SIFTERY TRACK END USER LICENSE AGREEMENT

SIFTERY INC
LAST UPDATED: MAY 14, 2018

This Siftery Track End User License Agreement (this “Terms”, “Terms of Service” or “Agreement”) contains the terms and conditions that govern the provision of our Service (as defined below), the Platform (as defined below) and the use of the Website i.e., https://track.siftery.com (the “Track Website”).

This Agreement is a legally binding agreement between Siftery Inc, whose principal place of business is at 855 Folsom St, Suite 108, San Francisco, CA 94107 (“Company,” “we,” “us,” or “our”) and you or the entity you represent (“Customer,” “you” or “your”). This Agreement takes effect when you click an “I Accept” button or checkbox presented with these terms or, if earlier, when you use our Services or register on the Track Website (the “Effective Date”). You and We are hereinafter sometimes referred to collectively as the “Parties” and individually as a “Party.”

You represent to us that you are lawfully able to enter into contracts (i.e., you are 18 years or older). If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms “Customer,” “you,” or “your” shall refer to such entity. Company and Customer are hereinafter sometimes referred collectively as the “Parties” and individually as a “Party.”

This Agreement includes and incorporates the Siftery Track Siftery Track Description of Services Addendum (the “Service Description”).

Capitalized words, not defined herein will have the meanings ascribed to them in the Service Descriptions.

PLEASE READ THESE TERMS AND ANY RELATED DOCUMENTS CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. PLEASE NOTE THAT THESE TERMS CONTAIN A BINDING AND MANDATORY ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS AND LIMITS REMEDIES AVAILABLE TO YOU IN THE EVENT OF CERTAIN DISPUTES.

IF YOU DO NOT AGREE WITH THE TERMS SET FORTH HEREIN, DO NOT REGISTER OR USE OUR WEBSITE, THE PLATFORM OR THE SERVICES. IF YOU USE AND ACCESS OUR WEBSITE, THE PLATFORM AND THE SERVICES, YOU ARE BOUND BY THESE USER TERMS.

In consideration of the agreements contained below, the Parties hereby agree as follows:

1. SAAS SERVICES AND SUPPORT

1.1 Subject to the terms of this Agreement, Company will provide Customer and its Authorized Users the Services, as described in the Service Description and access to the Platform, where applicable in accordance with the Service Level Agreement at the Fees set forth in separate addendum.

1.2 As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account and its Authorized Users. Company reserves the right to refuse registration of or cancel passwords it deems inappropriate.

1.3 For the purposes of these Terms, “Platform” means the interface created by Company where Customer and its Authorized Users view peer to peer information and other information made available by the Company and Authorized Users and all changes, corrections, bug fixes, enhancements, updates and other modifications thereto, whether made by or on behalf of Company, Customer, or any third Party. For the purposes of these Terms, “Authorized Users” mean persons that Company authorizes to use the Services and Applications and access the Platform. For the purposes of these Terms, “Applications” mean all of the applications that Company makes available to Customer on Company’s Platforms and/or on mobile devices owned by Company or its Authorized Users.

1.4 Subject to the terms hereof, where applicable, Company will provide Customer with technical Support Service in accordance with the terms set forth in the SLA.

1.5 Customer will be responsible for all of its Authorized Users access to and use of the Platform, the Services and the Applications. Customer will provide Authorized Users with the user name, passwords and other information (the “Access Credentials”) to access the Platform and use the Services and the Applications. Customer will indemnify and hold Company harmless for any damages caused by or in connection with the use of the Access Credentials by an Authorized User or unauthorized user, who by any method, obtains access to the Access Credentials of an Authorized User.

1.6 Customer will be responsible for all content and Customer Date, as defined below, transmitted by it and its Authorized Users over the Platform (“Content”). Customer will indemnify and hold Company harmless for any damages of whatever nature including fines and penalties caused by or in connection with the Content or Customer Data.

1.7 As part of the registration process, Customer will identify an administrative username and password for Customer’s Company account. Customer will authorize its employees and users to access the Platform and use the Services via the user name and password process. Customer will represent and warrant, will be responsible and liable for and will indemnify and hold Company harmless for any and all third-party claims and damages relating to the acts of its Authorized Users and others who obtain access to the Platform through its Authorized Users’ user name and password.

1.8 Notwithstanding anything to the contrary herein, Company is not providing Customer with a “license” to the Platform, Services or Applications whatsoever but it is providing to Customer and its Authorized Users access to the Platform and the right to use the Services and the Applications.

2. RESTRICTIONS AND RESPONSIBILITIES

2.1 Customer will have no ownership or title to the Services, the Applications or the Platform or the Intellectual Property Rights associated therewith provided hereunder by Company. Company will own all title to the Platform, the Services and the Applications and the Intellectual Property associated therewith.

2.2 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.

2.3 With respect to any Applications (and/or related software) that are distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer and its Authorized Users a non-exclusive, non-transferable, non-sublicensable right to use such Applications (and/or related software) during the Term only in connection with the Services.

2.4 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Applications (and/or related software) or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

2.5 Customer represents, covenants, and warrants that Customer will use the Services and Applications only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Although Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

2.6 Customer will be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer will also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

3. CONFIDENTIALITY

3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the Customer to access provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

4. PROPRIETARY RIGHTS

4.1 Customer will own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services. Company will own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.

4.2 Notwithstanding anything to the contrary, Company will have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

5. PAYMENT OF FEES

5.1 Customer will pay Company the then applicable fees described in the Order Form, where applicable, for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer will be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then‑current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department. Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of a Term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Company has billed Customer incorrectly, Customer must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.

5.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer will be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.

6. TERM AND TERMINATION

6.1 Subject to earlier termination as provided below, this Agreement is for the Initial Term as specified in the Order Form where applicable and will be automatically renewed for additional periods of the same duration as the Initial Term (each a “Renewal Term” and, with the Initial Term collectively, the “Term”).

6.2 In addition to any other remedies it may have, either party may only terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

7. WARRANTY AND DISCLAIMER

7.1 Company will use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and will perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company will use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.

7.2 However, Company does not warrant that the Services will be uninterrupted or error free; nor does it make any warranty as to the results that may be obtained from use of the Services. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

8. INDEMNIFICATION

8.1 Indemnification. Each Party will indemnify, defend and hold the other Party and its officers, directors, employees, agents, successors and assigns harmless from and against all third-party claims, suits, actions, damages, settlements, losses, liabilities, costs (including without limitation reasonable attorney’s fees) and expenses resulting from or arising out of (a) any breach of this Agreement by such Party, (b) any negligence or willful misconduct with respect to the provision or use of the Services by such Party, and (c) any claim that the Services violates any applicable statute, regulation, or law, or infringes any intellectual property right or other legal right of any third party, or the Customer Data (as to Customer) violates any applicable statute, regulation, or law, or infringes any intellectual property right or other legal right of any third party (a “Claim”). This indemnity does not apply to, and Company will have no obligation to the Customer for, any infringement or misappropriation claim that arises from (i) modifications to the Company System by anyone other than Company, (ii) modifications to the Services based upon specifications furnished by the Customer, (iii) Customer’s use of the Services other than as specified in this Agreement or in the applicable documentation accompanying this Agreement, (iv) use of the Services in conjunction with third-party software, hardware or data other than that approved by Company, or (v) any combination of the foregoing. Customer will indemnify, defend and hold Company and its officers, directors, employees, agents, successors and assigns harmless from and against all third-party claims, suits, actions, damages, settlements, losses, liabilities, costs (including without limitation reasonable attorney’s fees) and expenses to the extent they arise from any Claim based on any of the factors in the foregoing sentence, and will give Company all reasonable information and assistance regarding such claim.

8.2 The indemnified Party will promptly notify the indemnifying Party in writing of any Claim; provided that the failure to provide such notice will not relieve the indemnifying Party of its indemnification obligations hereunder except to the extent of any material prejudice directly resulting from such failure. The indemnifying Party will bear full responsibility for, and will have the right to solely control, the defense (including any settlements) of any Claim; provided, however, that (i) the indemnifying Party will keep the indemnified Party informed of, and consult with the indemnified Party in connection with the progress of such litigation or settlement and (ii) the indemnifying Party will not settle any such Claim in a manner that does not unconditionally release the indemnified Party without the indemnified Party’s written consent, not to be unreasonably withheld or delayed.

8.3 In the event any portion of the Services are held or believed by Company to infringe or misappropriate Intellectual Property Rights of any third party (such portion to be deemed the “Infringing Materials”) in any place where the Company System is used or accessed, then in addition to any other rights in this Section 8, Company (where the Infringing Materials are the Services) or Customer (where the Infringing Materials are the Customer Data or Customer Marks) will, at its sole expense and at its option: (i) obtain from such third party the right for the other Party to continue to use the Infringing Materials; or (ii) modify the Infringing Materials to avoid and eliminate such infringement or misappropriation, as the case may be; or (iii) upon mutual agreement with the other Party, remove and disable the Infringing Materials; or (iv) if none of the foregoing remedies is commercially feasible, terminate this Agreement, provided that in such case Company will promptly refund to Customer all unused License Subscription Fees paid by Customer to Company.

8.4 THIS SECTION 8 SETS FORTH EACH PARTY’S ENTIRE LIABILITY AND OBLIGATION, AND EACH PARTY’S SOLE REMEDY FOR ANY CLAIM OF INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS.

9. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES WILL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10. DISPUTE RESOLUTION; BINDING ARBITRATION AND WAIVER OF TRIAL BY JURY

10.1 Negotiation. In the event a dispute arises between Company and Customer regarding the application or interpretation of any provision of this Agreement, the aggrieved Party will promptly notify the other Party to this Agreement of the dispute. If the Parties fail to resolve the dispute within ten business days after receipt of such notice, each Party will, within five business days thereafter, escalate such dispute to a member of its senior management team.

10.2 Mediation. If a settlement is not achieved within ten (10) business days after a meeting between senior management representatives, then the Parties agree to attempt to resolve the dispute through mediation by submitting the dispute to mediation in accordance with the then current rules for mediation promulgated by the American Arbitration Association (“AAA”), including the Optional Rules for Emergency Measures of Protections which provide for injunctive relief and measures for the protection or conservation of property and disposition of perishable goods. The mediation proceedings will be held in San Francisco, California, and each Party will bear its own expenses and an equal share of the expenses of the mediator and the fees of AAA. Such mediation will be held within thirty (30) business days of submission to AAA.

10.3 Binding Arbitration. If the dispute is not resolved by mediation, then the Parties agree to resolve the dispute by binding arbitration before one arbitrator administered in accordance with the Commercial Arbitration Rules of the AAA including the Optional Rules for Emergency Measures of Protections, which provide for injunctive relief and measures for the protection or conservation of property and disposition of perishable goods. Arbitration will be held in the San Francisco, California, or such other place as the Parties may agree and will include an award of attorneys’ fees (and the amount of such fees) to the prevailing Party. The arbitration will be held in front of a single arbitrator. The Parties will agree on the selection of the arbitrator. Discovery will be limited to one set of interrogatories, one set of request for admissions, and one set of requests for production of documents. In allowing discovery, the arbitrator will be governed by the Federal Rules of Civil Procedure then in effect in defining the scope and direction of such discovery and the admissibility of evidence. The arbitrator will be required to make written findings of fact and render written opinions of law. Subject to any limitations set forth herein above, any award of damages pursuant to such arbitration will be included in a written decision signed by the arbitrator which will state the reasons upon which the award was based, including all the elements involved in the calculation of any award of damages. The arbitrator’s award will be final and binding, and judgment thereon may be entered in any court having jurisdiction over the party against which enforcement is sought; provided that any such award rendered by the arbitrator will be strictly in conformance to and in accordance with the terms and conditions of this Agreement including, without limitation, the limitation of liability provisions contained herein. Other than those matters involving injunctive relief as a remedy or any action necessary to enforce the award of the arbitrator, the Parties agree that the provisions of this Section 10.3 are a complete defense to any suit, action or other proceedings instituted in any court or before any administrative tribunal with respect to any dispute or controversy arising under or relating to this Agreement. Nothing in this Section 10.3 will prevent either Party from exercising its rights to terminate this Agreement as specified herein. The Parties undertake and agree that all arbitral proceedings conducted under this Section 10.3 will be kept confidential, and all information, documentation, and materials in whatever form disclosed in the course of such arbitral proceeding will be used solely for the purpose of those proceedings.

10.4 Waiver of Court or Jury. Each Party hereto waives any rights to a trial by jury and/or trial by court under any applicable law it may have with respect any claim in connection with. arising out of or relating to this Agreement.

10.5 Class Arbitrations, Class Actions or Representative Actions. You and Company agree that any dispute arising out of or related to these Terms is personal to you and the Company and that such dispute 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. You and the Company agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a dispute as a representative of another individual or group of individuals. Further, you and the Company agree that a dispute 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.

10.6 Survival. The provisions of this Section will survive the expiration or termination of this Agreement for any reason.

11. GOVERNING LAW

This Agreement shall be governed by the law of the State of California, without respect to its conflicts of laws principles. Each of the Parties to this Agreement consents to the exclusive jurisdiction and venue of the state and federal courts located in California, for any actions not subject to Dispute Resolution and Arbitration provisions as set forth in Section 10.

12. MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. These Terms constitute an agreement between the Parties and are enforceable against each of the Parties once the Agreement is signed by both Parties.

IF YOU ORDER OUR SERVICES USING THE ORDER FORM WHERE APPLICABLE OR OTHERWISE USE OUR SERVICES, YOU AGREE TO THESE TERMS. IF YOU DISAGREE WITH ANY OF THESE TERMS, DO NOT USE OR ORDER OUR SERVICES.