS NONREFUNDABLE. Prepaid credit that you have individually and directly purchased for cash will not expire. Credit that you have received as an “add on” to a subscription, or have received as a promotion, gift or otherwise not purchased individually and directly for cash, may expire at the Company’s discretion. The price of prepaid credit will be the price specified in the Site at the time of your purchase.
    4. Subject to the Order Form, all amounts shown due on any such invoice shall be paid by Client on or before the tenth (10th) day of receipt. If a delinquency occurs, the Company may, at its option (and without relieving Client from its payment obligations), revoke, suspend or disclaim Client’s right to utilize any of the Software Platform (including the Client Account), and all other rights of Client hereunder, until payment in full is made. Client shall be liable to the Company for all costs and expenses of collection, including reasonable attorneys’ fees, and court costs with respect to any delinquent payment. In the event that the Client disputes any amount shown due on any invoice, the Client shall pay any undisputed portions of such amount and send written notice to the Company detailing any disputed portions of such amount.

  4. TERM AND TERMINATION.

    1. Term. The initial term of this Agreement shall commence on the Effective Date and shall continue until terminated (the “Term”).
    2. If monthly billing is selected on the Order Form, Client may terminate its purchase of access to the Software Platform with thirty (30) days’ notice to the Company.
    3. If annual billing is selected on the Order Form, Client may terminate its purchase of access to the Software Platform with written notice of nonrenewal to the Company not less than sixty (60) days prior to the expiration of the then-applicable annual billing cycle.
    4. With respect to accounts that are billed on a monthly basis, Client shall be obligated to pay all Fees that pertain to all months that commence prior to the effective date of such termination, and have no obligation to pay any Fees that pertain to any month that commences on or after the effective date of such termination. With respect to accounts that are billed on an annual basis, Client shall be obligated to pay all Fees that pertain to an annual billing period that commenced prior to the effective date of such termination, and shall have no obligation to pay any Fees that pertain to an annual billing period that commences on or after the effective date of such termination. Client shall not be entitled to a refund of any Fees paid or payable prior to the effective date of any termination of the Agreement or termination of access to the Software Platform.
    5. Termination. Subject to the terms and conditions of this Agreement, as well as any other termination, suspension or revocation rights set forth herein, either party may immediately terminate this Agreement for any reason upon notice to the other party; provided, however, that: (a) the exercise of such right of termination shall not limit any other rights or remedies of the terminating party at law, in equity or hereunder; and (b) there shall not be an available cure or notice period for any material breach by Client, including, without limitation, Client’s breach of (i) proprietary and/or confidentiality obligations or (ii) any of its obligations hereunder with respect to any payment due and owing from Client to the Company hereunder, and the Company shall have the right to immediately terminate this Agreement upon written notice to Client in the event of any such material breach.
    6. Actions Upon Termination. Upon any termination of this Agreement:
      1. Client shall at its own expense return to the Company any Proprietary Information of the Company in its possession and shall immediately cease using any of the Software Platform or Client Account. In connection therewith, upon the termination/expiration date of this Agreement, or at any time thereafter, the Company shall have the right to de-activate the Client Account.
      2. Upon the termination date of this Agreement, or at any time thereafter, the Company shall issue an invoice to Client indicating all amounts owing as of such termination date from Client to the Company for any of the services rendered by the Company to Client under this Agreement as of such termination date.
      3. All rights and obligations of each party hereunder shall terminate, subject to Section 7.13.

  5. PROPRIETARY RIGHTS; CONFIDENTIALITY.

    1. Intellectual Property Rights. The Company owns and shall remain owning the Client Account, the Documentation, if any, the Software Platform and any other software developed by or for the Company (collectively, the “Intellectual Property”), including without limitation all applicable rights to patents, copyrights, trademarks, trade secrets or other proprietary or intellectual property rights inherent therein or appurtenant thereto (collectively, the “Intellectual Property Rights”). Nothing in this Agreement grants any right, title or interest in or to (including any license under) any Intellectual Property Rights, whether expressly, by implication, estoppel or otherwise. Client shall:
      1. not rent, lease, sublicense, distribute, transfer, copy or modify any Intellectual Property of the Company or the Software Platform, in whole or in part;
      2. only use the Intellectual Property made available to Client by the Company for its own benefit and internal use and not for the material benefit of any other person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud or other technology or service;
      3. not translate, decompile, or create or attempt to create, by reverse engineering or otherwise, the source code, in whole or in part, from the object code to the Software Platform or Client Account made available hereunder;
      4. not adapt any of the Intellectual Property of the Company, in whole or in part, in any way or use it to create a derivative work; and
      5. not remove, obscure, or alter, in whole or in part, the Company’s proprietary notices, trademarks, or other proprietary rights notices affixed or contained in or on any Intellectual Property of the Company, including without limitation any proprietary notices of any third party service suppliers to any of the foregoing;
      6. not bypass or breach any security device or protection used by Software Platform or access or use the Software Platform other than by the Client Account;
      7. not damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner the Software Platform or the Company’s provision of services to any third party, in whole or in part;
      8. not remove, delete, alter or obscure any trademarks, Documentation, warranties or disclaimers, or any copyright, trademark, patent or other intellectual property or proprietary rights notices from any Software Platform, including any copy thereof; and
      9. not access or use the Software Platform for purposes of competitive analysis of the Software Platform, the development, provision or use of a competing software service or product or any other purpose that is to the Company’s detriment or commercial disadvantage.
    2. Proprietary and Confidential Information. Client (the “Receiving Party”) agrees that all Proprietary Information of the Company (the “Disclosing Party”) which has heretofore been disclosed and which will hereafter be disclosed to the Receiving Party, or of which the Receiving Party may otherwise attain knowledge during the Term, in oral, written or other tangible form, shall be deemed to be confidential information and the sole property of the Disclosing Party. This Agreement shall govern all communications between the parties that are made during the Term.
      1. The Receiving Party shall keep all Proprietary Information of the Disclosing Party as well as the financial terms of this Agreement (collectively, the “Confidential Information”) strictly confidential and shall not disclose, distribute or disseminate in any way to any third party any of the Confidential Information. Furthermore, the Receiving Party shall not utilize for the Receiving Party’s own benefit or the benefit of any third party: (i) any Proprietary Information of the Disclosing Party disclosed by the Disclosing Party or by any person associated with the Disclosing Party; (ii) any Proprietary Information of the Disclosing Party of which the Receiving Party attains knowledge in connection with this Agreement; or (iii) any information, processes, inventions, intellectual property or the like generated by the Receiving Party based in whole or in part on the Proprietary Information of the Disclosing Party, including, without limitation, any improvements, analyses, compilations, studies or other documents or records prepared or generated from such Proprietary Information of the Disclosing Party, which foregoing materials shall be deemed part of the Proprietary Information of the Disclosing Party. The Receiving Party shall protect the Proprietary Information of the Disclosing Party as well as the financial terms of this Agreement by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use, dissemination or publication of such Confidential Information as Receiving Party uses to protect its own Proprietary Information of a like nature and as it uses to protect the financial terms of this Agreement. Notwithstanding the foregoing, the Receiving Party shall have the right to disclose any financial terms of this Agreement: (x) to its legal and financial advisors who are under a legal obligation of confidentiality or (y) to its trustees, officers, directors, members, managers, representatives, agents and employees, on a need-to-know basis, provided that each of the foregoing are under a legal obligation of confidentiality.
      2. Notwithstanding anything in this Agreement to the contrary, the Receiving Party may disclose the Proprietary Information of the Disclosing Party as well as the financial terms of this Agreement to the extent that such disclosure is required by an order of a court, administrative agency or governmental authority, or by any law, rule or regulation, or by subpoena, discovery request, summons or other administrative or legal process, or by any formal or informal investigation by any governmental agency or authority; provided, however, that, unless prohibited by law: (i) the Receiving Party shall give prompt written notice of any such request or requirement to the Disclosing Party; (ii) the Receiving Party shall give the Disclosing Party prior written notice of the Confidential Information it believes it is required to disclose; and (iii) the Receiving Party shall use its reasonable efforts to cooperate, to the extent practicable, with the Disclosing Party to avoid or minimize such disclosure or to obtain confidential treatment thereof or other protective order.
      3. The Receiving Party’s obligations under this Section 5.2 shall terminate when, the Receiving Party, upon seeking to avoid the Receiving Party’s obligations hereunder, can prove by clear and convincing documentary evidence that: (i) with respect to disclosure of any financial terms of this Agreement, such financial terms have entered the public domain; or (ii) with respect to any Proprietary Information of the Disclosing Party, such Proprietary Information (A) was in the public domain at the time of disclosure to Receiving Party by Disclosing Party, (B) entered the public domain without violation of this Agreement or any other confidentiality obligation subsequent to the time of disclosure to Receiving Party by Disclosing Party, (C) was communicated to the Receiving Party by a third party, free of any obligation of such third party to maintain the confidentiality of such, or (D) was independently developed by Receiving Party using no amount of the Proprietary Information of the Disclosing Party. Notwithstanding the foregoing, specific information shall not be deemed to be within any of the foregoing exceptions merely because it is in the scope of more general information within any such exceptions, and a combination of features shall not be deemed to be within any such exceptions merely because individual features are within such exceptions.
    3. Use of Name. The Company may use (a) Client’s name, (b) the name of any employee, student or agent of Client, or (c) any trademarks, service marks or trade names owned or controlled by Client, in any sales, promotional, advertising or other publication.
    4. Use of Name. The Company may use (a) Client’s name, (b) the name of any employee, student or agent of Client, or (c) any trademarks, service marks or trade names owned or controlled by Client, in any sales, promotional, advertising or other publication.
    5. License to Client Data. Client hereby grants to the Company a royalty-free, worldwide, non-exclusive, assignable, sublicensable and transferable license to use the Client Data and Client Input Data to provide the services of the Software Platform to Client (and such other parties as the Client may direct the Company through the Software Platform) during the Term.
    6. Feedback. If you choose to provide input and suggestions regarding problems with or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant the Company an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.

  6. THIRD-PARTY TERMS.

    1. Third-Party Services and Linked Websites. The Company may provide tools through the Service that:
      1. enable you to export information, including User Content (defined below), to third-party services;
      2. features that allow you to link your Account with an account on the third-party service; and/or
      3. provide additional functionality (such as “wallets” for use with digital assets).
      By using any of these tools, you agree that the Company may transfer such information (which may include User Content and/or Client Account information) as may be necessary for you to access and use the applicable third-party service. Third-party services are not under the Company’s control, and, to the fullest extent permitted by law, the Company is not responsible for any actions of a third-party service provider, including the third-party service provider’s use of your information. We do not control, endorse or adopt any third party content or services and shall have no responsibility for third party content or services, including, without limitation, material that may be infringing, illegal, misleading, incomplete, erroneous, offensive, indecent or otherwise objectionable. In addition, your business dealings or correspondence with such third parties are solely between you and the third parties. The Service may also contain links to third-party websites. Linked websites are not under the Company’s control, and the Company is not responsible for their content. IF YOU DECIDE TO USE THIRD PARTY SERVICES, YOU DO SO AT YOUR OWN RISK. THIRD PARTY SERVICES ARE NOT ADMINISTERED OR CONTROLLED BY THE COMPANY, AND ARE ADMINISTERED AND CONTROLLED BY THE APPLICABLE THIRD PARTY SERVICE PROVIDER. SEPARATE TERMS OF SERVICE, PROMULGATED BY THE APPLICABLE THIRD PARTY SERVICE PROVIDER, GOVERN THE USE OF SUCH THIRD PARTY SERVICE, AND YOU SHOULD READ SUCH TERMS CAREFULLY BEFORE USING THE APPLICABLE THIRD PARTY SERVICE.
    2. Third-Party Offerings and Content. References, links, or referrals to or connections with or reliance on third-party resources, products, services, or content, including smart contracts developed or operated by third parties, may be provided to you or your users in connection with the Service. In addition, third parties may offer promotions related to the Service. The Company does not endorse or assume any responsibility for any activities of or resources, products, services, content, or promotions owned, controlled, operated, or sponsored by third parties. If you access any such resources, products, services, or content or participate in any such promotions, you do so solely at their own risk. You hereby expressly waive and release the Company from all liability arising from your use of any such resources, products, services or content or participation in any such promotions. You further acknowledge and agree that the Company 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 such resources, products, services, content, or promotions from third parties.
    3. Third Party Disputes. In the event of a disagreement arising between you and any other user of the Service, or you and a third party, the Company will not provide dispute resolution services and the parties must resolve such disputes directly. If you have a dispute with one or more users of the Service, or third parties, you release us from claims, demands, and damages of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.

  7. LIMITATION OF LIABILITY; INDEMNITY.

    1. Disclaimer. THE COMPANY MAKES NO, AND SPECIFICALLY DISCLAIMS, ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED (INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABLITY, FITNESSS FOR A PARTICULAR PURPOSE AND TITLE), THAT THE SERVICE (IN WHOLE AND IN PART), ANY DOCUMENTATION, ANY REPORTS FURNISHED BY THE SOFTWARE TO CLIENT (IN ORAL OR WRITTEN FORM), THE SOFTWARE (IN WHOLE AND IN PART), THE CLIENT ACCOUNT (IN WHOLE AND IN PART), OR ANY INTELLECTUAL PROPERTY OF THE COMPANY PROVIDED TO CLIENT, OR ANY COMPONENT OF ANY OF THE FOREGOING, WILL MEET THE CLIENT’S REQUIREMENTS OR THAT THE CLIENT’S USE OF THE CLIENT ACCOUNT WILL BE UNINTERRUPTED OR ERROR-FREE. CLIENT ACKNOWLEDGES AND AGREES THAT: (I) THE SOFTWARE MAY REQUIRE JUDGMENTS TO BE MADE THAT ARE BASED UPON LIMITED DATA RATHER THAN UPON SCIENTIFIC CERTAINTIES; AND (II) ULTIMATE OUTCOMES COULD BE INCONSISTENT WITH THE DATA AND TRENDS DEVELOPED BY THE SOFTWARE.
    2. Limitation of Liability. IN NO EVENT SHALL THE COMPANY BE LIABLE TO CLIENT FOR ANY EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL (INCLUDING LOST PROFITS) DAMAGES ARISING FROM OR IN ANY WAY CONNECTED WITH ITS PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, EVEN IF THE AFFECTED PARTY HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF THE COMPANY AND ITS LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE FEES ACTUALLY PAID TO THE COMPANY THAT REPRESENT THREE (3) MONTHS WORTH OF FEES PAID TO COMPANY. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    3. [Pilot Acknowledgements. Client hereby acknowledges and agrees that the Software Platform, and Client’s licensed use hereunder, is being provided on a pilot basis, and, as such, Client hereby further acknowledges and agrees that: (a) the Software Platform may not be in final form or fully functional and it is expected that it may contain errors, design flaws or other problems which cannot or will not be corrected by the Company; (b) the Software Platform and its use may result in unexpected results, loss of data, project delays or other unpredictable damage or loss to Client; (c) the Company is under no obligation to release an updated commercial version of the Software Platform and any commercial product released may not be backward compatible and or the programming interfaces may change; and (d) the Company has the right to unilaterally abandon development of the Software Platform at any time and without any obligation or liability to the Client or any third party. The Client further agrees that the Client shall make no claim against the Company for lost data, run time, inaccurate output, work delays or lost profits resulting from the use or operation of the Software Platform.]
    4. You agree to defend, indemnify and hold harmless the Company (and each of our officers, directors, members, employees, agents and affiliates) from any claim, demand, action, damage, loss, cost or expense, including without limitation reasonable attorneys’ fees, arising out or relating to (a) your use of, or conduct in connection with, our Service; (b) any Feedback you provide; (c) your violation of these Terms; or (d) your violation of any rights of any other person or entity. If you are obligated to indemnify us, we will have the right, in our sole discretion, to control any action or proceeding (at our expense) and determine whether we wish to settle it.

  8. MISCELLANEOUS TERMS .

    1. Assignment. Client shall not assign, transfer, sublicense, or otherwise dispose of this Agreement (or any rights or benefits hereunder), in whole or in part, or delegate is obligations under this Agreement, in whole or in part, to any other person without the prior written consent of the Company, which consent shall not be unreasonably withheld or delayed; provided that: (a) any such assignment/delegation with written consent does not release the assigning/delegating party from any of its obligations under this Agreement unless such written consent so states; and (b) the rights of any permitted assignee hereunder shall be subject to any and all set-offs, counterclaims and other comparable rights arising hereunder. Any assignment/delegation of rights/obligations of any of this Agreement contrary to the above shall by null and void and of no force or effect.
    2. Governing Law; Arbitration

      PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH US AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF

      1. You and the Company agree to arbitrate any dispute arising from these Terms or your use of the Service, except for disputes in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets or patents. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. You and the Company agree to notify each other in writing of any dispute within thirty (30) days of when it arises. Notice to the Company shall be sent to [email protected]. You and the Company further agree: (a) to attempt informal resolution prior to any demand for arbitration; (b) that any arbitration will occur in New York County, New York; (c) that arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of JAMS; and (d) that the state or federal courts in New York County, New York have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court. Any dispute between the parties will be governed by these Terms and the laws of the State of Delaware and applicable United States law, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. Whether the dispute is heard in arbitration or in court, you and the Company will not commence against the other a class action, class arbitration or representative action or proceeding.
    3. This Agreement is deemed to have been entered in the State of Delaware, and its interpretation, construction, and the remedies for enforcement or breach are to be applied pursuant to, and 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 the State of Delaware. Venue and jurisdiction for any action or claim brought under this Agreement shall be in the courts with proper jurisdiction located in New York County, in the State of New York, United States of America, and the parties expressly submit themselves to the personal jurisdiction of such courts.
    4. Irreparable Harm. Each party acknowledges that any breach of its obligations with respect to Section 5 may cause the other party irreparable harm or injury for which there are inadequate remedies at law and that such other party may be entitled to equitable relief in addition to all other remedies available to it. Each party agrees that, if a court of competent jurisdiction determines that such party has breached, or attempted or threatened to breach, its obligations pursuant to Section 5, the other party will be entitled to obtain appropriate injunctive relief and other measures restraining further, attempted or threatened breaches of such obligations. Such relief or measures shall be in addition to, and not in lieu of, any other rights and remedies available to such aggrieved party.
    5. Force Majeure. The Company shall not be liable to the Client for any delay or non-performance of its obligations hereunder in the event and to the extent that such delay or non-performance is due to a Force Majeure Event. A “Force Majeure Event” is any event beyond the control of the Company which occurs after the Effective Date and which was not reasonably foreseeable at that time and whose effects are not capable of being overcome without reasonable expense or loss of time or both, including (without limitation) war, terrorism, civil unrest, blockades, boycotts, strikes, lock-outs and other general labor disputes, acts of government or public authorities, natural disasters, exceptional weather conditions, breakdown or general unavailability of transport facilities, accidents, fire, explosions and general shortages of energy, failures in external networks, defects or inefficiencies in Client’s software, defects or inefficiencies in computer equipment or hardware of Client, or any delay to the extent caused by the acts or omissions of Client.
    6. Binding. This Agreement shall be binding on the parties, their affiliates, parents, subsidiaries, successors, and permitted assigns (if any), and each party warrants that the undersigned representative of such party is authorized to execute this Agreement on behalf of such party.
    7. Complete Understanding. This Agreement constitutes the final, complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes any prior proposals, understandings and other agreements (as to all, written and oral) between the parties relating to the subject matter hereof.
    8. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be changed and interpreted so as to best accomplish the objectives of the original provision to the fullest extent allowed by law and the remaining provisions of this Agreement shall remain in full force and effect.
    9. Waiver and Amendment. No modification, amendment or waiver of any provision of this Agreement shall be effective unless in writing signed by the party to be charged. No failure or delay by either party in exercising any right, power, or remedy under this Agreement shall operate as a waiver of any such right, power or remedy.
    10. Independent Contractors. The Company, and its personnel, contractors and agents, in their performance under this Agreement, are acting as independent contractors and not as employees or agents of the Client. Under no circumstance will either party have the right or authority to enter into any contracts or assume any obligations for the other or to give any warranty or make any representation on behalf of the other.
    11. Notices. Any notice provided pursuant to this Agreement shall be in writing and shall be deemed given (i) if by hand delivery, upon receipt thereof; (ii) if mailed or sent via electronic mail, three (3) days after deposit in the U.S. mails, postage prepaid, certified mail return receipt requested; or (iii) if by next day delivery service, upon such delivery. All notices shall be addressed to the applicable party at its respective address as may be designated on notice to the other party pursuant these notice provisions. Notwithstanding the foregoing, all billing, invoicing and collections notices to Client may be made by electronic mail to the electronic mail address provided by Client to the Company.
    12. Cumulative Rights and Remedies. The rights and remedies of the Company and Client provided for under this Agreement are neither exclusive nor mutually exclusive, and the Company and Client shall be entitled to resort to any such rights and remedies, or any other remedy available to the Company and Client at law or in equity, or some or all in any combination, at each of their discretion.
    13. Rules of Usage. In this Agreement, unless a clear intention appears otherwise: (a) the singular number includes the plural number and vice versa; (b) reference to any person includes such person’s successors and assigns but, if applicable, only if such successors and assigns are not prohibited by this Agreement, and reference to a person in a particular capacity excludes such person in any other capacity or individually; (c) reference to any gender includes each other gender; (d) reference to any agreement, document or instrument means such agreement, document or instrument as amended or modified and in effect from time to time in accordance with the terms thereof; (e) reference to any law means such law as amended, modified, codified, replaced or reenacted, in whole or in part, and in effect from time to time, including rules and regulations promulgated thereunder; (f) “hereunder,” “hereof,” “hereto,” and words of similar import shall be deemed references to this Agreement as a whole and not to any particular section or other provision hereof; (g) “including” (and with correlative meaning “include”) means including without limiting the generality of any description preceding such term; (h) “or” is used in the inclusive sense of “and/or”; (i) with respect to the determination of any period of time, “from” means “from and including” and “to” means “to but excluding”; (j) references to documents, instruments or agreements shall be deemed to refer as well to all addenda, exhibits, schedules or amendments thereto; (k) references to “person” or “persons” means an individual, corporation, limited liability company, partnership, trust, joint venture or other legal entity; (l) article and section headings herein are for convenience only and shall not affect the construction hereof; and (m) section and article references shall be deemed to refer to all subsections and sections thereof, unless otherwise expressly indicated.
    14. Sanctions and Export Control
      1. Unless authorized or exempt from regulation, the Service may not be used to deposit, withdraw or conduct trades or transactions in assets or to engage in any other service by or with: (a) an entity or individual located, organized or resident in a sanctioned jurisdiction (currently, Crimea, Donetsk, Cuba, Iran, Luhansk, North Korea and Syria); (b) an entity or individual on the Office of Foreign Assets Control’s Specially Designated Nationals and Blocked Persons List (“SDN List”) or Consolidated Non-SDN Lists, the United Nations (“UN”) Security Council Consolidated List, or regional or foreign government watchlists; or (c) an entity directly or indirectly owned or controlled by any person located, organized or resident in a sanctioned jurisdiction or any person listed on the SDN List, Consolidated Non-SDN Lists, the UN Security Council Consolidated List, or regional or foreign government watchlists.
      2. We reserve the right to lock, disable and/or close accounts under review for sanctions compliance violations.
      3. By using the Service , you represent and warrant that you are not located in an embargoed country or jurisdiction (currently, Crimea, Cuba, Donetsk, Iran, Luhansk, North Korea, Sudan and Syria), or on the Office of Foreign Assets Control’s SDN List or the U.S. Department of Commerce’s Entity List. You also agree that the Service will not be used, exported, reexported or transferred for any purpose prohibited by any export or import control laws and regulations.
    15. Survival. In addition to all other provisions which expressly survive termination/expiration of this Agreement, or whose context requires such survival, the following provisions shall specifically survive termination of this Agreement: Sections 2.3, 2.5, 3, 4.3, 5, 6, 7, 8 and Schedule I.

SCHEDULE I

DEFINITIONS

“Activation Date” means the date the Company provides access to the Client to the Software Platform; such access to be deemed given when the Client is able to access the Client Account through the Client username and password therefor.

“Client Data” means data uploaded by the Client to the Software Platform or otherwise provided by the Client to the Company. For the avoidance of doubt, Client Data does not include any publicly available information or proprietary data of Company, whether modified, transformed, or manipulated by Company or otherwise, including without limitation expertise ranking information.

“Client Input Data” means information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from the Client by or through the Software Platform or that incorporates or is derived from the processing of such information, data or content by or through the Software Platform.

“Client Systems” means the Client’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Client or through the use of third-party services.

“Documentation” means all manuals, guidelines, reports, media and other documentation regarding the Software Platform or any Intellectual Property of the Company which are provided in writing or electronic format by the Company to the Client.

“Proprietary Information” means, with respect to Proprietary Information of the Company, confidential or proprietary information, processes and material of the Company relating to or associated with the Software Platform that are conceived, made or possessed by the Company including without limitation: plans, designs, performance specifications, marketing plans, algorithms, Intellectual Property, Intellectual Property Rights, ideas, inventions, formulas, techniques, and know how as well as any of the foregoing relating to the Software Platform and the Client Account (and each of their respective source codes) and the Documentation.