End User Purchase and License Agreement

PLEASE READ THIS END USER PURCHASE AND LICENSE AGREEMENT (“AGREEMENT”).

BY DOWNLOADING OR INSTALLING 365 STRIKER (“SOFTWARE”) or PARTNER SOFTWARE, OR BY OBTAINING OR USING 365 STRIKER NETWORKS EQUIPMENT (“EQUIPMENT”), INCLUDING SUCH EQUIPMENT THAT CONTAINS SOFTWARE, YOU AND ANY ENTITY YOU REPRESENT (“CUSTOMER”) AGREE TO BE BOUND BY THIS AGREEMENT WITH 365 STRIKER AVISORY. (“365 STRIKER”). IF CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THEN DO NOT OBTAIN, DOWNLOAD, INSTALL OR USE THE SOFTWARE OR EQUIPMENT.

The following terms govern Customer’s license, purchase, acquisition and/or use of any Software or Equipment, except to the extent particular Software or Equipment (a) is the subject of a separate written agreement between Customer and 365 Striker; or (b) includes or references or is referenced in a separate purchase order, invoice or other agreement issued or agreed to by 365 Striker (collectively, a “Purchase Agreement”).

If any Software or Equipment is identified in a Purchase Agreement, Customer shall be subject to both this Agreement and the Purchase Agreement, including any additional terms and conditions contained in such Purchase Agreement; provided, however that any direct conflict between a term in the Purchase Agreement and this Agreement shall be resolved in favor of such Purchase Agreement.

The Software available to Customer under this Agreement or a Purchase Agreement is set forth on 365 Striker’s website or upon request from 365 Striker.

The Equipment available for sale to Customer under this Agreement or a Purchase Agreement is set forth on 365 Striker’s website or upon request from 365 Striker.

This Agreement is organized into the following sections:

1. License Terms
2. Purchase and Logistical Terms
3. Protection of Information
4. Warranties and Liabilities
5. Compliance with Laws and this Agreement
6. General Provisions

1. License Terms

Limited License Grant to Software.

Subject to Customer’s compliance with the Limitations and Restrictions section of this Agreement, including, without limitation, Customer’s payment of any applicable Fees, 365 Striker grants to Customer a limited, revocable, nonexclusive, non-sublicensable and non-transferable license, during the term of any license (the “License Term”) to:

(1) download, install and use such Software only for Customer’s internal business purposes;
(2) reproduce, copy, modify, and create derivative works of any such Software that is provided in source code format, only for Customer’s internal business purposes; provided, however, that if any Software is provided in source code format, Customer shall not create any derivative works of the Software that contain Open Source Software nor shall Customer use the Software or a portion thereof to merge with, link to, make function calls to, or share data structures with any Open Source Software, if any such combination or use of the Software would require the Software to be made available royalty free or in source code form;
(3) use the Software in conjunction with Third Party Software in a manner consistent with the terms of this Agreement;
(4) review the Software including, without limitation, unpacking archives (such as ZIP, SWI and RPM files provided by 365 Striker), and accessing underlying operating system facilities; and
(5) extend the Software provided in source code format and linking Customer-developed software to the Software.

As used in this Agreement, “Open Source Software” means any software made available by a third party under a license approved by the Open Source Initiative, or any substantially similar license. If there is no License Term specified herein or in any Purchase Agreement, 365 Striker may terminate the License Term at any time upon written notice to Customer.

Limitations and Restrictions.

Except as otherwise expressly provided in this Agreement, the foregoing Software license grant excludes any right to, and Customer shall not:

(1) distribute, sell, transfer, lease, loan, host, assign or sublicense the Software or Customer’s license rights under this Agreement, whether voluntarily or by operation of law, to any third party, directly or indirectly, and any such attempted transfer, assignment or sublicense shall be void;
(2) use or allow use of the Software on any hardware other than the Equipment;
(3) modify, reproduce, decompile, decrypt, disassemble, reverse engineer, create derivative works of, translate or otherwise reduce to human-readable form any Software (other than Software that is provided in source code format); gain access to trade secrets or confidential information in the Software; circumvent any copy-protection, hardware version controls, or license enforcement; or attempt to do any of the foregoing, except to the extent expressly permitted by applicable law;
(4) combine, commingle, or integrate any Software with Open Source Software or incorporate Open Source Software into any Software that may add any additional Open Source Software requirements, obligations, or licensing terms to the Software;
(5) disclose to any third party any results of benchmarking or other testing generated in connection with Customer’s use of Software, including without limitation any comparisons of the Software or Equipment with any other products;
(6) provide a third party with a copy of or access to the Software (including, without limitation, source code), in any manner;
(7) remove from the Software (or fail to include in any copy) any readme files, notices, headers, disclaimers, marks or labels; and
(8) use or allow use of the Software in violation of any applicable law or regulation or to support or facilitate any illegal activity.

Notwithstanding any other provision of this Agreement, Customer shall not attempt to circumvent any security or access restrictions relevant to Software versions or features therein. Customer shall be liable to 365 Striker for any damages, injury or harm caused to 365 Striker as a result of Customer’s violation of any of these limitations or restrictions.

Evaluation License.

365 Striker may make certain Software available in object code form to end users only for evaluation, training or other limited non-commercial purposes without charging a Fee (“Evaluation License”). Where 365 STRIKER has provided an Evaluation License, all of the terms of this End User Purchase Agreement shall apply except that (i) Customer’s license rights shall be limited to the evaluation of that Software, (ii) Customer shall not be required to pay a Fee for the evaluation of that Software and (iii) 365 Striker shall have the right to revoke the license to the Software at any time and for any reason.

Updates.

The terms and conditions of this Agreement shall apply to any upgrades, updates, bug fixes or modified versions (collectively, “Updates”) or additional copies of the Software. Notwithstanding any other provision of this Agreement: (1) Customer has no license or right to use any such Updates or additional copies unless Customer, at the time of acquiring them, already holds a valid license to the Software associated with such Updates and has paid any required Fees for such Software; and (2) use of additional copies of the Software is limited to backup purposes only. By downloading or using any Updates, Customer’s rights with respect to the Updates are subject to the terms of the latest revision of this Agreement posted at the time of receipt of the Updates, 365 Striker‘s then-current policies and procedures, and the Purchase Agreement for the Software associated with such Updates.

Proprietary Notices.

Customer agrees to maintain and reproduce all copyright and other proprietary notices on all copies, in any form, of the Software in the same form and manner that such copyright and other proprietary notices are included on the Software. Except as expressly authorized in this Agreement, Customer may make such backup copies of the Software as may be necessary for Customer’s lawful use, provided Customer affixes to such copies all copyright, confidentiality, and proprietary notices that appear on the original.

Third Party Software.

The Software may be distributed alongside certain third party software (“Third Party Software”, together with the Software, the “Package”) provided under separate license terms (the “Third Party Terms”).

INFORMATION REGARDING THIRD PARTY SOFTWARE PROVIDED TO CUSTOMER BY 365 STRIKER IS SET FORTH IN MORE DETAIL THROUGH THE APPLICABLE SOFTWARE’S HELP MENU.

Notwithstanding any licenses granted in this Agreement or a Purchase Agreement, Customer acknowledges that certain components of the Software may be covered by Open Source Software licenses of third parties (“Open Source Components”). 365 Striker shall provide a list of Open Source Components for a particular version of the Software upon Customer’s request.

To the extent required by the open source licenses applicable to the Open Source Components, the terms of such licenses will apply to such Open Source Components in lieu of the terms of this Agreement. To the extent the terms of the open source licenses applicable to an Open Source Component prohibit any of the restrictions in this Agreement with respect to such Open Source Component, such restrictions will not apply to such Open Source Component.

To the extent the terms of the open source licenses applicable to the Open Source Components require 365 Striker to make an offer to provide source code or related information in connection with Open Source Components, such offer is hereby made. Any request for source code or related information should be directed only to anca@365Striker.com. Customer acknowledges receipt of notices for the Open Source Components for the initial delivery of the Software.

Commercial Item.

The Software and associated documentation are “commercial items” as defined at FAR 2.101 comprised of “commercial computer software” and “commercial computer software documentation” as those terms are used in FAR 12.212. Consequently, regardless of whether Customer is United States Government or a department or agency thereof, Customer shall acquire only those rights with respect to the Software and associated documentation that are set forth in this Agreement.

Trust-Based Licensing Model.

Certain Software licensed under this Agreement may not include programmatic license enforcement. It is Customer’s responsibility to ensure compliance with this Agreement, including, without limitation, all applicable restrictions set forth herein or in any Purchase Agreement. By adopting this trust-based licensing model, 365 Striker does not waive its right to enforce any aspect of this Agreement at any time. Additionally, 365 Striker’s knowledge of Customer’s use of the Software beyond the scope of the license shall not operate as a waiver of 365 Striker’s rights to enforce the terms of this Agreement under any legal or equitable doctrine.

2. Purchase and Logistical Terms

Fees and Payments.

Unless otherwise specified in a Purchase Agreement, any license, subscription, purchase or acquisition fees (the “Fees”) with respect to Software or Equipment are due and payable in U.S. Dollars no later than thirty (30) days after the date of invoice or first use of the Software or receipt of the Equipment by Customer, whichever is earlier.

Late invoices shall be subject to interest of 1.5% per month (or the maximum rate permitted by law if less) plus any expenses of collection. Customer shall reimburse 365 Striker for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available herein or at law (which 365 Striker does not waive by the exercise of any rights hereunder), 365 Striker shall be entitled to suspend the delivery or use of any Software or Equipment if Customer fails to pay any amounts when due hereunder. In addition, 365 Striker may require a security deposit, letter of credit or other reasonable assurances of a Customer’s creditworthiness. If a security is not paid or 365 Striker continues to have concerns about Customer’s creditworthiness, 365 Striker may amend the payment terms to require advance payment in full or terminate the Agreement.

365 Striker reserves the right to suspend and/or terminate access to the Software or Equipment if any Fees payable hereunder are past due. Such suspension or termination shall not relieve Customer from its obligation to pay all amounts due under this Agreement.

Customer agrees and acknowledges that any license, subscription, purchase or acquisition (“Purchase”) of Software or Equipment shall, unless otherwise set forth in a Purchase Agreement, be at the prices set forth in 365 Striker’s published prices in force as of the date 365 Striker accepts and agrees to Customer’s Purchase.

All prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Customer. Customer shall be responsible for all such charges, costs and taxes. All prices are exclusive of export, import and other duties, tariffs and customs charges, and any other similar duties and charges of any kind imposed by any governmental authority.

Customer may not and shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with 365 Striker, whether relating to 365 Striker’s alleged breach, bankruptcy or otherwise.

Taxes.

The Fees do not include any foreign, federal, state or local taxes, or any sales, use, excise, ad valorem, value-added, withholding or other taxes or duties that may be applicable to the purchase of Software (collectively, “Taxes”). Fees pursuant to this Agreement may not be reduced to reflect any Tax or other mandatory payment to government agencies. When 365 Striker has the legal obligation to collect Taxes related to any invoice, unless Customer provides 365 Striker with a valid and acceptable tax exemption certificate prior to issuance of said invoice, the appropriate amount shall be added to Customer’s invoice and paid by Customer. If a tax authority subsequently finds that any Tax payment related to any sale or service to Customer was insufficient and requires additional payment by 365 Striker, 365 Striker will make such payment and Customer will reimburse 365 Striker for such additional Tax payments (including, without limitation, any interest, levies, and penalties). 365 Striker will not be responsible for any Taxes or other amount assessed to Customer by any government agency based on Customer’s net income, gross revenue, or for any other reason.

Installation.

Customer is responsible for installing the Software and any Equipment, unless Customer purchases installation services from 365 Striker pursuant to a separate agreement.

Delivery.

The Software or Equipment will to the extent applicable be delivered within a reasonable time after the receipt of Customer’s purchase order or other Purchase Agreement, subject to availability. Any delivery dates are non-binding. 365 Striker shall not be liable for any delays, loss or damage in transit. Unless otherwise agreed in writing by the parties, delivery shall be made FCA (Incoterms 2020) shipping point.

Title and risk of loss passes to Customer upon delivery at the shipping point. As collateral security for the payment of the Fees, Customer hereby grants to 365 Striker a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Software and Equipment, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code.

Customer shall not be liable for any non-delivery (even if caused by 365 Striker’s negligence) unless Customer gives written notice to 365 Striker of the non-delivery within ten (10) days of the date when the Software or Equipment would in the ordinary course of events have been received. Any liability of 365 Striker for non-delivery shall be limited to replacing Software or Equipment within a reasonable time or adjusting the invoice respecting such Software or Equipment to reflect the actual quantity delivered, as 365 Striker may determine in its sole discretion.

Customer will be deemed to have accepted the Software and Equipment unless it notifies 365 Striker in writing of any Non-conformance within ten (10) days of receipt and furnishes such written evidence or other documentation as required by 365 Striker. “Non-conformance” means only the following: (i) product shipped is different than identified in Customer’s purchase order or other Purchase Agreement; or (ii) product’s label or packaging incorrectly identifies its contents. If Customer timely notifies 365 Striker of any Non-conformance, 365 Striker shall, in its sole discretion, (i) replace the Software or Equipment, or (ii) credit or refund the price for such non-conformance.

Customer acknowledges and agrees that the remedies set forth in this section are Customer’s exclusive remedies for non-conformance or other issues with delivery or non-Conformance.Except as provided herein, all sales to Customer are made on a one-way basis and

Customer has no right to return anything purchased under this Agreement to 365 Striker.

Term and Termination.

This Agreement is effective until terminated.

In the event this Agreement is terminated as otherwise set forth herein or in a Purchase Agreement, Customer shall immediately destroy all copies of Software including, without limitation, any documentation, and shall return any and all Equipment as required by any applicable Purchase Agreement.

Customer’s rights under this Agreement will terminate immediately without notice from 365 Striker if Customer fails to comply with any provision of this Agreement.

If Customer’s Purchase Agreement for any Software states that the license for that Software is “Perpetual,” then the License Term applicable to that Software is perpetual, subject only to termination for nonpayment of Fees or other breach of this Agreement.

If Customer’s Purchase Agreement for any Software states that the license for that Software is a subscription (“Subscription Software”), then the License Term applicable to that Software is for the time period identified in such Purchase Agreement, subject to early termination for nonpayment of applicable Fees or other breach of this Agreement. In addition, with respect to any Subscription Software, this Agreement, and the license rights afforded hereunder, shall terminate with respect to such Subscription Software upon the earlier of the completion of any License Term for such Subscription Software or immediately upon the failure of Customer to pay any subscription Fees when due and owing to 365 Striker.

If no License Term is specified in any Purchase Agreement for any Software, the License shall be terminable at any time upon written notice from 365 Striker to Customer.

Upon termination or expiration of this Agreement for any reason, (a) Customer shall immediately cease using any Software and must destroy or return to 365 Striker all copies of the Software and associated documentation in its possession or control; and (b) Customer shall promptly pay to 365 Striker any amounts owed under this Agreement, including, without limitation, any unpaid Fees.

In addition to any remedies that may be provided herein, 365 Striker may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of the terms herein or in any Purchase Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

Suspension.

Notwithstanding anything to the contrary herein, 365 Striker may temporarily suspend Customer’s access to or right to use any portion or all of the Software or Equipment if 365 Striker reasonably determines that (i) there is a threat or attack on the Software or any of 365 Striker’s intellectual property rights; (ii) Customer’s use of the Software or Equipment disrupts or poses a security risk or to any other customer or vendor of 365 Striker; (iii) Customer is using the Software or Equipment for fraudulent or illegal activities or in violation of any provision of this Agreement; (iv) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding.

3. Protection of Information

Confidential and Proprietary Information.

All non-public, confidential or proprietary information of 365 Striker, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by 365 Striker to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement (“Confidential Information”) is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by 365 Striker in writing.

Upon 365 Striker’s request, Customer shall promptly return all Confidential Information received from 365 Striker. 365 Striker shall be entitled to injunctive relief for any violation of this provision.

This provision does not apply to information that is: (a) in the public domain; (b) known to Customer prior to the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party. If the parties entered into a separate confidentiality or non-disclosure agreement (“NDA”), then in the event there is a conflict between the NDA and this Agreement, the provision that is more protective of 365 Striker’s Confidential Information shall control.

Protection of Information.

Customer agrees that the Software, Equipment, and associated documentation, including, without limitation, the specific design and structure of individual programs, constitute trade secrets and/or copyrighted material of 365 Striker. Customer shall not disclose, provide, or otherwise make available such trade secrets or copyrighted material in any form to any third party without the prior written consent of 365 Striker. Customer shall implement reasonable security measures to protect such trade secrets and copyrighted material. Customer must take security measures sufficient to reasonably safeguard the licensed Software from theft or from access by persons other than Customer’s or its affiliates’ authorized employees or agents.

Reservation of Rights.

The Software and documentation are owned by 365 Striker and its licensors, and is protected by copyright, patent, trademark, and trade secret laws of the United States and other jurisdictions, international conventions, and all other relevant intellectual property and proprietary rights, and applicable laws.

As between Customer and 365 Striker, the Software, including without limitation intellectual property rights therein and thereto, are the sole and exclusive property of 365 Striker or its subsidiaries or affiliated companies and/or its third-party licensors. All Software is licensed to Customer, not sold. 365 Striker reserves all rights not expressly granted in this Agreement, and no rights or licenses shall be deemed or interpreted to be granted or transferred hereunder, whether by implication, estoppel, or otherwise. Customer shall not provide the Software, Equipment, documentation, or details regarding the operation of the Software and/or Equipment, or any other confidential and/or proprietary information to any third party.

Subject to the express rights and licenses granted by 365 Striker in this Agreement, Customer acknowledges and agrees that: any and all 365 Striker’s intellectual property rights are the sole and exclusive property of 365 Striker or its licensors; Customer shall not acquire any ownership interest in any of 365 Striker’s intellectual property rights under this Agreement; any goodwill derived from the use by Customer of 365 Striker’s intellectual property rights inures to the benefit of 365 Striker or its licensors, as the case may be; if Customer acquires any intellectual property rights in or relating to any Software or any Equipment purchased under this Agreement (including any rights in any trademarks, derivative works, or patent improvements relating thereto), by operation of law, or otherwise, these rights are deemed and are hereby irrevocably assigned to 365 Striker or its licensors, as the case may be, without further action by either party; and Customer shall use 365 Striker’s intellectual property rights solely in connection with the permitted use of the Software or Equipment purchased under this Agreement and only in accordance with this Agreement and the instructions of 365 Striker. Customer shall not delete or modify any mark or other indication regarding the confidential nature of 365 Striker’s Confidential Information or 365 Striker’s intellectual property rights.

Aggregated Statistics.

Notwithstanding anything to the contrary herein, 365 Striker may monitor Customer’s use of the Software and Equipment and collect and compile data and information related to such use in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Software (“Aggregated Statistics”). As between 365 Striker and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by 365 Striker. Customer acknowledges that 365 Striker may compile Aggregated Statistics based on Customer’s data input into the Software or Equipment. Customer agrees that 365 Striker may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.

Customer acknowledges that, as between 365 Striker and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the information, data, and other content, that is submitted, posted, or otherwise transmitted by or on behalf of Customer through the Software but excluding Aggregated Statistics (“Customer Data”). Customer hereby grants to 365 Striker: (i) a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for 365 Striker to provide the Software and its functionality and facilitate the use of the Software or Equipment by Customer, and (ii) a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.

Feedback.

If Customer sends or transmits any communications or materials to 365 Striker in any form or format, and by any means, including via social media, suggesting or recommending changes to the Software or the Equipment, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), 365 Striker is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback. Customer hereby assigns to 365 Striker on Customer’s behalf, all right, title, and interest in, and 365 Striker is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although 365 Striker is not required to use any Feedback.

4. Warranties and Liabilities

Limited Software Warranty and Disclaimers.

Subject to the terms and conditions of this Agreement, for any Software identified in a Purchase Agreement, 365 Striker warrants for a period of 90 days from the Start Date that (i) the media on which the Software is delivered will be free of defects in material and workmanship under normal authorized use consistent with the product instructions and (ii) the Software will perform substantially in accordance with 365 Striker’s standard specifications. The sole and exclusive remedy of the Customer and the entire liability of 365 Striker under this limited software warranty shall be (i) for 365 Striker to replace the defective media, and (ii) at 365 Striker’s option, to repair, replace or refund the Fees paid for such Software. This limited warranty extends only to the original Customer. The “Start Date” shall mean the date when the Customer is granted access to the Software on the 365 Striker website or when the Software is shipped from 365 Striker’s facilities or from an authorized 365 Striker reseller to Customer, as applicable.

No warranty will apply if the 365 Striker Equipment or Software (i) has been altered, except by 365 Striker; (ii) has not been installed, operated, repaired, or maintained in accordance with instructions supplied by 365 Striker in the applicable documentation; or (iii) has been subjected to unreasonable physical, thermal or electrical stress, misuse, negligence, or accident. In addition, the 365 Striker Equipment and Software are not designed or intended for use in (i) the design, construction, operation or maintenance of any nuclear facility; (ii) navigating or operating aircraft; or (iii) any life-saving, life-support or life-critical medical equipment, and 365 Striker disclaims any express or implied warranty of fitness for such uses. Customer is solely responsible for assessing the suitability of the 365 Striker Equipment and Software for use in particular applications and for backing up its programs and data to protect against loss or corruption. 365 Striker’s limited warranty obligations do not include installation support.

EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, 365 STRIKER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SOFTWARE OR EQUIPMENT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, ANY SOFTWARE AND EQUIPMENT ARE FURNISHED “AS IS,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED. 365 STRIKER DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, AND ANY WARRANTY, REPRESENTATION OR ASSURANCE THAT THE SOFTWARE, OR ANY EQUIPMENT OR NETWORK RUNNING THE SOFTWARE, WILL OPERATE WITHOUT ERROR OR INTERRUPTION, OR WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK. CUSTOMER MAY NOT MAKE A WARRANTY CLAIM AFTER EXPIRATION OF THE 90-DAY WARRANTY PERIOD. 365 STRIKER MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.

EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE, ALL EXPRESS OR IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR MEETING CUSTOMER’S REQUIREMENTS, NONINFRINGEMENT OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS, COMPATIBILITY OR INTEROPERABILITY WITH ANY HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY 365 STRIKER, SATISFACTORY QUALITY, OR FREEDOM FROM INTERRUPTION OR ERROR, ARE HEREBY DISCLAIMED AND EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED, SUCH WARRANTY IS LIMITED IN DURATION TO THE 90-DAY WARRANTY PERIOD OR OTHERWISE TO THE MAXIMUM EXTENT PERMITTED BY LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER.

THIS LIMITED WARRANTY SET FORTH ABOVE GIVES CUSTOMER SPECIFIC LEGAL RIGHTS, AND CUSTOMER MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM JURISDICTION TO JURISDICTION.

365 STRIKER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

365 Striker shall not be liable for a breach of the limited warranty set forth above unless: (i) Customer gives written notice of the defect, reasonably described, to 365 Striker within ten (10) days of the time when Customer discovers or ought to have discovered the defect; (ii) 365 Striker is given a reasonable opportunity after receiving the notice to examine such Software and Equipment and (if requested to do so by 365 Striker) returns such Software and Equipment to 365 Striker’s place of business at 365 Striker’s cost for the examination to take place there; and (iii) 365 Striker reasonably verifies Customer’s claim that the Software and/or Equipment are defective.

365 Striker shall not be liable for a breach of the limited warranty set forth above if: (i) Customer makes any further use of such Software or Equipment after giving such notice; (ii) the defect arises because Customer failed to follow 365 Striker’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Software or Equipment; (iii) Customer alters or repairs such Software or Equipment without the prior written consent of 365 Striker; (iv) the Software or Equipment have been subjected to abnormal physical or electrical stress, misuse, negligence, or accident or improper storage, transportation, installation or use; (v) Customer did not install a required update; or (vi) any of the conditions set forth herein are not met.

With respect to any such Software or Equipment, 365 Striker shall, in its sole discretion, either: (i) repair or replace such Software or Equipment (or the defective part) or (ii) credit or refund the price of such Software or Equipment at the pro rata contract rate provided that, if 365 Striker so requests, Customer shall, at 365 Striker’s expense, return such Software or Equipment to 365 Striker.

THE REMEDIES SET FORTH ABOVE SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND 365 STRIKER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH HEREIN.

IF ANY DISCLAIMER OR WAIVER SET FORTH HEREIN IS UNENFORCEABLE IN ANY JURISDICTION, THE DISCLAIMER AND/OR WAIVER SHALL BE AMENDED AND ENFORCED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

Disclaimer of Liabilities.

IN NO EVENT WILL 365 STRIKER OR ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, SUPPLIERS OR LICENSORS BE LIABLE TO CUSTOMER OR ANY THIRD-PARTY FOR ANY LOST REVENUE OR PROFIT, LOSS OF DATA, LOSS OF USE, DIMINUTION IN VALUE, COSTS OF PROCUREMENT OF ANY SUBSTITUTE, OR FOR SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING NEGLIGENCE), ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE SOFTWARE OR EQUIPMENT, EVEN IF 365 STRIKER OR ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES ARE FORESEEABLE.

IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF 365 STRIKER, ITS DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, SUPPLIERS OR LICENSORS TO CUSTOMER OR THIRD-PARTIES ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE SOFTWARE, OR THE EQUIPMENT, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNTS ACTUALLY PAID TO 365 STRIKER BY CUSTOMER FOR THE SOFTWARE OR EQUIPMENT THAT IS THE SUBJECT OF SUCH CLAIM IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE WHEN NOTICE OF SUCH CLAIM WAS PROVIDED HEREUNDER.

THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE ABOVE-STATED WARRANTY FAILS OF ITS ESSENTIAL PURPOSE.

BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES OR DAMAGES RESULTING FROM GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH, OR BODILY INJURY, THE ABOVE LIMITATION MAY NOT APPLY TO CUSTOMER OR IN SUCH CASES. IN ANY SUCH CASE, THE FOREGOING LIMITATIONS WILL BE APPLIED TO THE GREATEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW.

Indemnification.

Customer shall defend 365 Striker and hold 365 Striker, its affiliates, directors, employees, and representatives harmless against any liabilities, losses, damages, demands, claims, suits, and proceedings as well as fees, expenses and other costs of any kind or nature arising out of or related to (i) Customer’s use of the Software or Equipment or any such use on behalf of or through Customer, or (ii) any breach or alleged breach by Customer or any of Customer’s affiliates, employees, representatives, agents or third-parties of any obligation, representation or warranty contained in this Agreement or any Purchase Agreement, including, without limitation, any attorney fees, expert fees, filing fees, judgments, and settlement amounts associated therewith, as and when incurred, and any amounts finally awarded or agreed to in settlement of any such claim.

Customer is responsible and liable for all uses of the Software or Equipment resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of third-parties that access the Software or Equipment by or through Customer, and any act or omission by such person or entity that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all persons or entities using the Software or Equipment aware of this Agreement’s provisions as applicable to such use of the Software or Equipment and shall cause compliance with such provisions.

5. Compliance with Laws and this Agreement

Compliance Generally.

Customer shall comply with all applicable laws and regulations in connection with its Purchase and use of the Software and Equipment, as well as related technical information and data. Customer shall comply at all terms with the terms and conditions of this Agreement any Purchase Agreement.

Export Compliance.

Customer acknowledges that the Software and Equipment may contain encryption or encryption technology and may be subject to certain controls and restrictions under U.S. and non-U.S. export, re-export and other laws, regulations and restrictions (collectively, the “Export Regulations”), including, without limitation, the U.S. Export Administration Act of 1979, as amended from time to time, and regulations promulgated thereunder, U.S. trade sanction programs, and other regulations promulgated by the Office of Foreign Assets Control, the Department of Commerce or other departments of the U.S. government.

Customer agrees that it is solely responsible for obtaining and will obtain any necessary approvals or licenses from the applicable U.S. and foreign regulatory authorities. Without limiting the generality of the foregoing, Customer represents and warrants to 365 Striker that it will not, directly or indirectly, export or re-export, supply or otherwise make available the Software, Equipment, or any related technical information or data to any person in violation of any Export Regulation, including, without limitation, re-exporting, supplying or otherwise making available the Software to any person on the U.S. Department of Commerce’s Denied Persons List or affiliated lists, on the U.S. Department of Treasury’s Specially Designated Nationals List, in a country on the State Sponsors of Terrorism list or on any U.S. export exclusion lists (collectively, the “Export Denial Lists”). Customer represents and warrants that it is not on any of the Export Denial Lists and that Customer is not using and will not use any Software or related technical information or data to further activities in support of development, manufacture or use of nuclear fuel or weapons, missiles, or chemical or biological weapons. Customer further certifies to 365 Striker that Customer will immediately notify 365 Striker if at any time those warranties and representation become no longer accurate.

Without limiting the generality of any of the forgoing, Customer shall not sell, export, or re-export, directly or indirectly, the 365 Striker technology to the Russian Federation, Belarus, or the non-government controlled regions of Ukraine (collectively, the “Sanctioned Regions”) or for use in the Sanctioned Regions. Furthermore, Customer shall use best efforts to ensure that no third party involved in Customer’s supply chain sells, exports, or re-exports, any 365 Striker technology directly or indirectly, to a Sanctioned Region, and Customer shall establish and maintain an adequate monitoring mechanism to enforce this obligation. In addition, Customer shall immediately inform 365 Striker of any violations of this paragraph and shall make available to 365 Striker information concerning compliance with the obligations under this paragraph within two weeks of delivery 365 Striker’s written request for such information. Any violation of this paragraph shall constitute a material breach of an essential element of this Agreement and (a) shall void 365 Striker’s warranty obligation concerning the 365 Striker Products shipped in violation of this Paragraph and (b) entitle 365 Striker to seek appropriate remedies, including, but not limited to (i) termination of this Agreement and (ii) a penalty in the amount of the price of the items exported.

Privacy Laws and Policy.

In the connection with Customer’s use of the Software and Equipment, Customer acknowledges and consents to the data handling practices of 365 Striker described in its privacy policy set forth at https://365striker.com/privacy-policy.

Customer shall comply with all applicable state, federal and international privacy and data protection laws, rules and regulations in connection with Customer’s use of the Software or Equipment. Customer shall not take any action that would make any statement in 365 Striker’s privacy policy untrue. Customer shall assist 365 Striker meet its compliance obligations, including by cooperating with any audits and assisting with data subject requests. Customer agrees to cooperate in good faith with 365 Striker if 365 Striker deems it necessary or advisable to enter into a data processing agreement to address processing of personal data under this Agreement.

6. General Provisions

Governing Law.

This Agreement shall be governed by and interpreted in accordance with the laws of the State of California, without regard to conflict of law provisions thereof. Neither the provisions of the United Nations Convention on Contracts for the International Sale of Goods nor those of the Uniform Computer Information Transactions Act shall apply.

Jurisdiction.

Subject to the Arbitration provision below, to the extent any claims or disputes are not subject to mandatory arbitration, claims or disputes arising hereunder shall be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California, and the parties agree to submit to the jurisdiction of such courts. Customer waives its rights to a jury trial.

Arbitration.

PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES CUSTOMER TO ARBITRATE CERTAIN DISPUTES AND CLAIMS WITH 365 STRIKER AND LIMITS THE MANNER IN WHICH CUSTOMER CAN SEEK RELIEF FROM 365 STRIKER.

Customer agrees that to the fullest extent permitted by law all disputes, claims, suits, or controversies arising out of or in any way connected with this Agreement or a Purchase Agreement and the use of any Software or Equipment (collectively, “Claims”), shall be resolved to the fullest extent permitted by law, by final, binding, and (to the extent permitted by law) confidential arbitration conducted by JAMS, Inc. (“JAMS”) before a single arbitrator in San Francisco, California, in accordance with the applicable JAMS rules then in effect (provided that, if such rules conflict with this paragraph in any manner, the terms of this paragraph shall control). The arbitrator shall: (a) have the authority to compel adequate discovery for the resolution of all Claims and to award such relief as would otherwise be permitted by law; and (b) issue a written arbitration decision including the arbitrator’s essential findings and conclusions and a statement of the award.

The parties acknowledge that, by agreeing to this arbitration procedure, both parties waive the right to resolve any Claims through a trial by jury or judge or by administrative proceeding, except as otherwise set forth herein.

This agreement to arbitrate does not extend to Claims in which either party seeks (i) injunctive or other equitable relief for the alleged unlawful or improper use of intellectual property, Software, or Equipment, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, (ii) the right to pursue enforcement actions through applicable U.S. federal, state, or local agencies where such actions are available, or (iii) injunctive relief in a U.S. court of law. Any such Claim may be brought in state or federal court as otherwise set forth in this Agreement. For the avoidance of doubt, notwithstanding any other provision herein, 365 Striker shall have the right to seek temporary injunctive relief pending the resolution of any arbitration.

The arbitration proceedings and decision of the arbitrator(s) shall be kept confidential (and may not be disclosed) by the parties or the arbitrator(s), except to the extent necessary to compel any award made by the arbitrator(s). Any awards or orders in such arbitrations may be entered and enforced as judgments in the federal and state courts of any competent jurisdiction. The language of the arbitration shall be English.

Any Claims will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. There will be no class arbitration or arbitration in which an individual attempts to resolve a Claim as a representative of another individual or group of individuals. Further, a Claim cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals.

Survival.

The limitations and restrictions contained in the section entitled “Limitations and Restrictions” as well as the following provisions shall survive the termination or expiration of this Agreement: Protection of Information (Confidential and Proprietary Information; Reservation of Rights; Aggregated Statistics, and Feedback), Term and Termination, Limited Software Warranty and Disclaimers, Disclaimer of Liabilities, Indemnification, Reports and Audit, and General Provisions. In addition, Customer’s obligations to pay any Fees and in the section entitled Fees and Payment through the termination of this Agreement or any Purchase Agreement shall survive the termination of expiration of the Agreement.

Relationship of the Parties.

The relationship between the parties is that of independent contractors. Nothing contained herein shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

Assignment.

365 Striker may assign this Agreement or delegate its responsibilities without restriction. Customer may not assign this Agreement, its rights or licenses, or delegate its duties, hereunder, nor may any successor entity of Customer assume such rights, licenses or duties, in whole or in part, directly or indirectly, whether by sale of stock or assets, merger, change of control, operation of law, or otherwise, without 365 Striker’s prior written consent. Any assignment or assumption in violation of the foregoing shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties and their respective permitted successors and assigns.

Entire Agreement.

This Agreement is the entire agreement between 365 Striker and Customer with respect to the Software, and supersedes any and all prior agreements, negotiations, or other communications between 365 Striker and Customer, whether oral or written, with respect to the subject matter hereof.

No Third-Party Beneficiaries.

This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

Severability.

In the event that any provision of this Agreement is held to be invalid or unenforceable, then: (a) such provision shall be deemed to be reformed to the extent strictly necessary to render such provision valid and enforceable, or if not capable of such reformation shall be deemed to be severed from this Agreement; and (b) the validity and enforceability of all of the other provisions hereof, shall in no way be affected or impaired thereby.

Amendment and Modification.

This Agreement may only be amended or modified in a writing which specifically states that it amends the terms herein and is signed by an authorized representative of each party.

Waiver.

365 Striker’s failure to exercise, or delay in exercising, a right, power or remedy provided in this Agreement or by law shall not constitute a waiver of that right, power or remedy. 365 Striker’s waiver of any obligation or breach of this Agreement shall not operate as a waiver of any other obligation or subsequent breach of the Agreement.

Force Majeure.

365 Striker shall not be liable or responsible to Customer, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond 365 Striker’s reasonable control, including, without limitation, the following force majeure events: (a) acts of God; (b) flood, fire, earthquake, hurricane, fire, epidemics or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other similar events beyond the reasonable control of the Impacted Party.

Translations.

The English language version of this Agreement shall be the official and controlling version, and any translation provided is solely for convenience.

Notices.

All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements herein.