SOFTWARE AS A SERVICE AGREEMENT

Last Updated: January 12, 2022

This Software as a Service Agreement (the "Agreement") applies to the use of the SaaS Services (defined below) and other services provided through sedaro.com (the "Website") and subdomains thereof. By using the Website and the SaaS Services, you accept and are bound by this Agreement. The Agreement is subject to change by SEDARO CORPORATION, together with its affiliates (referred to as "Sedaro Technologies", "Sedaro", "us", "we", or "our" as the context may require) without prior written notice at any time, in our sole discretion. The latest version of this Agreement will be posted on the Website, and you should review the Agreement prior to purchasing any product or services that are available through this Website. Your continued use of this Website and the SaaS Services after a posted change in this Agreement will constitute your acceptance of and agreement to such changes.

SEDARO AGREES TO LICENSE CERTAIN OF ITS SOFTWARE AND PROVIDE RELATED SUPPORT & MAINTENANCE OR SERVICES TO YOU (A "USER" AS FURTHER DEFINED BELOW) AND ALSO TO A BUSINESS (AS FURTHER DEFINED BELOW) IF YOU ARE PREPARING OR USING THE SOFTWARE FOR THE BENEFIT OF A BUSINESS, ONLY IF (A) YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO LEGALLY BIND BUSINESS AND (B) YOU ACCEPT AND AGREE ON BEHALF OF BUSINESS TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS IN THIS AGREEMENT. BOTH YOUR INDIVIDUAL ACCEPTANCE AND / OR THAT OF THE BUSINESS, IF APPLICABLE, SHALL BE DEFINITIVELY EVIDENCED BY ANY ONE OF THE FOLLOWING MEANS: YOUR CLICKING THE "ACCEPTANCE", "AGREE", "I AGREE", OR "CONTINUE" BUTTON OR CHECKBOX, AS APPLICABLE; YOUR SIGNATURE ON A TANGIBLE COPY OF THIS AGREEMENT; OR YOUR INSTALLATION OR USE OF THE SOFTWARE, AND SHALL BE EFFECTIVE ON THE DATE ON WHICH YOU INSTALL OR FIRST USE ANY SOFTWARE (INCLUDING ANY UPDATES OR UPGRADES) PROVIDED HEREUNDER. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT COPY, INSTALL OR USE THE SOFTWARE.

  1. DEFINITIONS

    "Account" means a unique account created for User to access the SaaS Services.

    "Business" means the company, government, or other organization for which the User works, or represents and has the authority to bind to the terms of this Agreement, and shall include any entity which benefits from the efforts of the User.

    "User Content" means certain data, content, or materials provided by you ("User") when using the SaaS Services. The User is solely responsible for the accuracy, quality, integrity, legality, reliability, appropriateness, and copyright of all User Content. The User shall obtain and maintain any rights, consents, and approvals required to grant Sedaro and authorized third parties the right to access and use any User Content for the purposes described herein.

    "SaaS Services" means the generally available web-based, on-line, hosted Software as a Service provided by Sedaro for use with other services provided to the User.

    "Separately Licensed Third-Party Technology" refers to third party technology that is licensed under Separate Terms and not under the terms of this Agreement, and which may include, without limitation, open source software.

    "Service Request" is an individual request placed by a User through and managed by the SaaS Services for satellite mission design and engineering modeling and simulation and the data handling, management, visualization, and analysis related to or derived from such design, modeling, and simulation SaaS.

    "Commencement Date" is the date upon which the User's Account is activated, or in the case of a deactivated Account, is the date upon which the User's Account is reactivated.

    "Software" means the online software applications and tools provided by Sedaro including any applications, operating systems, tools, utility programs, communications software, computer software languages, interfaces and any other computer programs (i.e., any set of statements or instructions, whether or not in a machine readable medium, to be used directly or indirectly in a computer in order to bring about a certain task or result), and documentation and supporting materials relating thereto, in whatever form or media, together with all corrections, improvements, modifications, updates, upgrades and new releases thereof.

    "Support Services" means the support services available by Sedaro to the User.

    "Subscription Term" shall mean that period specified during which Users will have online access and use of the SaaS Services through the Software. The Subscription Term will automatically renew upon the expiration date set forth at the time of purchase and can be canceled anytime via the Stripe Customer Portal which is accessible via the “Management Console” of the Software (the "Management Console"). If a Subscription Term is canceled, a successive Subscription Term may be created manually by the User. Subscription Term durations are as follows:

    1. Monthly Subscription Term. Monthly subscriptions begin on the date of purchase and end on the day before the same numerical calendar date of the following month. If the following month does not have such day, the Subscription Term will end on the last day of the following month.

    2. Annual Subscription Term. Annual subscriptions begin on the date of purchase and end on the day before the same numerical date and month of the following year.

    3. Trial Subscription Term. The duration of trial subscriptions is 60-days

  2. USE OF THE SERVICES

    1. Use of the SaaS Services. Subject to the terms and conditions of this Agreement, Sedaro grants to User a limited, non-exclusive, non-transferable, non-sublicenseable right during the term of each Service Request to use the SaaS Services set forth therein. User agrees that Sedaro can access its account information as necessary, in Sedaro's sole discretion, to provide User with the SaaS Services and any related support. Sedaro will not disclose such data except if compelled by law, permitted by User, or pursuant to the terms of the Sedaro Privacy Policy, which is available here https://www.sedaro.com/privacy-policy (the "Privacy Policy") and is incorporated into this Agreement.

    2. Access and Users. User is responsible for managing access to their Account and for all information, data, text, messages or other materials that User upload, save, post or otherwise transmit via the SaaS Services. User hereby represents and warrants that any User Content has not been collected, stored, and transferred to Sedaro in violation of any law, regulation, or contractual obligation applicable to User. User shall have sole responsibility for the accuracy, quality, and legality of the data and the means by which it acquired the data.

    3. Use Restrictions. User may use the SaaS Services solely for its own internal business operations. Except as otherwise explicitly provided in this Agreement User will not, and will not permit or authorize third parties to: (a) license, sublicense, sell, rent, lease, or otherwise permit third parties to use the SaaS Services; (b) circumvent or disable any security or other technological features or measures of the SaaS Services; (c) reverse engineer any element of the SaaS Services, or use the SaaS Services or any of Sedaro's Confidential Information (as defined below) to compete with the SaaS Services; (d) modify, adapt or hack the SaaS Services to falsely imply any sponsorship or association with Sedaro, or otherwise attempt to gain unauthorized access to the SaaS Services or its related systems or networks; (e) use the SaaS Services in any manner that interferes with or disrupts the integrity or performance of the SaaS Services or the components of the SaaS Services; (f) use the SaaS Services to knowingly post, upload, link to, send or store any content that is defamatory, libelous, fraudulent, derogatory, abusive, obscene, unlawful, hateful, harassing, violent, threatening, racist, or discriminatory, or that contains any viruses, malware, Trojan horses, time bombs, or any other similar harmful software; (g) use automated scripts to collect information from or otherwise interact with the Website or the SaaS Services; (h) deep-link to the Sites for any purpose (other than Sedaro's home page), unless expressly authorized in writing by Sedaro; or (j) impersonate any other user of the SaaS Services.

    4. Compliance with Laws. User will use the SaaS Services in compliance with all applicable laws and regulations and in a manner that does not infringe on the rights of any third party or violate any third party's privacy rights.

    5. User Content. User acknowledges and agrees that Sedaro will not be liable for any damages that may result from User's use of the SaaS Services in transmitting, uploading, collecting, managing, or otherwise processing any User Content.

    6. Protection Against Unauthorized Use. User will use reasonable efforts to prevent any unauthorized use of the SaaS Services and immediately notify Sedaro in writing of any unauthorized use that comes to User's attention. If there is unauthorized use by anyone who obtained access to the SaaS Services directly or indirectly through User, User will take all steps reasonably necessary to terminate the unauthorized use. User will cooperate and assist with any actions taken by Sedaro to prevent or terminate unauthorized use of the SaaS Services.

    7. Right to Suspend SaaS Services. Sedaro may suspend User's use of the SaaS Services if Sedaro reasonably and in good faith believes such suspension is necessary to prevent unauthorized use of the SaaS Services or to prevent an ongoing violation of any applicable laws or regulations. Sedaro will use commercially reasonable efforts to notify User prior to any such suspension and will only suspend the SaaS Services to the extent necessary to prevent such unauthorized use or violation. In addition, if User fails to timely pay any fees in accordance with the terms of this Agreement and/or any Service Request, Sedaro may, without limitation to any of its other rights or remedies, suspend performance of the SaaS Services until it receives all amounts due.

    8. Reservation of Rights. Sedaro grants to User a limited right to use the SaaS Services under this Agreement. User will not have any rights to the SaaS Services except as expressly granted in this Agreement. Sedaro reserves to itself and its licensors all rights to the SaaS Services not expressly granted to User in accordance with this Agreement. Sedaro and its licensors retain all Intellectual Property Rights (as defined below, in this Agreement) in and to the SaaS Services.

    9. Statistical Data. User acknowledges and agrees that Sedaro shall have the right to utilize data capture, syndication, and analysis tools, and other similar tools, to extract, compile, synthesize, and analyze any non-personally and non-User identifiable data or information resulting from User's use of the SaaS Services ("Statistical Data"). Statistical Data may be collected by Sedaro for any lawful business purpose without a duty of accounting to User, provided that the Statistical Data is used only in an anonymized, deidentified, or aggregated form, without specifically identifying the source of the Statistical Data. On creation, Sedaro shall own all Intellectual Property Rights in the Statistical Data.

    10. Feedback. Sedaro shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the SaaS Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback Sedaro receives from User.

  3. THIRD PARTY SERVICES

    External Sites. The SaaS Services may contain links to, or otherwise may allow User to connect to and use, certain third party products, service or software under separate terms and conditions (collectively, "Third-party Service") in conjunction with the SaaS Services. User acknowledges that any use of the SaaS Services shall result in the User's access and use of such Third-party Service. User acknowledges that its use of said Third-party Service is governed solely by the terms and conditions of such Third-party Service, including, but not limited to, the Amazon Web Services Universal Terms of Service located at https://aws.amazon.com/service-terms/ and such other Third-party Services as updated from time to time at https://www.sedaro.com/third-party-services. Sedaro does not endorse, is not responsible for, and makes no representations as to such Third-party Service, its content or the manner in which such Third-party Service handles User's data. Sedaro is not liable for any damage or loss arising from or in connection with User's access or use of any such Third-party Service, or User's reliance on the privacy practices or other policies of such Third-party Service. User acknowledges that Sedaro does not control the features and functionality of any Third-party Service and that such Third-party Service may change its features and functionality without any notice to Sedaro. Sedaro shall not be liable to User for any refunds or any damage or loss arising from or in connection with any changes made by a Third-party Service or any resulting changes to the SaaS Services.

  4. FEES AND PAYMENT

    1. Fees. User will pay Sedaro the sum total of all fees specified by Sedaro on the initial payment processing page that correspond to the Subscription Term selected by the User for each module, feature, or service offering being purchased, together with the costs and fees for any renewals of the Subscription Term for each module, feature, or service offering previously purchased (the "Subscription Fees"). If User orders additional SaaS Services or changes the SaaS Services it is receiving, the Subscription Fees for such additional or changed services will be charged at the then-current pricing for such additional or changed services and commence on the activation date listed in the Subscription Term selected by the User as part of such additional services. Any resulting change in Subscription Fees shall be reflected in the User's account. All amounts payable under this Agreement are denominated in United States dollars, and User will pay all such amounts in United States dollars. Except as otherwise provided in this Agreement, Subscription Fees are non-refundable. There are no refunds or credits for Subscription Fees, partial months of a Subscription Term, SaaS Services, plan downgrades, or refunds for unused time if User closes its account before the end of the term of any Subscription Term. Sedaro reserves the right to increase Subscription Fees for subsequent Subscription Terms upon renewal at any time.

    2. Payment Terms. User will pre-pay all amounts due, or otherwise, within ten (10) days of the date of the applicable invoice, except for amounts subject to a good faith dispute, provided that (i) User notifies Sedaro of any such dispute in writing prior to the date such amounts would otherwise be due; (ii) User pays any undisputed amounts in accordance with this Section; and (iii) User cooperates with Sedaro in promptly resolving such dispute. Except for any amounts disputed by the User in good faith, any amount not paid when due will be subject to finance charges equal to one and one-half percent (1.5%) of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. User will reimburse any costs or expenses (including, but not limited to, reasonable attorneys' fees) incurred by Sedaro to collect any amount that is not paid when due, including reasonable attorney's fees and costs. Amounts due from User under this Agreement may not be withheld or offset by User against amounts due to User for any reason.

    3. Taxes. Other than net income taxes imposed on Sedaro, User will bear all taxes, duties, and other governmental charges (collectively, "Taxes") resulting from its purchase or use of the SaaS Services. Taxes will not be deducted from or set off against the fees set forth in the applicable Service Request or invoice.

  5. TERM AND TERMINATION

    Agreement Term. This Agreement commences on the Commencement Date and will remain in effect until such a time as the User's account is deactivated.

  6. CUSTOMER OBLIGATIONS

    1. User shall be responsible for the compliance of itself and the Business with all applicable laws and the terms and conditions of this Agreement. User will use the SaaS Service solely for its own benefit and that of the Business and will limit access to its User account to only the User signing this Agreement.

    2. The User shall provide Sedaro with all necessary access to such information as may be required by Sedaro in order to provide the SaaS Services, including User Content, security access information and configuration services.

    3. The User will: (i) ensure that the User and the Business will use the SaaS Services in accordance with the terms and conditions of this Agreement and the User and the Business shall be jointly and severally responsible for breach of this Agreement caused or contributed to by any acts or omissions on the part of any User; (ii) ensure that its network and systems comply with the relevant specifications provided by Sedaro from time to time; and (iii) as between the parties, be responsible for responding to all third party requests concerning the use of the SaaS Services by the User.

    4. The User agrees that it will not allow or suffer its Account to be used by more than one individual authorized User unless it has been reassigned in its entirety to another individual authorized User, in which case the prior authorized User shall no longer have any right to access or use the SaaS Services, in which event the User or the Business shall notify Sedaro within five (5) days of such change.

    5. User shall be responsible for its and the Business' compliance with the terms of this Agreement and shall be responsible for the User Content. User shall not (i) use the SaaS Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (ii) use the SaaS Services for illegal purposes, (iii) interfere with or disrupt the integrity or performance of the SaaS Services or third-party data contained therein or any systems or networks or violate the regulations, policies, or procedures of such networks used with the SaaS Services, (iv) attempt to gain unauthorized access to the SaaS Service or its related systems or networks, the Sedaro data or the data of any other Sedaro customers, or (v) harass or knowingly or intentionally interfere with another Sedaro customer's use and enjoyment of the SaaS Services. Any conduct by a User that in Sedaro's sole discretion restricts or inhibits any other Sedaro customer from using or enjoying the SaaS Services is expressly prohibited. User will use commercially reasonable efforts to prevent unauthorized access to, or use of, the SaaS Services, and notify Sedaro promptly of any such unauthorized access or use.

    6. The User is solely responsible for maintaining the confidentiality of each username or email address and password used with User accounts. User is solely responsible for any and all activities that occur under their Account. User agrees to notify Sedaro immediately of any unauthorized use of User's Account or any other breach of security. Sedaro will not be liable for any loss that User may incur as a result of someone else using User's passwords or accounts, either with or without the User's knowledge.

    7. Sedaro reserves the right to modify the SaaS Services and its specifications from time to time as required and without further notice in order to comply with applicable laws, rules, regulations, decisions or orders of any governmental authority.

  7. SUBSCRIPTION TERM AND SUPPORT SERVICES

    1. All Support Service and SaaS Services will be performed off-premises from the User's location unless otherwise agreed to in writing by the parties. User acknowledges that this Agreement is a services agreement and, unless otherwise agreed to in writing and signed by both of the parties, Sedaro will not be delivering copies of the SaaS Services or related source code to User as part of the SaaS Services.

    2. Sedaro may access Users' account and User Content as necessary to identify or resolve technical problems or respond to complaints about the SaaS Services or as may be required by law. Sedaro shall also have the right, but not the obligation, to monitor the SaaS Services to determine Users' compliance with this Agreement. Without limiting the foregoing and with two (2) days prior notice, Sedaro shall have the right to remove any material submitted to the SaaS Services that Sedaro finds to be in violation of the provisions of this Agreement.

    3. Sedaro may offer Support Services via phone, email, or third-party service which seek to assist User's in utilizing the SaaS Services and Website as originally intended. The scope of such Support Services is at the sole discretion of Sedaro and may be terminated at any time.

    4. Additional Support Services may be made available to User for purchase under a separate purchase order, referencing this Agreement, and signed by both parties.

    5. Any subsequent purchase order may specify what level of support the User is ordering if offered by Sedaro in its sole discretion. Except for the SaaS Services purchased on a subscription term basis (in which case fees for support may be included in the fees paid for the SaaS Services at Sedaro's sole discretion), if User does not order at least the minimum level of support offered for such Services and/or User is not current on support fee payments, Sedaro has no obligation to provide support, maintenance, correct software defects (subject to the limited warranty below), or provide future versions or upgrades to the SaaS Services.

  8. WARRANTIES

    SEDARO DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE FUNCTIONS PERFORMED BY THE SAAS SERVICES WILL MEET THE BUSINESS' OR THE USER'S REQUIREMENTS, THAT THE OPERATION OF THE SAAS SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS IN THE SAAS SERVICES WILL BE CORRECTED. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, AND COMPANY DISCLAIMS ANY AND ALL OTHER WARRANTIES OR CONDITIONS, WHETHER EXPRESS, IMPLIED, ORAL, OR WRITTEN, INCLUDING, WITHOUT LIMITATION, ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, REASONABLE CARE, AND/OR FITNESS FOR A PARTICULAR PURPOSE (WHETHER OR NOT COMPANY KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE). TO THE EXTENT PERMITTED BY APPLICABLE LAW, SEDARO FURTHER DISCLAIMS ANY AND ALL WARRANTIES, CONDITIONS, AND/OR REPRESENTATIONS OF TITLE AND NON-INFRINGEMENT. THE SAAS SERVICES ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SEDARO OR ITS EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF SEDARO'S OBLIGATIONS HEREUNDER.

    No action for breach of the limited warranty set forth in this section may be commenced more than one (1) year following the expiration of the term of your contract. The SaaS Services include all maintenance and upgrades. Each of Sedaro's Software releases may incorporate major new features or enhancements that increase or modify the core functionality of the SaaS Services.

  9. LIMITATION OF LIABILITY

    EACH SERVICE PROVIDED BY US OR ANY OF OUR AFFILIATES IS PROVIDED "AS IS". NO WARRANTIES OR COMMITMENTS, EXPRESS OR IMPLIED, ARE MADE WITH RESPECT TO THE SERVICES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEMS INTEGRATION, TITLE, SATISFACTORY QUALITY AND NONINFRINGEMENT.

    IN NO EVENT WILL WE OR ANY OF OUR AFFILIATES OR LICENSORS BE LIABLE TO YOU OR ANY OF YOUR AFFILIATES FOR ANY DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT, INCLUDING DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EVEN IF WE OR ANY OF OUR AFFILIATES OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF AN AGREED REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS HELD UNENFORCEABLE FOR ANY OTHER REASON.

    Sedaro's total aggregate liability in contract, misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees paid for the User's Subscription Terms that were active as indicated by the activation and termination dates of each Subscription Term, preceding the date on which the claim arose.

  10. INTELLECTUAL PROPERTY AND CONFIDENTIALITY RIGHTS

    1. Ownership of Work Product and Other Intellectual Property. The SaaS Services and Software are protected by copyright laws, international copyright, patents, trade secrets and other intellectual property rights. Sedaro is the exclusive owner of all software (including the SaaS Services and Software and revisions, modifications and enhancements thereto) and any other specifications, documentation, ideas, know-how, techniques, processes, or inventions (the "Intellectual Property" and all of the rights to such Intellectual Property the "Intellectual Property Rights") that Sedaro or its suppliers may develop, conceive or deliver under this Agreement, including all patents, copyrights and other Intellectual Property rights thereto. The use of such SaaS Services confers no title or ownership in the Software and is not a sale of any rights in the Software and does not grant User any right to any enhancement or update to the Software. Sedaro reserves any and all rights not expressly granted to you. In addition, the Software may incorporate third party intellectual property. The User agrees and consent to all the terms and conditions of such third-party software as updated from time to time.

    2. Restrictions on Access, Copying and Sublicensing. User shall not cause or permit (a) access (except to its employees, agents and consultants with a "need to know" who are bound in writing by non-disclosure obligations suitable to protect Sedaro's interests in the Software but no less restrictive than User's obligations herein), (b) copying, or (c) sublicensing or other dissemination of the SaaS Software, in whole or in part, to any third party without Sedaro's prior written consent.

    3. Third Party and Other Proprietary Software. If the Software contains or is bundled with third party software or other proprietary Sedaro Software, then (a) such software is governed by Sedaro's standard license agreement for such software or other applicable license agreement under which such software is provided to User, and (b) User may use such third-party software or other proprietary Sedaro Software solely for the purpose such software is included with the Software.

    4. Confidential Information. As a result of the relationship entered into by the parties under this Agreement, the parties acknowledge that they may from time to time require or gain access to information that is confidential or proprietary to one another. All information disclosed by a party hereunder that (a) is in writing and marked with an appropriately restrictive legend indicating the confidential or proprietary nature of the information, (b) is disclosed orally and reduced to a writing marked with an appropriately restrictive legend promptly after the oral disclosure, or (c) by its nature or under the circumstances of its disclosure should reasonably be understood to be confidential is referred to herein as "Confidential Information." Other than User's use of the SaaS Services, User agrees that it will not provide any personally identifiable information to Sedaro (except business card information of User representatives).

    5. Obligations. The receiving party (a) shall hold all Confidential Information in confidence; (b) shall use the Confidential Information only for the purpose of performing its obligations under this Agreement; (c) shall reproduce the Confidential Information only to the extent necessary for such purpose; (d) shall restrict disclosure of the Confidential Information to its employees, consultants, agents and representatives with a need to know and who are bound to protect the confidentiality of such Confidential Information (and shall advise such employees, agents and representatives of the obligations assumed herein); and (e) shall not disclose or cause to be disclosed the Confidential Information to any third party without prior written approval of the disclosing party, except as allowed under (d) above.

    6. Exceptions. The foregoing restrictions do not apply to Confidential Information that (a) is or becomes a part of the public domain through no wrongful act or omission of the receiving party; (b) was in the receiving party's lawful possession before the disclosure and had not been obtained by the receiving party either directly or indirectly from the disclosing party; (c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (d) is independently developed by the receiving party without reference to or in reliance on the Confidential Information; or (e) the disclosing party agrees in writing.

  11. INTELLECTUAL PROPERTY INFRINGEMENT

    1. Defense and Indemnification. Sedaro will, at its expense, defend User or the Business from or settle any claim, proceeding, or suit ("Claim") brought by a third party against User or the Business alleging that User's use of the Services infringes or misappropriates any Intellectual Property Rights of any third party, and indemnify User from all damages, costs, and attorneys' fees finally awarded in any such Claim or paid to any third party to settle any such Claim. Sedaro's obligation under this section is contingent on: (a) User giving Sedaro prompt written notice of the Claim; (b) User granting Sedaro full and complete control over the defense and settlement of the Claim; and (c) User providing assistance in connection with the defense and settlement of the Claim as Sedaro may reasonably request, at Sedaro's cost. User will not defend or settle any Claim eligible for indemnification under this section without Sedaro's prior written consent.

    2. Infringement Remedy. If User is enjoined or otherwise prohibited from using the Services or a portion thereof based on an allegation that the Services violate any third party Intellectual Property rights (including a Claim), or if Sedaro reasonably determines that such prohibition is likely, then Sedaro will, at its sole expense and option: (a) obtain for User the right to use the allegedly infringing portions of the Services; (b) modify the allegedly infringing portions of the Services so as to render them non-infringing without substantially diminishing or impairing their functionality; or (c) replace the allegedly infringing portions of the Services with non-infringing items of substantially similar functionality. If Sedaro determines that the foregoing remedies are not commercially reasonable, then Sedaro may terminate the impacted Service Request, or portion thereof, and will promptly provide a prorated refund to User for any prepaid fees received by Sedaro for any Services that have not yet been performed at the time of termination.

    3. Exclusions from Obligations. Sedaro will have no obligation under this Section for any infringement or misappropriation to the extent that it arises out of or is based upon (a) use of the Services in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; (b) any aspects of the Services that are provided to comply with designs, requirements, or specifications required by or provided by User, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of the Services by User for purposes not intended or outside the scope of the license granted to User; (d) User's failure to use the Services in accordance with written instructions provided by Sedaro, if the infringement or misappropriation would not have occurred but for such failure; or (e) any modification of the Services not made or authorized in writing by Sedaro where such infringement or misappropriation would not have occurred absent such modification.

    4. LIMITED REMEDY. THIS SECTION 11 STATES SEDARO'S SOLE AND EXCLUSIVE LIABILITY, AND USER'S SOLE AND EXCLUSIVE REMEDY, FOR THE ACTUAL OR ALLEGED INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT BY THE SERVICES. SEDARO'S OBLIGATIONS UNDER THIS SECTION 11 ARE SOLELY FOR INFRINGEMENT DAMAGES AND COSTS AWARDED AGAINST YOU. IN NO EVENT SHALL ANY OTHER LIABILITY OF SEDARO TO YOU EXCEED THE AGGREGATE AMOUNT OF THE APPLICABLE SUBSCRIPTION FEES RECEIVED BY SEDARO FOR THE ALLEGEDLY INFRINGING SOFTWARE, OR ANY PART THEREOF. YOU AGREE THAT THE FOREGOING STATES YOUR EXCLUSIVE REMEDY WITH RESPECT TO ANY ALLEGED PATENT OR COPYRIGHT INFRINGEMENT OR TRADE SECRET MISAPPROPRIATION.

  12. CUSTOMER INDEMNIFICATION

    User will defend Sedaro and its officers, directors, employees, agents, successors and assigns from any actual or threatened third party Claim arising out of or based upon (a) User's or Business' breach of any of its obligations under this Agreement, (b) User's use of a Third-party Service, or (c) any of the exclusions stated in Section 11c, and indemnify Sedaro from all damages, costs, and attorneys' fees finally awarded in any such Claim or all amounts that User agrees to pay to any third party to settle any such Claim. User's obligation under this section is contingent on: (a) Sedaro giving User prompt written notice of the Claim; and (b) that User agrees it may not settle or defend any Claim unless User unconditionally releases Sedaro of all liability and such settlement does not affect Sedaro's business or Services. Sedaro will not defend or settle any Claim eligible for indemnification under this section without User's prior written consent.

  13. GENERAL PROVISIONS

    1. Non-Exclusive Service. User acknowledges that SaaS Services are provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict Sedaro's ability to provide the SaaS Services or other technology, including any features or functionality first developed for User, to other parties.

    2. Federal Government End Use Provisions. If User is a U.S. federal government end user, The Software, SaaS Services, and any related documentation are "Commercial Items," as defined in 48 C.F.R. §2.101, as the terms are defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Services are licensed to User with only those rights as provided under the terms and conditions of this Agreement. The use, duplication of or disclosure of the Software, SaaS Services, and any related documentation by the U.S. Government is subject to the restrictions set forth in FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software) and, for Department of Defense purchases, DFARS 252.227-7015 (Technical Data – Commercial Items) and 227.7202-3 (Rights in Commercial Computer Software or Commercial Computer Software Documentation), as applicable. Accordingly, all U.S. Government Users acquire the Software and its documentation with only those rights set forth herein. The developer and manufacturer is Sedaro Corporation, 4601 Fairfax Drive, Suite 1040, Arlington, VA 22203.

    3. Assignment. This Agreement may not be assigned or otherwise transferred in whole or in part by you, including by operation of law, without Sedaro's prior written approval.

    4. Notices. Any notice required under this Agreement shall be provided to the other party in writing. If User has a dispute with Sedaro or if User wishes to provide any other notice under this Agreement, User will promptly send written notice to: Sedaro Corporation, 4601 Fairfax Drive, Suite 1040, Arlington, VA 22203 Attention: Legal Notice Admin. Sedaro may give non-contractual notices applicable to Sedaro's Services customer base by means of a general notice on the Sedaro portal for the Services and notices specific to User by electronic mail to at the User's registered User email address in Sedaro's files or databases or any other User email address on record in Sedaro's account information or by written communication sent by first class mail or pre-paid post. User agrees that it is solely responsible for maintaining accurate and up-to-date contact information on record with Sedaro.

    5. Force Majeure. Notwithstanding anything to the contrary contained herein, neither party shall be liable for any delays or failures in performance resulting from acts beyond its reasonable control including, without limitation, acts of God, acts of war or terrorism, virus outbreak or pandemic, shortage of supply, breakdowns or malfunctions, interruptions or malfunction of computer facilities, or loss of data due to power failures, mechanical difficulties, or otherwise with information storage or retrieval systems, labor difficulties or civil unrest.

    6. Waiver. No waiver shall be effective unless it is in writing and signed by the waiving party. The waiver by either party of any breach of this Agreement shall not constitute a waiver of any other or subsequent breach.

    7. Severability. If any term of this Agreement is held to be invalid or unenforceable, that term shall be reformed to achieve as nearly as possible the same effect as the original term, and the remainder of this Agreement shall remain in full force.

    8. Entire Agreement. This Agreement, together with the User's input and selection of Subscription Terms and corresponding Subscription Fees on the Website contains the entire agreement of the parties and supersedes all previous oral and written communications by the parties, concerning the subject matter of this Agreement. The terms of this Agreement may be amended from time to time, and the User hereby consents to such amendments which will be posted at https://www.sedaro.com/license-agreement. Standard or printed terms contained in any purchase order or sales confirmation are deemed rejected and shall be void unless specifically accepted in writing by the party against whom their enforcement is sought; mere commencement of work or payment against such forms shall not be deemed acceptance of the terms.

    9. Survival. Sections 1 through 4, and 8 through 13 of this Agreement shall survive the expiration or termination of this Agreement for any reason.

    10. Publicity. Sedaro may use User's name and logo to identify User as a customer of Sedaro. Sedaro's use of the name and logo does not create any ownership right therein and all rights not granted to Sedaro are reserved by User. User may contact Sedaro and request that the User name be excluded from use by emailing sebastian.welsh@sedarotech.com

    11. Export Regulations. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Services. User agrees that such export laws govern User’s use of the Software provided under this Agreement, and User agrees to comply with all such export laws and regulations including, without limitation, the U.S. Export Administration Regulations (EAR), the International Traffic in Arms Regulations (ITAR), and the various U.S. trade sanctions regulations administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (OFAC) that prohibit or restrict the export, re-export, or transfer of products, technology, services or data, directly or indirectly, to or for certain prohibited destinations or designated parties. User agrees that no data, information, software programs and/or materials resulting from Services will be exported, directly or indirectly, in violation of these laws and regulations, or will be used for any purpose prohibited by these laws and regulations including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology. You agree to strictly comply with all such laws and regulations and acknowledge your responsibility to obtain licenses for export, re-export or import of the Software, as may be required. This export control provision shall survive the expiration or termination of this Agreement. You further agree and certify that neither You nor any of your authorized Users are foreign persons or acting on behalf of or for the benefits of any foreign persons, and that You and each of Your authorized Users shall access and use the Services within the United States only and not from any non-U.S. location.
      You and your authorized Users shall only share ITAR-controlled technical data with Sedaro on an as-needed basis.  To the extent You or any of your authorized Users plan to upload to the Website any technical data, You shall clearly mark such technical data as being subject to the ITAR (if at all feasible) and must also provide a written notice to alert Sedaro of the uploading of such technical data at least five (5) business days in advance.

    12. No Third-party Beneficiaries. This Agreement is an agreement between the parties, and confers no rights upon either party's employees, agents, contractors, partners of customers or upon any other person or entity.

    13. Statistical Information. Sedaro may anonymously compile statistical information related to the performance of the Services for purposes of improving the SaaS Services or any other purpose, provided that such information does not identify Client's data or include Client's name.

    14. Governing Law. This Agreement and the parties' relationship under it will be interpreted under and governed by the laws of the Commonwealth of Virginia and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.

    15. Arbitration. Excluding Sedaro's right to pursue a collections action for payment, in the event of any dispute between the parties arising under or relating to this Agreement, such dispute shall be submitted to and settled by arbitration in the Commonwealth of Virginia in accordance with the Commercial Rules of the American Arbitration Association then in effect, by an arbitrator or arbitrators selected in accordance with said rules. The arbitrator(s) shall have the right and authority to determine how their award or decision as to each issue and matter in dispute may be implemented or enforced. Any decision or award shall be final and conclusive on the parties; there shall be no appeal therefrom other than for claimed bias, fraud or misconduct by the arbitrator(s); judgment upon any award or decision may be entered in any court of competent jurisdiction in the Commonwealth of Virginia or elsewhere; and the parties hereto consent to the application by any party in interest to any court of competent jurisdiction for confirmation or enforcement of such award. The party against whom a decision or award is made shall pay the fees of the American Arbitration Association. Notwithstanding the foregoing, Sedaro, at its sole option, shall be entitled to enforce its rights, for injunctive and other equitable relief by arbitration pursuant to this Section or directly in any court of competent jurisdiction.

    16. Compliance with Laws. Sedaro shall comply with all applicable local, state, and national laws in connection with its delivery of the SaaS Services, including those laws related to data privacy, international communications, and the transmission of technical or personal data.

    17. Language. This Agreement has been drawn up in and shall be construed in accordance with the English language.

    18. Independent Contractors. The relationship between User and Sedaro is solely that of independent contractors and not that of an agency, partnership, or joint venture. Neither party has the authority to represent or bind the other.