THESE TERMS OF SERVICE (THIS “AGREEMENT”) CONSTITUTES A BINDING CONTRACT BETWEEN ITERIGHT, INC. (“COMPANY”) AND THE INDIVIDUAL AND/OR ENTITY ACCESSING THE SERVICES HEREUNDER (“CUSTOMER”).

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THIS AGREEMENT GOVERNS THE USE OF AND ACCESS TO THE SERVICES (AS DEFINED BELOW) BY CUSTOMER, INCLUDING, IF ANY, CUSTOMER’S EMPLOYEES, AGENTS AND OTHER ASSOCIATED END USERS (COLLECTIVELY, “END USERS”), WHETHER IN CONNECTION WITH A PAID OR FREE TRIAL SUBSCRIPTION TO THE SERVICES.

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By accepting this Agreement, whether by accessing or using the Services, authorizing or permitting any End User to access or use the Services, or otherwise executing or clicking to accept and consenting to this Agreement, Customer agrees to be bound by this Agreement. If the individual entering into and accepting the terms of this Agreement is doing so on behalf of a company, organization or other legal entity, the individual is agreeing to this Agreement for that entity and representing to Company that they have the authority to bind such entity and its affiliates to this Agreement, in which case the term “Customer” herein shall refer to such entity and its affiliates. If such individual does not have such authority, or if Customer does not agree with this Agreement, such individual and/or Customer must not accept or otherwise agree to this Agreement, and neither Customer nor any Customer End Users may use or access any of the Services.

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1. SERVICES AND SUPPORT

1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer certain software, services and related support (collectively, “Services”). As part of the registration process, Customer will identify (i) at least one administrative username and password for Customer’s account and (ii) the number of accounts with “editor” access Customer is registering (“Editor Accounts”), which Editor Accounts will be charged on a flat, per account, per month basis, subject to any free trial period. Company reserves the right to refuse registration of, or cancel, trial accounts at any time during trial period and for any reason, as Company deems appropriate. Upon registration, Customer may create unlimited accounts with limited “viewer” access at no additional charge.

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1.2 Solely as set forth in any Order (defined below), Customer may be permitted to provide to third-party End Users access to the Services in connection with services Customer performs for such End User and/or as a standalone offering. Company may require Customer to execute supplemental terms and conditions in connection with Customer’s commercial use of the Services (“Commercial Terms”).

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2. RESTRICTIONS AND RESPONSIBILITIES

2.1 Customer will not, directly or indirectly: (i) 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, including without limitation any related software, documentation or data; (ii) modify, translate, or create derivative works based on the Services (except to the extent expressly permitted by Company or authorized within the Services); (iii) use the Services for timesharing or service bureau purposes or otherwise for the benefit of a third party, except as expressly set forth in the Commercial Terms; (iv) remove any proprietary notices or labels form the Services; (v) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws or send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third-party privacy rights, or (vi) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs or otherwise interfere with or disrupt the integrity or performance of the Services or the data contained therein. Further, Customer may not remove or export from the United States or allow the export or re-export of the Services 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.

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2.2 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with this Agreement, any applicable Order, or any other published Company policies then in effect, as well as all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s or any End User’s use of Services. 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 is alleged to be) in violation of the foregoing.

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2.3 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, Internet connection, modems, hardware, servers, software, operating systems, networking, web servers and the like, and Customer shall also be responsible for maintaining the security of the same. Customer is responsible for all activity occurring under Company and all End Users’ accounts and shall: (i) notify Company immediately upon becoming aware of any unauthorized use of any password or account or any other known or suspected breach of security with respect to the Services; (ii) report to Company immediately and use reasonable efforts to stop immediately any copying or distribution or misuse of the Services that becomes known or suspected by Customer or any End User; and (iii) not impersonate another provider user or provide false identity information to gain access to or use the Services.

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3. CONFIDENTIALITY; PROPRIETARY RIGHTS

3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, financial or other confidential information relating to the Disclosing Party’s business (“Proprietary Information”). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of Customer includes non-public data provided by Customer to Company to enable the 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 shall 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, (b) was in its possession or known by it prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it without restriction by a third party, (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required to be disclosed by law.

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3.2 Customer shall 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 shall own and retain all right, title and interest in and to (a) the Services, all software related thereto, and all improvements, enhancements and modifications to the foregoing, (b) any software, applications, inventions or other technology developed in connection with the Services, and (c) all intellectual property rights related to any of the foregoing.

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3.3 Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information in connection with the provision, use and performance 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. Additionally, Company shall comply with its privacy policy, available at https://www.iteright.com/privacy. 

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4. PAYMENT OF FEES

4.1 Customer will pay Company the fees described in one or more written ordering documents (including those generated through the Services) that are mutually agreed by Customer and Company (each, and “Order”). Unless otherwise indicated in the applicable Order, and subject to Section 4.2, all charges associated with Customer’s access to and use of the Services are due monthly in advance of such access and use. If Customer fails to pay such fees or other charges indicated on any Order within five (5) business days of Company’s notice to Customer that payment is due or delinquent, or if Customer does not update payment information upon Company’s request, in addition to any other remedies available under this Agreement or otherwise, Company may suspend or terminate access to and use of such Services by Customer and all End Users.

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4.2 If Customer’s use of the Services exceeds the number of Editor Accounts set forth on the Order or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall 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 any 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 sixty (60) days after the date on which the incorrect charge occurred in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.

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4.3 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 fifteen (15) days after the 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 Company shall have the right to immediately terminate Customer’s access to and use of the Services until such unpaid amounts are paid in full. Customer shall be responsible for all taxes associated with Services other than taxes based on Company’s net income.

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4.4 Unless otherwise stated, Company’s charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction, and Company will invoice Customer for such taxes if Company believes it has a legal obligation to do so, and Customer agrees to pay such taxes if so invoiced.

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4.5 If Customer pays by credit card or certain other payment instruments, Customer hereby authorizes the Company and/or any third-party payment provider used by Company to bill Company’s credit card or other payment instrument in advance on a periodic basis in accordance with the terms of this Agreement and the applicable Order for the Services until Company’s subscription to the Services terminates. Customer agrees to promptly update payment information with any changes (for example, a change in Customer’s billing address or credit card expiration date) that may occur.

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5. TERM AND TERMINATION

5.1 Subject to earlier termination as provided below, this Agreement is for the initial term specified in the Order and shall be automatically renewed for additional, successive periods of the same duration as such initial term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.

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5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ written notice (or without notice if terminated by Company for nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. No refunds or credits for any fees or payments will be provided to Customer if Customer elects to terminate its subscription to the Services or cancel or delete any account prior to the end of the Term. 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.

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6. TRIAL PERIOD

Notwithstanding anything to the contrary in this Agreement, if Customer registers for a free trial, Company will make the Services available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period specified on the Order, or (b) the start date of any non-trial Services Term, as set forth in an Order executed by Customer and Company. ANY DATA CUSTOMER OR ANY END USER ENTERS INTO THE SERVICES AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR CUSTOMER DURING THE FREE TRIAL MAY BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO SUCH SERVICES. NOTWITHSTANDING SECTION 7 (WARRANTY AND DISCLAIMER), DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-AVAILABLE” AND “AS-IS” WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

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7. WARRANTY AND DISCLAIMER

Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the 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 shall use reasonable efforts to provide advance notice in writing (e-mail to suffice) of any scheduled disruption to the Services. 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 ARE PROVIDED “AS-AVAILABLE” AND “AS-IS,” AND COMPANY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

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8. INDEMNITY

Company shall hold Customer harmless from liability to third parties resulting from infringement by the Services of any United States patent or any copyright or misappropriation of any third-party trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement. Company will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by Company, (ii) to the extent made in accordance with Customer specifications, (iii) that are modified by Customer, (iv) that are combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Services to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Services, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement, the applicable Order and/or Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Services.

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9. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, COMPANY AND ITS SUPPLIERS AND LICENSORS, AND THE OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES OF EACH OF THE FOREGOING, SHALL NOT BE RESPONSIBLE OR LIABLE UNDER THIS AGREEMENT, WHETHER IN AN EQUITABLE, LEGAL, COMMON LAW ACTION, OR ANY OTHER THEORY OF LIABILITY, INCLUDING CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE: (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, CONSEQUENTIAL OR PUNITIVE 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 BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE SIX (6) 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.

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10. GOVERNING LAW; ARBITRATION

This Agreement shall be governed by the laws of the State of Florida without regard to its conflict of laws provisions. Except for a claim for injunctive relief by the Company (which may be brought to any court of competent jurisdiction), any dispute arising hereunder shall be resolved through binding arbitration. Each party expressly waives its right to a jury trial and to have a court of law determine rights and award damages with respect to any such dispute. The arbitration shall be conducted in the English language in Hillsborough County, Florida in accordance with the commercial arbitration rules of the American Arbitration Association. The arbitrator shall have no authority to assess punitive damages as to any dispute arising out of or concerning the provisions of this Agreement or otherwise arising out of the Services, except as and unless punitive damages waivers are prohibited by applicable law. The arbitrator’s decision shall be final and binding and enforceable in any court of competent jurisdiction. Each party shall bear that its own costs and share the costs of arbitration equally.

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11. MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent, including as set forth in an Order. 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 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. All notices to Customer required under this Agreement may be delivered to Customer via email and/or the Services as a notification and message therein.

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