Terms of Service

Part I — Subscription Terms

1. License and Support

1.1

Subject to the terms and conditions of this Agreement, Senkron hereby grants to Customer and its Affiliates a limited, non-exclusive, non-transferable, non-sublicensable license for Customer's employees and contractors to (1) internally use, reproduce, modify, prepare derivative works based upon, and display the code of Senkron software (the "Software"), solely for its internal use; and (2) modify the Software and publish patches to the Software, solely at the level of usage for which Customer has paid Senkron. Customer agrees that Senkron and/or its licensors retain all right, title and interest in and to all Software incorporated in such modifications and/or patches.

"Affiliate" means any entity controlling, controlled by, and/or under common control with a party hereto, where "control" means the ownership of more than 50% of the voting securities in such entity. "User" means each individual end-user of Customer and/or its Affiliates with access to the Licensed Materials hereunder.

1.2

Subject to the terms hereof, Senkron will provide reasonable support to Customer for the Licensed Materials as set forth on the 'Features' page, for the support plan selected and paid for by Customer. In the event that Customer does not reasonably comply with written specifications or instructions from Senkron's service engineers regarding any support issue, Senkron may terminate its support obligations upon fifteen (15) days' written notice if Customer does not cure such noncompliance within the notice period.

1.2.1 Senkron will use reasonable commercial efforts to respond to support questions by Discord, email or in-app chat. The number of support questions is not limited.

2. Restrictions and Responsibilities

2.1

Except as expressly authorized in Section 1.1, Customer will not, and will not permit any third party to: use the Licensed Materials for any purpose other than as specifically authorized; use the Licensed Materials for timesharing or service bureau purposes; use the Licensed Materials in connection with any high risk or strict liability activity (including without limitation, space travel, firefighting, police operations, power plant operation, military operations, hospital and medical operations); or use the Licensed Materials in any manner that is harmful, fraudulent, deceptive, threatening, abusive, or contains a virus, trojan horse, worm, or other harmful computer code.

2.2

Customer will cooperate with Senkron in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required. Customer shall maintain during the term of this Agreement and through the end of the third year after the date of the final payment, books, records, contracts and accounts relating to payments due Senkron (collectively, the "Customer Records"). Senkron may, upon 30 days' prior written notice, hire an independent third party auditor to audit the Customer Records to verify the amounts payable under this Agreement.

2.3

Customer will be responsible for maintaining the security of Customer's account, passwords (including but not limited to administrative and User passwords) and files, and for all uses of Customer account with or without Customer's knowledge or consent.

3. Confidentiality

3.1

Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's technology or business (hereinafter referred to as "Proprietary Information" of the Disclosing Party). Without limiting the foregoing, the Licensed Materials are Senkron Proprietary Information.

3.2

The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information. Nothing in this Agreement will prevent the Receiving Party from disclosing Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice.

3.3

Each party acknowledges and agrees that the other may suffer irreparable damage in the event of a breach of the terms of Sections 1.1, 2.1 or 3.2 of this Agreement and that such party will be entitled to seek injunctive relief (without the necessity of posting a bond) in the event of any such breach.

3.4

Both parties will have the right to disclose the existence of the relationship between the parties, but not the terms and conditions of this Agreement, unless such disclosure of the Agreement terms is approved in writing by both Parties prior to such disclosure.

4. Intellectual Property Rights

4.1

Except as expressly set forth herein, Senkron alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Licensed Materials and any suggestions, ideas, enhancement requests, feedback, code, or other recommendations provided by Customer relating to the Licensed Materials, which are hereby assigned to Senkron. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Licensed Materials, or any intellectual property rights.

4.2

Customer shall not remove, alter or obscure any of Senkron's copyright notices, proprietary legends, trademark or service mark attributions, patent markings or other indicia of Senkron's ownership from the Licensed Materials.

4.3

Customer and its licensors shall have and retain all right, title and interest (including sole ownership) of all software, information, content and data provided by or on behalf of Customer ("Content"). If Senkron receives any notice or claim that any Content infringes or violates the rights of a third party (a "Claim"), Customer will indemnify, defend and hold Senkron harmless from all liability, damages, settlements, attorney fees and other costs in connection with any such Claim.

4.4

Senkron will defend, indemnify and hold Customer harmless from liability resulting from (i) the infringement or violation of any intellectual property or proprietary rights by the Licensed Materials or (ii) the violation of applicable law or regulation by Senkron in performance of its obligations hereunder, provided Senkron is promptly notified of any and all threats, claims and proceedings related thereto.

5. Payment of Fees

5.1

Customer will pay Senkron the applicable fees described in the Order Form or Quote for the Licensed Materials. Senkron reserves the right to change the Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer. If Customer believes that Senkron has billed Customer incorrectly, Customer must contact Senkron no later than 60 days after the closing date on the first billing statement in which the error appeared.

5.2

Senkron may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Senkron according to the payment terms specified in the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection.

5.3

Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature. You are solely responsible for paying all Taxes associated with your purchases hereunder. If we have a legal obligation to pay or collect Taxes for which you are responsible, we shall invoice you and you shall pay that amount to us unless you provide us with a valid tax exemption certificate.

5.4

Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form or Quote, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term, unless either party requests termination with at least thirty (30) days notice.

6. Termination

6.1

This Agreement shall continue until terminated in accordance with this Section 6. Either party may terminate this Agreement upon 30 days' written notice to the other party hereto in the event that Customer has no then-current subscription with respect to the Licensed Materials.

6.2

Customer may terminate this Agreement at any time upon written notice to Senkron. Either party may terminate this Agreement immediately upon 30 days' written notice to the other party in the event of any material breach of this Agreement by such party where such material breach is not cured during such notice period.

6.3

Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings (provided such proceedings are not dismissed within 120 days), (ii) upon the other party's making an assignment for the benefit of creditors, or (iii) upon the other party's dissolution or ceasing to do business without a successor.

6.4

Customer's rights to the Licensed Materials, and any licenses granted hereunder, shall terminate upon any termination of this Agreement. In the event that Customer terminates this Agreement pursuant to Section 6.2, Senkron will refund to Customer a pro-rated portion of pre-paid Fees for Services not actually received by Customer as of the date of such termination.

7. Warranty; Customer Software Security

Senkron represents and warrants that (i) it has all rights and licenses necessary for it to perform its obligations hereunder, and (ii) it will not knowingly include any computer code or other instructions that are intentionally designed to disrupt, disable, harm, infect, defraud, damage, or otherwise impede the operation of a network, computer program or computer system. If Senkron fails to comply with this warranty, Customer may notify Senkron in writing and Senkron will, within thirty (30) days, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance.

10. U.S. Government Matters

Customer may not provide to any person or export or re-export the Licensed Materials in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. The Licensed Materials will not be used or transferred to countries as to which the United States maintains an embargo ("Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders.

11. Miscellaneous

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect. This Agreement is not assignable, transferable or sublicensable by either party without the other party's prior written consent; provided that either party may transfer and/or assign this Agreement to a successor in the event of a sale of all or substantially all of its business or assets. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes all previous written and oral agreements. No agency, partnership, joint venture, or employment is created as a result of this Agreement.

12. Data Privacy

Customer shall ensure that any and all information or data, including without limitation, personal data, used by Customer in connection with the Agreement ("Customer Data") is collected, processed, transferred and used in full compliance with Applicable Data Protection Laws and that it has obtained all necessary authorizations and consents from any data subjects to process Customer Data. Customer shall adopt and maintain appropriate organizational, technical and security measures prior to any such collection, processing or transfer in order to protect against unauthorized access to or use of Customer Data.

Part II — Professional Services Terms

PS 1. Services

1.1

Senkron will provide Customer with software-related professional services ("Services") as set forth in mutually agreed and signed Order Forms or Quotes (each an "SOW"). At Customer's request, the SOW may include an estimate of charges for the Services, but such estimate shall not be binding on Senkron or convert the SOW into a fixed price contract. Senkron may provide Services through its third-party contractors but will remain subject to the obligations hereunder.

1.2

Customer must assign a project manager who will assume responsibility for management of the project. Customer will establish the overall project direction and must provide Senkron with such facilities, equipment and support as are reasonably necessary for Senkron to provide Services. Senkron owns and will own all right, title and interest to the Services and any work product generated from the Services ("Work Product").

1.3

The parties will work together to determine a mutually agreed upon schedule based on the availability of Senkron resources and the agreed-upon project timeline. Services are non-cancellable. Accordingly, upon execution of an SOW, Customer will be liable for the entire amount quoted under the SOW.

PS 2. Payment and Taxes

2.1

Unless otherwise stated in the applicable SOW, Senkron will invoice Customer for all Services and applicable charges as Senkron renders the Services or charges are incurred. Any unpaid fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys' fees.

2.2

Fees under this Service Agreement are exclusive of all taxes. Customer agrees to pay such taxes unless Customer has provided Senkron with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Senkron on account thereof.

PS 5. Warranty

Senkron represents and warrants that during the term of the applicable SOW and continuing for ninety (90) days after the completion of Services, Senkron will render all Services under such SOW with reasonable care and skill. If Senkron fails to comply with this warranty, Customer may notify Senkron in writing and Senkron will, within thirty (30) days, either correct the noncompliance or provide Customer with a plan for correcting the noncompliance.

PS 9. Data Privacy

Customer shall ensure that any and all information or data, including without limitation, personal data, used by Customer in connection with the Agreement ("Customer Data") is collected, processed, transferred and used in full compliance with Applicable Data Protection Laws and that it has obtained all necessary authorizations and consents from any data subjects to process Customer Data. Customer shall immediately inform Senkron upon becoming aware of any breach within the meaning of Applicable Data Protection Law relating to Customer Data (a "Security Incident") and cooperate with Senkron in any investigation thereof.

If required by Applicable Data Protection Laws, the parties will enter into standard contractual clauses under GDPR for the transfer of any Customer Data outside of the European Union. "Applicable Data Protection Laws" means any applicable laws, statutes or regulations as may be amended from time to time which relate to personal data including without limitation GDPR (Regulation (EU) 2016/679).