TIESET INC., a Delaware corporation, with its principal place of business at 2436 Armstrong Place, Santa Clara, CA 95050 (“Vendor” or “TieSet”) provides its Services (as defined in §2 below) to you, the customer (“Customer”), (collectively Vendor and Customer may be referred to as the “Parties” and individually as a “Party”).  The date that Customer begins use of TieSet Services is the “Effective Date” of this Agreement.

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WHEREAS, Vendor is a developer and provider of Information Technology (“IT”) services, including distributed machine learning via a software platform and has developed and desires to advertise, promote, market and distribute the company's services and products; and,

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WHEREAS, Vendor owns the STADLE software core platform (“Software”).

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1. Acceptance of Terms

(A) TieSet provides its Service (as defined below) to you through its web site located at https://tieset.com (the “Site”), Application Programming Interface (“API”), or any mobile application (“Mobile App”), together with the Site and the API, “Application”) that TieSet may offer from time to time, subject to this Terms of Service Agreement (“TOS”).  BY ACCEPTING THIS TOS OR BY ACCESSING OR USING THE SERVICE OR SITE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS TOS. IF YOU ARE ENTERING INTO THIS TOS ON BEHALF OF A COMPANY, BUSINESS OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS TOS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS TOS, YOU MUST NOT ACCEPT THIS TOS AND MAY NOT USE THE SERVICE. ANY ACTIONS YOU, OR ANY OF YOUR EMPLOYEES, CONSULTANTS, AGENTS, REPRESENTATIVES, AND USERS TAKE ON THE SERVICE SHALL BE DEEMED TO HAVE OCCURRED ON BEHALF OF YOUR LEGAL ENTITY.

(B) YOU CAN REVIEW THE MOST CURRENT VERSION OF THIS TOS AT ANY TIME AT https://tieset.com/tos/. IF ANY TERM OF THIS TOS IS NOT ACCEPTABLE TO YOU, YOUR ONLY REMEDY IS TO STOP ACCESSING AND USING THE SERVICE.

 

2. Description of Service

The “Service” means (a) the Application, (b) all software (including the Software, as defined below), data, reports, text, images, sounds, video, and content made available through any of the foregoing (collectively “Content”) and all modifications thereto.  TIESET RESERVES THE RIGHT TO ALTER THE SERVICE AT ANY TIME. CERTAIN FEATURES OF THE SERVICE MAY NOT BE AVAILABLE IN ALL COUNTRIES. TIESET RESERVES THE RIGHT TO LIMIT OR MAKE AVAILABLE THE SERVICE OR PARTS OF THE SERVICE DEPENDING ON LOCATION. FOR EXAMPLE, CERTAIN FEATURES MAY BE LIMITED TO THE US OR TIESET MAY LIMIT THE AVAILABILITY OF SOME FEATURES OF THE SERVICES FOR SPECIFIC COUNTRIES AND/OR REGIONS.  TieSet occasionally develops and offers limited beta releases for new features. To participate in a beta release, you must explicitly agree to the additional terms and conditions for such beta release that are presented to you. This TOS does not necessarily cover a beta release.  The Service is provided “as-is”. That means the Service may include bugs that impact your ability to use the Service and/or may impact your business. TieSet is not liable for your use of the Service.

 

3. General Conditions / Access and Use of the Service

(A) Subject to the terms and conditions of this TOS, you may access and use the Service only for lawful purposes and in compliance with all applicable local, state, and federal laws. Certain features of the Service may be prohibited in your location. Prior to using the Service, you must ensure that any such use is permitted in your jurisdiction. You shall comply with any codes of conduct, policies or other notices TieSet provides you or publishes in connection with the Service, and you shall promptly notify TieSet if you learn of a security breach related to the Service. Without limiting any of the foregoing, you agree to comply, and require that your employees, consultants, agents, representatives, and users comply, with all applicable laws, whether federal, state, local or international.

(B) All rights, title and interest in and to the Service and its components will remain with and belong exclusively to TieSet. IN THE EVENT THAT YOU DOWNGRADE YOUR SERVICE OR YOU TERMINATE YOUR SERVICE, YOU WILL FORFEIT THE RELATED RIGHTS TO THE SERVICES. YOU SHALL NOT (A) SUBLICENSE, RESELL, RENT, LEASE, TRANSFER, ASSIGN, TIME SHARE OR OTHERWISE COMMERCIALLY EXPLOIT OR MAKE THE SERVICE AVAILABLE TO ANY THIRD PARTY; (B) USE THE SERVICE IN ANY UNLAWFUL MANNER OR IN ANY MANNER THAT INTERFERES WITH OR DISRUPTS THE INTEGRITY OR PERFORMANCE OF THE SERVICE OR ITS COMPONENTS, OR (C) MODIFY, ADAPT OR HACK THE SERVICE TO, OR OTHERWISE ATTEMPT TO GAIN UNAUTHORIZED ACCESS TO THE SERVICE OR ITS RELATED SYSTEMS OR NETWORKS.

(C) The Service is protected by copyright, trademark, and other laws of the United States and foreign countries. Except as expressly provided in the TOS, TieSet, its suppliers and licensors own all right, title and interest in and to the Service, including all associated intellectual property rights. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Service.

(D) Any software that may be made available by TieSet in connection with the Service (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of this TOS, TieSet hereby grants you a personal, non-transferable, non-sublicensable and non-exclusive right and license to use the object code of any Software on a single device solely in connection with the Service, provided that you shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code or sell, assign, sublicense or otherwise transfer any right in any Software. You agree not to access the Service by any means other than through the interface that is provided by TieSet for use in accessing the Service. Any rights not expressly granted herein are reserved and no license or right to use any trademark of TieSet or any third party is granted to you in connection with the Service.

(E) You are solely responsible for all data, information, feedback, content and other materials that you upload, post, deliver, provide or otherwise transmit or store (hereafter "transfer(ring)") in connection with or relating to the Service (“Your Content”). We have the right, but not the obligation, to remove any of Your Content that TieSet determines in our sole discretion to be offensive content. TieSet also has the right, but not the obligation, to limit or revoke the use privileges of anyone who posts such content or engages in unacceptable behavior on or through the Service. We reserve the right to delete Your Content if you cancel your account with us; however, Your Content will remain retrievable for thirty (30) days after the termination of your account. TieSet warrants that your data will be treated in accordance with its Privacy Policy and applicable law.

(F) TieSet may collect information about your use of the Service (“Usage Data”). Usage Data may be used for data analytics purposes to review, analyze, and optimize the Service.

(G) TieSet may collect information from third party services via integrations you initiate (“Connected Account Data”). Connected Account Data may be stored and processed by TieSet after an integration is disconnected for the purpose of providing the Service. Connected Account Data is maintained for the duration your account is active.

(H) You are responsible for maintaining the confidentiality of your login, password and account and for all activities that occur under your login or account. TieSet reserves the right to access your account for purposes that TieSet deems appropriate, for example to respond to your requests for technical support or account management. By transferring Your Content on or through the Service, You hereby do and shall grant TieSet a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully paid, sublicensable and transferable license to use, modify, reproduce, distribute, display, publish and perform Your Content in connection with the Service. TieSet has the right, but not the obligation, to monitor the Service, Content, or Your Content. You further agree that TieSet may remove or disable any Content at any time for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), or for no reason at all.

(I) You understand that the operation of the Service, including Your Content, may be unencrypted and involve (a) transmissions over various networks; (b) changes to conform and adapt to technical requirements of connecting networks or devices and (c) transmission to TieSet’s third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to operate and maintain the Service. Accordingly, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content. TieSet will have no liability to you for any unauthorized access or use of any of Your Content, or any corruption, deletion, destruction or loss of any of Your Content.

(J) The failure of TieSet to exercise or enforce any right or provision of this TOS shall not be a waiver of that right. You acknowledge that these TOS is an agreement between you and TieSet, even though it is electronic and is not physically signed by you and TieSet, and it governs your use of the Service and takes the place of any prior agreements between you and TieSet.

(K) TieSet reserves the right to use your name and/or company name as a reference for marketing or promotional purposes on TieSet’s website and in other communication with existing or potential TieSet customers. To decline TieSet this right you need to email support@tie-set.com stating that you do not wish to be used as a reference.

(L) TieSet reserves the right at any time to modify or discontinue, temporarily or permanently, your account and/or the Service (or any part thereof) with or without notice. TieSet shall not be liable to you or to any third party for any modification, price change, change in capacity or accessibility, suspension or discontinuance of the Service. TieSet may limit your use of the Service for any reason at all, in TieSet’s sole discretion. You agree that any termination or limitation of your access to the Service may be without prior notice, and you agree that TieSet will not be liable to you or any third party for such change or termination. If TieSet terminates this TOS or your access or use of the Service due to your breach of this TOS or any suspected fraudulent, abusive, or illegal activity, then termination of this TOS shall be in addition to any other remedies TieSet may have at law or in equity.

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4. Fees

(A) In consideration of Vendor’s obligations pursuant to this Agreement, Customer shall pay Vendor the rates and fees set forth in this Agreement or in any subsequent Service Agreement(s) for the Services rendered.  Such rates and fees shall be adjusted annually in conjunction with Vendor’s increased costs of doing business.  Vendor may also adjust its rates and fees throughout the Term in the event of a change to Customer’s network infrastructure (which change results in the dedication by the Vendor of either greater or fewer resources and/or time).

(B) Annual Fees: The Annual Fees (as set forth below or on any subsequent Service Agreement(s)) shall be due and payable monthly in advance on the first day of each calendar month of the Term and as the same may be extended without prior demand for and without any deductions, set-offs or abatements whatsoever, with the first payment due upon the execution of this Agreement by both Parties but no less than thirty (30) days prior to commencement of the Services.

(C) Billed work: All other invoices and sales taxes shall be invoiced monthly and shall be due and payable within thirty (30) days after date of Vendor’s invoice (business standard “Net 30”).  Upon each subsequent Renewal Date, Vendor reserves the right to increase the Annual Fees and/or Hourly Rates by the greater of:  (i) five percent (5%) above/in excess of the prior year’s fees and rates; or, (ii) the increase in the Consumer Price Index over the preceding twelve (12) months, as published by the US Department of Labor (for all urban consumers in the appropriate geographic business district; and/or, (iii) a commercially reasonable amount that reflects changes to the Customer’s infrastructure needs. 

(D) Late Fees: All sums due Vendor under this Agreement or in any subsequent Service Agreement(s), if unpaid within thirty (30) days of the date due, shall bear interest from such date until paid, at a rate equal to one and one-half percent (1.5%) per month, or the maximum rate permitted by law, on the entire overdue amount for each calendar month, or fraction thereof, that any payment to the Vendor is in arrears; provided Customer has received three ( 3) Business days notice of such nonpayment.

(E) Disputed Amounts: If at any time Customer disputes in good faith any portion of an invoice from Vendor, Customer must pay all monies except for the good faith amount disputed; but such withheld good faith amounts are subject to a Late Fee of one and one-half percent (1.5%) per month unless the underlying amounts are waived.  If Customer withholds any amount more than the amount disputed in good faith, Vendor may interpret such act by Customer as an Anticipatory Breach and may take any and all actions to obtain remedies available under this Agreement, at law or in equity.  If in fact a disputed amount is proven to be in error, Vendor will issue a credit to Customer before or on the next monthly invoice sent to Customer.

(F) Taxes: Customer shall pay all taxes based on or in any way measured by this Agreement or any Services related hereto, excluding taxes based on Vendor’s net income.  If Customer challenges the applicability of any such taxes, it shall pay the same to Vendor and Customer may thereafter challenge such tax and seek refund.

(G) Refund of Fees: In the event of a termination of this Agreement for reasons other than Customer’s default, the Customer shall be entitled to a refund of any unearned portion of such Fees theretofore paid.

 

5. Limited Warranty

Vendor represents and warrants to Customer as follows:

(A) Intellectual property warranties:

1. At the time the Services are rendered, it will have all the rights, authorizations and licenses necessary to provide the Software to License hereunder. Otherwise, Vendor provides the Software to Customer “as is”.  Vendor makes no warranties or representations that the Software is free of errors of defects, or that it adequately performs the functions that it is intended to perform.  Customer shall test the Software in order to ensure its acceptability for Customer’s purpose prior to putting the Software into productive use.  Vendor is under no obligation to update or correct defects or errors in the Software.  If Vendor does provide Customer with updates or corrections, the terms and conditions of this Agreement shall apply.  THE SOFTWARE IS PROVIDED “AS IS” AND VENDOR MAKES NO OTHER WARRANTIES WITH RESPECT TO THE SOFTWARE INCLUDING BUT NOT LIMITED TO THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

2. In fulfilling its obligations to provide the Services during the Term of this Agreement, Vendor will, to the extent commercially reasonable, keep all Vendor-supplied software and hardware resources used by Vendor to provide the Services (excluding third party software and hardware resources installed on Customer’s system) properly maintained and current relative to such industry products and standards and the software and hardware maintenance recommendations of the respective vendors.

3. In the event that Customer approves Vendor to purchase third party software and/or hardware for installation on Customer’s system, upon Customer’s full payment to Vendor, Vendor will transfer any outstanding rights to Customer.

(B) In performing the services hereunder, including any customizations or enhancements made to the Software, Vendor will use commercially reasonable efforts to minimize the risk of undue interruption of the normal business operations of Customer.

(C) ​Customer, Vendor and their employees, agents, and contractors, shall at all times perform hereunder in a professional and competent manner in accordance with commercially accepted industry standards.

 

6. Negation of Warranty

(A) The express warranties set forth in §5 (“Limited Warranty”) above shall not apply to the extent the Services provided by Vendor are delayed or fail to comply as a result of any of the following: (i) unauthorized actions, delay or inaction of Customer, Customer personnel or third parties (not Vendor’s employees, agents, representatives or contractors); (ii) failure of software, equipment and/or internet service providers (hereinafter or other third parties not administered by Vendor; (iii) incompatibility of software or hardware installed by Customer or third parties (not including Vendor's agents, representatives or contractors) after the effective date of this Agreement; (iv) by Customer or third parties (not including Vendor's employees, agents, representatives or contractors) of any work product provided by Vendor to Customer, unless the same has been authorized by Vendor; (v) damage or of hardware software, equipment and/or ISP or other third parties not caused by Vendor's employees, agents, or contractors; (vi) acts of God, flood, fire, or other war, the public enemy, governmental acts or any and all other events of force majeure or failure of common or any other event or failure out of the Vendor's reasonable control; (vii) failure of to perform any of its duties set forth in §17 of this Agreement.

(B) EXCEPT TO THE EXTENT SET FORTH ABOVE IN §VIII: (i) VENDOR DOES NOT WARRANT THE SERVICES PERFORMED HEREUNDER OR THE ACCURACY OR CORRECTNESS OF THE RESULTS OF THE SERVICES; (ii) VENDOR DOES NOT WARRANT ANY THIRD PARTY SOFTWARE PURCHASED FOR OR BY CUSTOMER IN CONNECTION WITH THIS AGREEMENT, OR THAT SUCH SOFTWARE WILL MEET OR CONTINUE TO MEET MANUFACTURER SPECIFICATIONS; (iii) VENDOR DOES NOT WARRANT THAT ANY OR ALL ERRORS, MALFUNCTIONS AND DEFECTS CAN OR WILL BE CORRECTED; (iv) THE WARRANTY IS EXCLUSIVE AND THE VENDOR DOES NOT MAKE, AND CUSTOMER SPECIFICALLY WAIVES, ALL WARRANTIES,  EXPRESSED  OR  IMPLIED, WITH RESPECT TO THE SERVICES PROVIDED PURSUANT TO THIS AGREEMENT AND  ALL  CORRECTIONS, PROGRAMS, INFORMATION, OFFICE SPACE, EQUIPMENT; SERVICES ARE PROVIDED ON AN “AS IS”  BASIS  AND THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OF THE COMPUTER EQUIPMENT, SOFTWARE, INFORMATIONAL CONTENT, OR FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, OR ANY OTHER USE; AND, (v) THERE IS NO WARRANTY AGAINST INTERFERENCE WITH CUSTOMER’S ENJOYMENT OF SOFTWARE, OR ANY OF THE COMPUTER, DATA OR VOICE SYSTEMS OR ANY OF THE EQUIPMENT, OR AGAINST THE RIGHTS. INCLUDING BUT NOT LIMITED TO ANY INTELLECTUAL PROPERTY RIGHTS OF ANOTHER.

 

7. Term and Termination

​(A) (1) Unless otherwise stated, this Agreement shall commence on the Effective Date and, unless otherwise terminated as provided herein, shall remain in full force and effect; provided that Customer is not in default under this Agreement. These general terms shall remain in full force and effect beyond each Renewal Date and until all Service Agreements are properly terminated, subject to the Survivability clause of this Agreement (please see §20(S) below). Due to the nature of providing these services and as industry standards appropriately establish, specific Service Agreements shall automatically renew on the Renewal Date unless written notice of non-renewal is delivered by either Party to the other pursuant to this Agreement and not less than ninety (90) days prior to the expiration date of the then-current Term of the Agreement, notwithstanding subsequent subsections of this §7 that may supersede this provision.

(B) This Agreement may be terminated upon the occurrence of one or more of the following; provided, however, that the terminating Party shall have no liability to the other Party (other than for accrued but unpaid fees) for the exercise of any rights granted in this paragraph, nor shall such exercise have the effect of waiving any rights, claims, or damages to which the terminated Party might be entitled:

(1) By Vendor, if Customer fails to pay Vendor any amounts of any nature required by Customer to be paid hereunder within thirty (30) days from the invoice date for Services rendered;
(2) By either Party if the other Party becomes insolvent or seeks protection, voluntarily or involuntarily, under any bankruptcy law; or,
(3) By either Party, if the other Party is in default of any provision of this Agreement or subsequent agreements hereto, provided written notice of such alleged default has been given to the other Party and such other Party has not cured such default within fifteen (15) days after receipt of such notice, or default cannot reasonably be cured within fifteen (15) days.

(C) In the event of any termination of this Agreement or subsequent Agreements hereto by Vendor for Customer's uncured breach, Vendor may, in addition to any and all remedies available in this Agreement or subsequent agreements hereto, at law or in equity:

(1) Declare all amounts, including damages, expenses, attorneys’ fees and disbursements owed to it hereunder due to Services performed or otherwise, to be immediately due and payable;
(2) Cease performance of all Services hereunder without liability of any nature to Customer.

(D) In ​​the event of any termination of this Agreement by Customer by reason of Vendor's insolvency or pursuant to §20(R), Vendor shall refund to Customer, within sixty (60) days of such termination, an amount equal to the difference , if any, between the amounts owed to Vendor by Customer (x), and a pro-rated portion of the prepaid Annual Fee(s) paid by Customer to Vendor for the month in which the termination occurred (y), based on the number of days remaining in the period for which such Annual Fee(s) was(were) paid.

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8. Limitation of Liability

(A) In no event shall either Party be liable to the other Party, regardless of form of action, whether contract or tort, including negligence actions or claims, for any indirect, special, consequential or punitive damages, or similar damages, or for claims made by any third parties, even if the possibility of such claims or damages was disclosed; and liability shall not extend to claims or lost profits arising out of or relating to this Agreement or subsequent agreements, or the performance of Services hereunder or any breach thereof, unless such damages or lost profit are the result of gross negligence or willful misconduct of such Party; provided however, that in no event shall Vendor's liability to Customer (if any), for any reason whatsoever, exceed the sum total amount of all of the Annual Fees (as set forth in this Agreement or any subsequent agreement) actually paid to Vendor by Customer during the twelve (12) months preceding discovery of the alleged occurrence.

(B) Exculpatorv Clause If Vendor shall be liable hereunder to Customer for damages, Customer shall, subject to the provisions of this §8, look only to the assets of Vendor for the satisfaction of Customer's remedies, if any, and not to any of the assets of any employees, owners, shareholders, officers, partners, trustees, affiliates, and/or directors.

 

9. Indemnification

(A) Vendor shall have no liability to Customer for infringement of any third party proprietary software or hardware rights as a result of or related to this Agreement, Service Agreement(s), any subsequent agreement or to any corrections, programs, information, work product or Services provided to Customer by Vendor hereunder.

(B) Customer hereby agrees to indemnify and hold harmless Vendor and subsidiaries, their shareholders, directors, officers. employees, agents and assigns under its control against any and all actions or claims and/or losses, liabilities, awards, costs, and expenses including legal fees and expenses for any actions or claims (i) brought by a third party software- or hardware-related Vendor, which software or hardware was purchased by Customer or by Vendor for the benefit and at the instruction of Customer; (ii) brought by any third party resulting from Customer’s use of any of the Services described herein and/or in this Agreement; and, (iii) which Vendor may incur as a result of or in connection with Customer’s failure to comply with the terms, covenants and provisions of this Agreement.

(C) Customer shall defend and settle at its sole expense all suits or proceedings arising out of the foregoing, provided that Vendor gives Customer prompt notice of any such claim of which it is actually aware of.  In any action, claim or proceeding brought against Vendor arising out of the foregoing, Customer shall pay all of Vendor’s costs and expenses incurred in connection therewith including attorneys’ fees and costs.  Subject to the provisions and limitations set forth in §§8, 9 and 20 of this Customer Agreement, Vendor shall indemnify and hold harmless Customer from and against any and all losses, costs, and expenses arising from (i) Vendor breach of this Agreement; or, (ii) gross negligence or willful misconduct of Vendor; provided that such indemnification shall not affect the limitation on Vendor’s liability as set forth at §8 above.

(D) In the event of any occurrence giving rise to indemnification, the indemnified Party shall (i) give prompt notice thereof to the indemnifying Party; (ii) reasonably cooperate in the choosing of counsel; (iii) reasonably cooperate in the defense of such claim; and, not settle such claim, if same still pertains to the indemnifying Party, without the prior written consent of the indemnifying Party, which consent shall be reasonable in nature.

 

10. Privacy; EU Data Protection

Please visit https://tieset.com/privacy/ to understand how TieSet collects and uses personal information. Information on how TieSet complies with EU Data Protection Laws including the Irish Data Protection Acts as amended and the General Data Protection Regulation (Regulation (EU) 2016/679) can be found by visiting https://tieset.com/gdpr/.

 

11. Confidentiality

(A)

1. Both Parties hereto understand that during the term of this Agreement, each Party may have access to unpublished, proprietary and otherwise confidential information related to actual or anticipated business and/or business strategies, both of a technical and non­technical nature, relating to each other's and each Party's affiliates' technology or the implementation or exploitation thereof, or otherwise, including, information pertaining to strategies, positions, Customers, partners, staff, size, and data, tapes, software, applications, supplier lists, customer lists, customer data, marketing information, investments, investment strategies, investor identities and financial information, documentation, records and all copies of the foregoing of any kind and any materials bearing or containing any of the foregoing (collectively, hereinafter “Confidential Information”).  All Customer Confidential Information, unless otherwise specifically indicated to Vendor by Customer, may have pecuniary value to Customer and is deemed to be confidential, proprietary and trade secret in nature.  All Vendor Confidential Information unless otherwise specifically indicated to Customer by Vendor, may have pecuniary value to Vendor and is deemed to be confidential, proprietary and trade secret in nature.  As between Vendor and Customer, Customer owns all right, title and interest in and to all of Customer’s Confidential Information, and Vendor owns all right, title and interest in and to all of Vendor’s Confidential Information.  At all times, both during Customer’s use of Vendor’s Services and after the cessation of said Services, whether the cessation is voluntary or involuntary, for any reason or no reason, or by disability, both Parties will keep in strictest confidence and trust all of the other Party’s Confidential Information and anything related thereto, and will not disclose, transfer, use or permit the use, transfer or disclosure of, any such information or rights pertaining to Confidential Information, and anything related thereto, without the other Party's written consent. Vendor may use or disclose Customer’s Confidential Information to Vendor’s employees on a need-to-know basis, and only to the extent as may be necessary in the ordinary course of Vendor performing its Services for Customer, provided that its employees are bound by confidentiality provisions appropriate to the standards required by the provisions contained in this §11.

2. Each Party may disclose the other’s Confidential Information to its representatives, contractors, subcontractors and consultants provided that (i) none of the foregoing competes with the other Party, (ii) the disclosing Party only discloses the other Party’s Confidential Information on a need-to-know basis and only to the extent as may be necessary for Vendor to perform its Services for Customer, and (iii) such representatives, contractors, subcontractors and consultants are bound by confidentiality obligations appropriate to the standards required in the performance of Vendor’s Services.  Vendor may disclose Confidential Information to third party vendors providing software and hardware products and services, provided that (i) Vendor first notifies Customer; (ii) Vendor’s disclosure is limited to information required to resolve issues for the Customer; and, (iii) Vendor’s disclosure is only to those individuals at that vendor on a need-to-know basis, and only to the extent necessary for Vendor to perform its Services for Customer.

3. Upon the termination or expiration of this Agreement or upon request, the Parties shall promptly return or destroy all of the other Party’s Confidential Information that is in its possession or under its control, or that is under the possession or control of the Party's representatives, contractors, subcontractors or consultants to whom Confidential Information has been disclosed, and if requested, certify in writing to that all Confidential Information has been returned or destroyed, as applicable.

4. Notwithstanding the foregoing, Confidential Information does not include information that (i) is or becomes publicly available other than through a breach of this Agreement by a Party, its employees, agents or representatives, contractors, subcontractors or consultants; (ii) a Party can demonstrate is known to or is in the its possession or any of its employees, agents or representatives and at the time of disclosure there was no obvious indication that the Confidential Information had been obtained by way of a breach of any other confidentiality agreement; (iii) after disclosure becomes known to or comes into possession of the Party or any of its employees, agents or representatives (other than as a result of breach of this Agreement) from a third party that the Party, or such employee, agent or representative reasonably believes after reasonable investigation is not under any obligation of confidentiality with respect to, and is lawfully in the possession of, such information; or, (iv) only to the extent required to be disclosed by order of a court of competent jurisdiction, administrative agency or governmental body, or by subpoena, summons or other legal process, or by law, rule or regulation, or by applicable regulatory  or professional standards, provided that prior to such disclosure, the non-disclosing Party is given reasonable advance notice of such order and an opportunity to object to such disclosure; provided however, that said disclosed information is still Confidential Information to the Parties hereto and any and all other entities and persons besides the receiving party (ie: court or agency) and disclosing Party will instruct said receiving party to treat as such and disclosing Party will continue to treat as such. The non-disclosing Party shall pay complying Party’s reasonable expenses for such compliance.

(B)

1. Without limiting the remedies available to Vendor, which may include money damages, Customer acknowledges that its breach of this §11 may result in material, irreparable injury to Vendor for which there is no adequate remedy at law, that it may not be possible to measure damages for such injuries precisely, and that, in the event of such a breach or threat thereof, Vendor will be entitled to seek a Temporary Restraining Order and/or Preliminary Injunction (without posting any bond or other security) restraining Customer from engaging in activities prohibited in this §11 or such other relief as may be required to enforce any of the provisions of this §11.

2. Without limiting the remedies available to Customer, which may include money damages, Vendor acknowledges that its breach of this §11 may result in material, irreparable injury to Customer for which there is no adequate remedy at law, that it may not be possible to measure damages for such injuries precisely, and that, in the event of such a breach or threat thereof, Customer will be entitled to seek a Temporary Restraining Order and/or Preliminary Injunction (without posting any bond or other security) restraining Vendor from engaging in activities prohibited in this §11 or such other relief as may be required to enforce any of the provisions of this §11.

(C) Third Party Confidentiality

1. The Parties recognize that the Parties may have exchanged and in the future likely will exchange with third parties, Confidential Information (as defined herein), subject to a duty on both Parties and third parties’ parts to maintain the confidentiality of such information and to use it only for certain limited purposes consistent with the Parties’ agreements with such third parties.

2. The Parties recognize that they may have received and in the future likely will receive from third parties the third parties’ confidential and/or proprietary information, subject to a request or similar order described in §11(A)(4)(iv).  The Parties may comply with such request or order provided that the complying Party notifies the other Party to this Agreement (from whom it obtained said third party Confidential Information) promptly upon receipt thereof, unless such notice is prohibited by law, so that the other Party may inform the targeted third party, if required and permissible.  The complying Party’s reasonable expenses for such compliance shall be paid by the other Party, whose third party is the target of said information request.

 

12. Non-exclusive Appointment

(A) Upon acceptance of this Agreement by Vendor, Customer is hereby appointed a nonexclusive Customer of the Products pursuant to this Agreement.  Customer accepts such appointment and agrees to serve as a Customer of the Products to end users as provided herein.  Customer understands and shall inform end-users (hereinafter, “Customers”) that the use of the Products is dependent upon Customers agreeing and adhering to the TieSet End User License Agreement (“EULA”), where applicable, which shall be provided by Customer to each Customer accordingly.

(B) This Agreement is not exclusive to Customer and Vendor reserves the unrestricted right to sell, license, market and distribute or to grant to others the right to sell, license, market and distribute the Products and value-added versions thereof anywhere in the world.  Customer shall not purchase the Products for Customer’s own use, or for resale to a sister company having the same effect.

 

13. License Granted

(A) Customer is hereby authorized to grant Customers a limited, non-exclusive, non-transferable, and non- assignable license to download, install, and use a single copy of each software Product onto a single network server or workstation.  Customer shall have the right to sub-license and distribute the Products to Customers pursuant to the terms and limitations of this agreement.  Such License shall also be subject to the provisions of all Exhibits, including the TieSet EULA.  Customer may not reproduce or distribute any Product bundled with the products of any other person or entity.

(B) Customer shall have no rights to Source Code to any Product and Customer shall not have any rights to create any Derivative Works or make translations of the Products and shall not (i) copy, modify or reproduce a Product or accompanying documentation in any (ii) reverse engineer, disassemble, decompile, recompile or make extracts from such Products or attempt to determine the Source Code, nor permit others to do so; (iii) remove, obscure or alter the Vendor's proprietary notices, any accompanying EULA (iv) incorporate a Product into any other software or hardware product; nor (v) private label any Product or any portion thereof or include any other party's marks or legends on a Product or any portion thereof.
(C) No License is granted for any Use or reproduction of any Product for which the required royalty or fees have not been made by Customer.
(D) Vendor retains all ownership rights to all applicable copyrights, trade secrets trademarks, service marks, trade names and other intellectual property rights in the Products. user as a complete product.
(E) Vendor grants Customer a non-exclusive, free license to use Vendor's trademarks, service marks, and trade names for the purpose of advertising, promoting, merchandising and marketing the Products. Customer shall discontinue all use of Vendor's marks and names promptly upon the termination or expiration of this Agreement.​

(F)  Customer consents to the listing of its business name, address. phone number and web site addresses in such Vendor advertising and promotional materials as Vendor may determine in its sole discretion, including product literature and Vendor’s web sites.  During the term of this Agreement, Vendor may provide to Customer promotional materials with respect to Products.  Customer may not use the promotional materials for any purpose other than advertising and promoting the Products to Customers in the market.  Notwithstanding anything to the contrary herein, Customer may not distribute any Customer-created promotional materials with respect to Vendor or the Products without Vendor’s prior written approval of such materials.

 

14. Prior Agreements Are Valid, Binding and Enforceable

In the event that an agreement was fully executed by both Customer and Vendor prior to this Customer Agreement, any conflicting terms shall be superseded by this Agreement, except that in no way will this Agreement serve to replace the financial amounts contained in any prior agreement without written consent by both Parties.  Any prior agreements executed by Customer and the Vendor are incorporated herein by reference as if fully set forth herein at length notwithstanding any clauses in conflict and superseded herein.  In the event that any provision contained in any prior agreement conflicts with any provision contained in this Agreement, the provision contained in this Agreement shall prevail and the provision contained in the prior agreement will be deemed null and void, and all other provisions contained in the prior agreement that do not conflict with this Agreement shall remain valid, binding and enforceable, and arc incorporated herein by reference as if fully set forth at length.  The Parties agree that this Agreement constitutes the complete agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations and understandings, written or oral, regarding said subject matter.

 

15. Delivery of Property and Work Product

In the event that Vendor ceases to provide Services for Customer for any reason, the Parties will deliver to each other all devices, records, sketches, reports, memoranda, notes, proposals, lists, correspondence, equipment, documents, photographs, photostats, negatives, undeveloped film, drawings, specifications, tape recordings or other electronic recordings, programs, data, software, hardware and other materials or property of any nature belonging to the other  Party and/or the other Party’s Customers and/or customers, and will not take with or retain, or allow a third Party to take or retain, any of the foregoing or any reproduction thereof.

 

16. Duties of Vendor

(A) During the Term hereof, Vendor shall perform the Services specified in this , the Service Agreement(s) or subsequent agreements,sherebyapproved by Customer with respect to the specific scope of work to be performed and subject to their execution of appropriate confidentiality agreements with Customer, to engage qualified consultants, vendors and/or independent contractors to perform the Services on behalf of Vendor.Vendor shall be for the supervision and performance of such consultants, agents, suppliers, vendors, and/or independent contractors.

(B) Vendor may offer Customer and Customers technical training for the Products from time-to-time upon reasonable request from Customer at Vendor’s then-current charges for such training.  All training will be provided remotely unless Vendor, in its sole discretion, agrees to offer training at another location.

(C) At Vendor’s reasonable discretion, and to the extent practicable, Vendor may perform Services and Support via remote access to Customer’s and Customers’ System(s) per this Customer Agreement, the applicable Service Agreement(s) or subsequent agreements.

 

17. Duties of Customer

​(A) During the Term of this Agreement, Customer shall provide Vendor with any and all available resources, including information, documentation, technical assistance and access to the applicable computer, server, networking and/or voice systems (including via remote access) as Vendor may reasonably require in performing its duties hereunder.

(B) Customer is responsible for maintaining appropriate environmental conditions, including appropriate cooling devices and appropriate power for all applicable computer, server, networking and/or voice infrastructure and shall inform Customers that such shall be adhered to as well.

(C) Customer hereby agrees to maintain in full force and effect license(s) for any and all software serviced by Vendor for the Term of this Agreement. If, for any reason, Customer docs not maintain a license for software, then Vendor may, in its sole and absolute discretion, cease providing any and all Services to Customer.

(D) Vendor shall be relieved of its duties hereunder to the extent that its failure to perform any or all Services is caused by Customer’s failure to comply with any of the foregoing provisions of this section (§17).

 

18. Non-Solicitation

(A) The Parties agrees that during the period Vendor is providing Services to Customer hereunder, and for a period of eighteen (18) months thereafter, neither Party will, without the other Party’s prior written consent, directly or indirectly, solicit, employ, retain the services of, interfere with or attempt to entice away from the other Party, or any affiliate of the other Party, any person who was an employee, independent consultant, contractor or agent of the other Party at any time during which Vendor was providing Services to Customer.

(B) The Parties understand that employees, consultants and independent contractors of the Parties, including directors, officers, managers, technicians and staff (hereinafter “Party Hires”), have signed agreements with the Parties which include covenants, including confidentiality agreements, but also provisions that such Party Hires shall not accept employment or engagement with any Customer of their employer’s Customers. It is also understood that such agreements are enforceable under the laws of the State of California and that the Parties may have the right to take legal action against any signatory to an arrangement whereby Party Hire accepts employment or engagement with a Customer without the prior written consent of its employer or in violation of the covenants contained in the employer’s proprietary agreements with the Party Hires.

 

19. Insurance

(A) Both Parties assert they are insured at or beyond the minimums required to conduct business in the State Californiaor, in the situation where Vendor employees, agents or assigns will be doing work for the Customer in a jurisdiction other than the State of California, Customer asserts that is properly insured at the minimums required conduct business in thatjurisdiction and shall inform Customers that such shall be maintained as well.

(B) The Parties represent that they currently maintain separate and sufficient insurances and ensure that same is in full force and effect with respect to equipment and other property, the performance of duties hereunder, any effectsame may have on each other and Vendor’s and with respect to themselves and to each and anyoftheir or subcontractors whomaybeengaged inconnectionwiththisAgreementorsubsequentagreementshereto or otherwise, including statutory requirements for conducting business in the State of California for (i) insurance to cover Worker’s Compensation; (ii) blanket fidelity bond coverage in an amount equal to that amount which the Party normally carries; (iii) computer crime coverage; and, (iv) property and broad form comprehensive general liability insurance and such other insurance as is customarily maintained with respect to general business activities.

(C) Customer shall provide proof of such insurance reasonably acceptable to Vendor within ten (10) of execution of this Agreement if Vendor so requests.In order for Vendor to performunderthisitwillbe requiredtofileaCertificate ofInsurance (“COI”) withCustomer’slandlord(s)anduponrequestwill carbon copy Customer.Upon request, and no more than once per calendar year, unless Customer pays any and costs related to Vendor’s of such, Vendor shall provide to Customer, and/or to Customer’s a COI evidencing that Vendor maintains the requested insurance coverage, provided that the requestedcoverageisreasonablewithregardtothestandardcoverage required for an IT services provider performing the services performed by Vendor forCustomer.

(D) In the event that any such insurance policies should be changed, lapse, or no longer maintained, for whatever reason, the Party undergoing the change in coverage shall immediately notify the other of such change.

 

20. General

(A) Independent Contractors: The relationship between Vendor and Customer created by this Agreement shall be that of independent contractors. Nothing contained in this Agreement shall be construed as constituting a partnership or agency between Parties.

​(B) Governing Law This Agreement shall be deemed to be executed in the City of Santa Clara, State of California regardless of the domicile of Customer and shall be governed by and construed in accordance with the laws of the State of California, without regard to the jurisdiction's conflicts of law provisions. Both Parties agree that any claims asserted by or against each other arising under this Agreement, or any Service Agreement(s) or subsequent agreement hereto, shall be heard and determined exclusively either in the Courts of the United States. located in the City of Santa Clara or in the Courts of the State of California located in the County of Santa Clara. THE PARTIES HERETO HEREBY AGREE TO WAIVE ANY OBJECTIONS TO SUCH JURISDICTION AND/OR VENUE AND TO WAIVE TRIAL BY JURY.

(C) Arbitration: The parties agree that any dispute with respect to any matter covered under this TOS, including any disputed claim for indemnification, will be subject to the provisions of the California Code of Civil Procedure and the rules of the American Arbitration Association (AAA).  The Parties agree that the arbitrator's, or panel’s, ruling in the arbitration shall be final and binding and not subject to appeal or challenge.  Notwithstanding the foregoing, the Parties shall have a right to injunctive or other equitable relief. The language of the arbitration shall be English. You and TieSet shall attempt to mutually select the arbitrator. In the event we are unable to mutually agree, the arbitrator shall be selected by the procedures prescribed by the AAA rules. Each party shall bear its own attorneys’ fees, expert witness fees, and costs associated with any arbitration pursuant to this §20(C).

(D) Entire Agreement: Each Party acknowledges that it has read this Agreement and will read any Service Agreements hereto or subsequent, will understand such, and agrees to be bound by the terms and further agrees that this Agreement and any Service Agreements attached hereto are the complete and exclusive statement of the agreement between the Parties with respect to the subject matter hereof, and supersedes and merges all prior proposals, understandings, and all other agreements, oral and handwritten, between the Parties relating to the subject matter of this Agreement hereto.  Customer acknowledges that there were no representations or promises made by Vendor on which Customer has relied in entering into this Agreement that are not expressly stated herein or in this Agreement or subsequent agreements hereto.

(E) In the event of a conflict between the provisions of this Customer Agreement and any Service Agreement(s) or subsequent agreements, the terms and conditions of this Agreement take precedence unless the terms and conditions of the Service Agreement(s) or subsequent agreement(s) expressly give precedence therein.  With exception to the financial terms described in §4 (Fees), this Agreement may not be modified or altered except by written instrument duly executed by both Parties.

(F) Contract Interpretation

(i) Article,sectionand paragraph numbers and captions arc provided for convenience of reference and do not constitute a part of this Agreement.Any referencestoaparticularSectionof this Agreement shall bedeemed toreferencetoanyandallsubsectionsthereof.

(ii) Despitethepossibility that one Party or may have prepared the initial draftthisAgreementoranyprovisionthereof,orwastheforemost participant the preparation of subsequent drafts, the agree thatneitherPartyshallbedeemedtobethedrafterofthisCustomer Agreement and any Service Agreement(s) or subsequent agreement(s) hereto, and that in construing and interpreting this Agreement, no provision hereof shall be construed or interpreted in favor of one Party for the reason that such provision was drafted by the other Party.

(iii) Compliance Customer shall maintain all documentation required by Customer in order to comply with all existing foreign or domestic statutes, ordinances, regulations, rules or laws which may relate to Vendor’s performance of Services or actions hereunder, during the entire Term of this Agreement.  Vendor reserves the right to reasonably request and review all such applications, permits, licenses, etc., prior to, and at any time during, the Term of this Agreement, all Service Agreement(s) or subsequent agreement(s).  Customer shall be exclusively responsible at its own expense for compliance with all local laws relating to the Products in the countries in which Customer sells the Products.

(G) Severability and Enforceability: If any individual provision of this Customer Agreement, Service Agreement(s) or subsequent agreement(s) shall be held to be invalid, illegal, or otherwise unenforceable under any applicable statute or rule of law, it is to that extent to be deemed omitted and the validity, legality and enforceability of the remaining provisions of this Customer Agreement, Service Agreement(s) or subsequent agreements shall in no way be affected or impaired thereby.

(H) No Waiver: The failure of either Party to exercise in any respect any right provided for herein shall not be or deemed a waiver of any right hereunder.  No waiver of any condition in this Agreement shall be implied by any omission of Vendor to enforce any remedy on account of the violation of any such condition and no receipt of money by Vendor after the termination, in any way, of the Term hereunder or after the giving of any Notice shall reinstate, continue or extend the Term hereof or affect any Notice given to Customer.  No modification, waiver or amendment to this Customer Agreement shall be binding unless such modification, waiver or amendment is in a written instrument duly executed by both Parties.

(I) Assignment: This Agreement and any Service Agreement(s) or subsequent agreement(s) and the rights and duties hereunder shall not be assignable by the Parties except upon the prior written consent of the other which consent shall not be unreasonably withheld; provided however, for the purposes of this provision, a sale of all or substantially all of Vendor’s assets to a third party, the sale of fifty percent (50%) or more of the Vendor’s interest to a third party, or the merger, consolidation or other business combination of Vendor with a third party shall not require consent.  Customer may assign its rights and duties hereunder to any current or future parent, affiliate or subsidiary having a net worth equal to or greater than that of Customer, as evidenced by then-current certified financial statements provided that Customer shall give Vendor written Notice ninety (90) days prior, such financials and any other information reasonably requested by Vendor.

(J) Modifications: TieSet may change this TOS from time to time with at least thirty (30) days prior notice. You can review the most current version of this TOS at any time at https://tieset.com/tos/. “Prior notice” means the revised terms and conditions will be posted on the Service. If you use the Service within thirty (30) days after the notice had been posted, your use will constitute acceptance of the revised terms and conditions. If any change to this TOS is not acceptable to you, your only remedy is to stop accessing and using the Service.

(K) Supervision: Customer acknowledges that it does not have any authority or power to supervise or otherwise direct or regulate the employees, consultants, contractors, agents or operations of the Vendor.

(L) Miscellaneous: Submission of this Agreement for examination shall not bind Vendor in any manner and no obligation on Vendor shall arise until Customer begins use of the TieSet Services.

(M) Force Majeure: Parties hereto shall not be responsible for any failure or delay the performance of any obligation hereunder caused by Acts of God, inclement weather, fire, or other casualty, vandalism, the public enemy, governmental or federal agency action, or failure of commoncarriers.

(N) Expenses: Each Party shall be responsible for, and shall pay, all expenses paid or incurred by it related to the  planning,  negotiation and completing of this Agreement.

(O) Notices: Unless otherwise provided herein, all Notices given hereunder shall be in writing and sent via with proof of and by nationally recognized overnight courier providing a receipt, or by hand delivery with a receipt obtained, or by registered or certified return receipt addressed to the Partiesat the addresses first stated above (eg:to TieSet, Inc., “Attn:Contracts Department”), or at such other address as the Parties shall designate in writing and attached hereto viaamendment.

(P) Notice to California Residents: Under California Civil Code Section 1789.3, California users take notice of the following consumer rights notice: If you have a question or complaint regarding the Service, please send an email to support@tie-set.com.

(Q) Headings: The headings herein are for convenience only and are not intended to have any substantive significance in interpreting this Agreement.

(R) Insolvency: At any time during the term of this Agreement, either Party may terminate this Agreement upon thirty (30) days written notice if (a) the other Party (i) becomes (ii) voluntarily commences any proceeding or files any petition under the bankruptcy laws of United States, (iii) becomes subject to any involuntary bankruptcy or insolvency proceedings under the laws of the United proceedings are not dismissed within thirty (30) days, (iv) makes an assignment for the benefit of its or (v) appoints a receiver, trustee, custodian liquidator for a substantial portion of property, assets or the other. Party passes a resolution for its winding up or dissolution or acourt of competent jurisdiction makes an order for such other Party’s winding up or dissolution.

(S) Survivability The provisions of this Agreement relating to confidentiality, fees, warranties, negations of warranties, intellectual property rights and indemnifications, limitations of liability, term and termination and the general provisions in this section (§20) shall survive any termination or expiration of this Agreement.