Datawiza License Terms and Conditions

This Datawiza Subscription Agreement is a binding agreement made between Datawiza Technologies Inc. (“Datawiza,” or “Licensor”) and you, the Licensee (“You”, “Your”, “Licensee” or “Customer”), and governs Your use, under license, of certain Datawiza software (“Software”) and access to certain Datawiza services (“Services”) according to the terms and conditions set forth below. All components, or terms and conditions, contained in this Agreement are integral to the Agreement and Licensee consents to all of these terms and conditions. All components of this Agreement collectively are referred to herein as the “Agreement”. Licensee acknowledges it has had the opportunity both to review the Agreement and to consult with legal counsel prior to acceptance of this Agreement. By accessing or using the Software and Services, You acknowledge that You have read and understand this Agreement, that You accept all of the terms and conditions contained here in full, and that You agree that the terms and conditions shall be fully and legally binding upon the Parties, without the need for any further indication of acceptance on Your part (such as by signature, click through or other means of electronic acceptance). If You are acting on behalf of a Licensee, You represent that You have full legal authority to bind the Licensee.

1. SERVICES

   1. Datawiza Service. Subject to Customer’s ongoing compliance with this Agreement (including timely payment of all applicable fees), Datawiza grants Customer a non-exclusive, non-transferable license, during the Subscription Term, to Use Datawiza’s platform and service expressly identified on each mutually accepted subscription order form or as selected by Customer on Datawiza’s online order page (each, an “Order”). “Use” means that Customer may use the Datawiza platform and service up to the number of applications indicated on each Order (“Authorized Applications”) solely for business purposes.
   2. Restrictions. Customer shall not, directly or indirectly, and shall not authorize any person, to the maximum extent permitted by applicable law, to (i) decompile, disassemble, reverse engineer or attempt to reconstruct or discover any elements of; (ii) translate, adapt, or modify; (iii) write or develop any program based upon; (iii) sell, sublicense, transfer any rights in, use for the benefit of, or allow access to, unauthorized persons to; (iv) transmit unlawful, infringing or harmful data or code to or from; (v) replicate significant portions of Datawiza’s data, or (vi) otherwise use except as expressly permitted hereunder, in each case of (i) – (vi), the Datawiza Service (including all technology constituting or used to provide such service) or Datawiza’s data, as applicable (collectively, “Datawiza Technology”).

2. TERM AND TERMINATION

   1. Term. This Agreement will start on the effective date set forth on the first executed Order and, unless terminated earlier in accordance with this Agreement, will continue until the end of the last Subscription Term (as defined in the applicable Order) or the earlier termination of all applicable Orders.
   2. Effect of Termination. Upon the effective date of expiration or termination of this Agreement for any reason: (i) all outstanding Orders, statement of works (“SOW(s)”), and access to Datawiza Technology will automatically terminate; (ii) all outstanding payment obligations of Customer become due and payable immediately; and (iii) upon thirty (30) days from the date of termination, Datawiza will have no further obligation to store or permit retrieval of any data as described in Section 3c. The following provisions will survive the expiration or termination of this Agreement for any reason: Sections 1.a, b, and 3 through 6.

3. CONFIDENTIALITY; OWNERSHIP; DATA

   1. Definition. “Confidential Information” means any information disclosed directly or indirectly by one party (“Disclosing Party”) to the other party (“Receiving Party”) pursuant to this Agreement that is either designated as “confidential” or under the circumstances of disclosure or by the nature of the information itself is reasonably understood by the Receiving Party to be the confidential information of the Disclosing Party. Confidential Information does not include any information which (a) is or becomes generally known and available to the public through no act or omission of the Receiving Party; (b) was already in the Receiving Party’s possession at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s contemporaneous records; (c) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure; or (d) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information. As between Datawiza and Customer, the Datawiza Technology is the Confidential Information of Datawiza, and the Customer Data is the Confidential Information of Customer. The terms (but not the existence) of this Agreement is each party’s Confidential Information.
   2. Use; Maintenance. Neither party shall use the Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under this Agreement.  Neither party shall disclose, or permit to be disclosed, either directly or indirectly, any Confidential Information of the other party, except to employees of the Receiving Party with a need to know, or to its advisors, or consultants or prospective investors or purchasers, each subject to a written obligation of confidentiality. Each party will take reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use of, the Confidential Information of the other party, and will take at least those measures that it takes to protect its own most highly confidential information.  A Receiving Party will use reasonable efforts to provide timely notice of compelled disclosure to facilitate confidential treatment of Disclosing Party’s Confidential Information and will furnish only that portion of Confidential Information that it is legally required to disclose, after exercising reasonable efforts to obtain assurance that such information will receive confidential treatment. Datawiza may list Customer as a customer (and in connection therewith may use Customer’s trademarks, marks and trade names) in its promotional and marketing materials, including its website.
   3. Ownership; Data. Except for the limited rights granted in this Agreement: (i) Datawiza hereby retains all rights, title and interest, including all intellectual property rights, in and to the Datawiza Technology, and any improvements thereof, including improvements resulted from the process in which Datawiza provides Services to Customer , and (ii) Customer hereby retains all rights, title and interest in the Customer Data and all intellectual property rights,in the work product resulting from any Professional Services and Consulting Services (as defined in the applicable SOW). Customer hereby grants to Datawiza and its affiliates a worldwide, irrevocable, perpetual, royalty-free license (i) to exploit without restriction all feedback regarding Datawiza Technology; (ii) to use log and other information derived from Customer’s use of the Datawiza Service (“Usage Data”), to improve Datawiza’s products and services; and (iii) to use all data made available to Datawiza by or on behalf of Customer to perform its obligations hereunder. The non-public data, input into the Datawiza Platform and Service by or on behalf of Customer shall be deemed “Customer Data.” Customer Data does not include public domain or publicly available data, data independently derived by Datawiza, or except as expressly described above, data obtained by Datawiza from a third party.  Except as expressly agreed, Datawiza has no obligation hereunder to obtain any third party data or pay any usage fee therefor. Datawiza may remove or restrict access to Datawiza’s data including if providing access may violate applicable law, the source of such data becomes unavailable, or a third party brings or threatens legal action. Customer will obtain all permissions or approvals from each applicable data source as may be necessary or required to provide such data to Datawiza in connection with the delivery of the Datawiza Service and comply with all applicable laws in its performance under this Agreement.

4. INDEMNIFICATION

   1. By Datawiza. Datawiza shall (i) defend, or at its option settle, any claim brought against Customer by a third party to the extent it alleges that Customer’s use of the Datawiza Service as authorized in this Agreement constitutes a direct infringement of U.S. copyright or trade secret of any third party, and (ii) pay, subject to the limitations set forth in Section 5, damages awarded in a final judgment, (or amounts agreed in a monetary settlement), in any such claim defended by Datawiza; provided that Customer provides Datawiza (i) prompt written notice of;  (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by Datawiza in connection with the defense or settlement of, any such claim.  If any such claim is brought or threatened, Datawiza may, at its sole option and expense: (a) procure for Customer the right to continue to use the applicable Datawiza Service; (b) modify the Datawiza Service to make it non-infringing; (c) replace the Datawiza Service with non-infringing technology having substantially similar capabilities; or (d) if none of the foregoing is commercially practicable, terminate the applicable Datawiza Service or this Agreement. Notwithstanding the foregoing, Datawiza will have no liability to Customer for any claim arising out of or based upon the use of the Datawiza Service in combination with software, products or services not provided by Datawiza, or Customer’s failure to use the Datawiza Service in accordance with this Agreement, or Customer Data.
   2. Disclaimer. SECTION a STATES THE ENTIRE LIABILITY OF DATAWIZA, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY DATAWIZA OR ITS SERVICE OR TECHNOLOGY OR ANY PART THEREOF.
   3. By Customer. Notwithstanding anything to the contrary in Section a, Customer shall defend or, at its option, settle, any Claim brought against Datawiza alleging that the use by or on behalf of Datawiza in accordance with this Agreement of the Customer Data and/or any Datawiza’s data obtained pursuant to a request from Customer infringes or misappropriates any third party’s rights or violates applicable laws, and Customer will pay damages finally awarded against Datawiza (or the amount of any settlement Customer enters into) with respect to such claim defended by Customer; provided that Datawiza provides Customer with (i) prompt written notice of;  (ii) sole control over the defense and settlement of; and (iii) all information and assistance reasonably requested by Customer in connection with the defense or settlement of, any such claim. Datwiza may appear, at its own expense, through counsel reasonably acceptable to Customer.

5. DISCLAIMER; LIMITATION OF LIABILITY

   1. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, DATAWIZA HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, LOSS OF DATA, ACCURACY OF RESULTS, OR ARISING FROM COURSE OF DEALING OR RELIANCE. DATAWIZA DOES NOT WARRANT THAT THE DATAWIZA SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ITS SECURITY MEASURES WILL PREVENT THIRD PARTY ACCESS TO CUSTOMER DATA.  Datawiza has no obligation to obtain, collect, store or use any data or information from any source, except if in the public domain or if Customer has sufficient rights to such data as may be necessary to perform Datawiza’s obligations under this Agreement without infringing or violating rights of others or the applicable law.
   2. Limitation of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, DATA OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, WHETHER BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, PRODUCT LIABILITY OR OTHERWISE, EVEN IF THE OTHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR CUSTOMER’S PAYMENT OBLIGATIONS NEITHER PARTY’S TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE, WHICH SHALL BE ANNUALIZED IF LESS THAN 12 MONTHS HAVE ELAPSED UNDER THIS AGREEMENT.  THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.  THESE LIMITATIONS SHALL NOT APPLY IN THE EVENT OF A PARTY’S FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDCT, OR IN CONNECTION WITH A PARTY’SINDEMNIFICATION OBLIGATIONS HEREUNDER.

6. GENERAL PROVISIONS

   1. Assignment. Neither party may assign this Agreement nor any of its rights or obligations under this Agreement without the prior written consent of the other party, except that either party may assign this Agreement without the written consent of the other party as part of a corporate reorganization, upon a change of control, consolidation, merger, reincorporation, sale of all or substantially all of its assets related to this Agreement or a similar transaction or series of transactions.  Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns.
   2. Force Majeure. Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet.  The delayed party shall give the other party notice of such cause and shall use its reasonable commercial efforts to correct such failure or delay in performance.
   3. Governing Law and Dispute Resolution. This Agreement shall be governed by and construed under the laws of the State of California without reference to conflict of laws principles.  Any dispute, controversy, or claim arising out of or related in any way to your engagement with Datawiza, including but not limited to claims arising under or related to this Agreement or any breach of this Agreement, and any alleged violation of any federal, state, or local statute, regulation, common law, or public policy, shall be submitted to and decided by final binding arbitration.

      The arbitration shall be submitted and administered by the Judicial Arbitration & Mediation Services, Inc. (“JAMS”), and held in Northern District of California. Any arbitral award determination shall be final and binding upon the Parties. Judgment on the arbitrator’s award may be entered in any court of competent jurisdiction.

      By entering into this Agreement, the parties are waiving all rights to have their disputes heard or decided by a jury or in a court trial and the right to pursue any class or representative claims against each other in court, arbitration, or any other proceeding. The arbitrator shall have no jurisdiction or authority to compel any class or collective claim, or to consolidate different arbitration proceedings with or join any other party to an arbitration. The arbitrator, and not any court, shall have exclusive authority to resolve any dispute relating to the enforceability or formation of this Agreement and the arbitrability of dispute between the Parties.

   4. All disputes arising out of or related to this Agreement will be subject to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California, and the parties hereby agree and consent to the exclusive jurisdiction and venue of these courts.
   5. Miscellaneous. This Agreement (which includes the Exhibits, Orders, SOWs hereto) is the sole agreement of the parties concerning the subject matter hereof, and it supersedes all prior agreements and understandings with respect to said subject matter. The following order of precedence shall apply:  Order, this Agreement, Exhibits. No terms of any purchase order, acknowledgement or other form provided by Customer will modify this Agreement, regardless of any failure of Datawiza to object to such terms.  Any ambiguity in this Agreement shall be interpreted equitably without regard to which party drafted hereof. This Agreement may only be amended by a writing signed by both parties. This Agreement may be executed in counterparts. Any required notice shall be given in writing by customary means with receipt confirmed at the address of each party set forth below, or to such other address as either party may substitute by written notice to the other. Notices will be deemed to have been given at the time of actual delivery in person, 1 day after delivery to an overnight courier service, or 3 days after deposit in the mail. The relationship between the parties shall be that of independent contractors. Waiver of any term of this Agreement or forbearance to enforce any term by either party shall not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of this Agreement.  Any provision found to be unlawful, unenforceable or void shall be severed from the remainder of this Agreement, and the Agreement will continue in full force and effect without said provision.  Customer agrees to comply with all applicable export control laws and regulations related to its use of Datawiza Technology.

Version: February 15, 2022