END USER AGREEMENT PLEASE CAREFULLY READ THIS 3AM INNOVATIONS END USER AGREEMENT (“AGREEMENT”) BEFORE ACCESSING, DOWNLOADING OR USING THE FLORIAN SOFTWARE AND ANY RELATED SOFTWARE SERVICE, ACCOMPANYING HARDWARE OR EQUIPMENT, OR USER DOCUMENTATION FROM 3AM INNOVATIONS, INC., A DELAWARE CORPORATION WITH OFFICES LOCATED AT 241 MAIN STREET, SUITE 300, BUFFALO, NY 14203 (“LICENSOR”). BY EXECUTING A WRITTEN ORDER FOR THE SERVICE OR USING OR ACCESSING THE SERVICE , (“YOU”) ARE STATING THAT YOU HAVE READ THIS AGREEMENT, AGREE TO ALL OF ITS TERMS, AND CONSENT TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT.  IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “DO NOT ACCEPT” BUTTON AND/OR DO NOT ACCESS, DOWNLOAD OR USE THE SERVICE AND DOCUMENTATION. IF YOU ARE DOWNLOADING THE SERVICE FROM A THIRD PARTY MARKETPLACE (“MARKETPLACE”), YOUR DOWNLOAD AND USE OF THE SERVICE MAY BE SUBJECT TO ADDITIONAL MARKETPLACE TERMS AND CONDITIONS. IF YOU ARE ACCEPTING THIS AGREEMENT ON BEHALF OF YOUR EMPLOYER OR ANOTHER ENTITY, YOU REPRESENT AND WARRANT THAT: (I) YOU HAVE FULL LEGAL AUTHORITY TO BIND YOUR EMPLOYER, OR THE APPLICABLE ENTITY, TO THE AGREEMENT; (II) YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; AND (III) YOU AGREE, ON BEHALF OF THE PARTY THAT YOU REPRESENT, TO THIS AGREEMENT. ACCEPTANCE OF THIS AGREEMENT IS REQUIRED AS A CONDITION TO PROCEEDING WITH ACCESS, DOWNLOADING AND USE OF THE SERVICE AND DOCUMENTATION. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THE AGREEMENT OR IF YOU DO NOT HAVE THE LEGAL AUTHORITY TO BIND YOUR EMPLOYER OR THE APPLICABLE ENTITY, YOU MUST NOT USE OR ACCESS THE SERVICE AND DOCUMENTATION. YOUR EMPLOYER MAY HAVE ENTERED INTO A WRITTEN AGREEMENT WITH LICENSOR WHICH GOVERNS THE USE OF THE SERVICE. SUCH WRITTEN AGREEMENT MAY GOVERN YOUR USE OF THE SERVICE AND TAKES PRECEDENCE OVER THIS LICENSE AGREEMENT. AS USED IN THIS LICENSE AGREEMENT, THE TERM “YOU” MEANSTHE ORDERING ACTIVITY UNDER GSA SCHEDULE CONTRACTS IDENTIFIED IN THE ORDER . IN CONSIDERATION OF THE PREMISES AND THE MUTUAL COVENANTS CONTAINED HEREIN, YOU AND LICENSOR HEREBY AGREE AS FOLLOWS:

 

1. LICENSE AND SUPPORT. Subject to the terms, conditions and restrictions set forth in this Agreement, and any additional terms set forth in the applicable Licensor and/or Marketplace order form (“Order Form”), Licensor hereby grants, and You hereby accept, a non-exclusive, non-transferable, right and license, to access and use, solely for Your use, (i) the Licensor Service identified on the Order Form (the “Service”), (ii) the user documentation provided with the Service (the “Documentation”),  and (iii) any hardware or equipment provided by Licensor in relation to the Service (“Hardware”), for the subscription term specified on the Order Form. Licensor will provide reasonable support to You for the Service during the subscription term in accordance with the Licensor support policy applicable to the Service.  Where You are receiving Hardware as part of the Service, the additional terms in Appendix 1 also apply to You.  

 

2. TERM AND TERMINATION. The term of this Agreement is the subscription term specified on the Order Form, which may be renewed for the same period by executing a written order for the subsequent subscription term. When the End User is an instrumentality of the U.S., recourse against the United States for any alleged breach of this Agreement must be brought as a dispute under the contract Disputes Clause (Contract Disputes Act). During any dispute under the Disputes Clause, Licensor shall proceed diligently with performance of this Agreement, pending final resolution of any request for relief, claim, appeal, or action arising under the Agreement, and comply with any decision of the Contracting Officer.

 

3. RESTRICTIONS; PROPRIETARY RIGHTS; FEEDBACK. You shall not: (i) decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, user interface techniques or algorithms of the Service or disclose any of the foregoing; (ii) encumber, transfer, manufacture, distribute, sell, sublicense, assign, provide, lease, lend, use for timesharing or service bureau purposes, or otherwise use (except as expressly provided herein) the Service or Documentation; (iii) copy, modify, adapt, translate, incorporate into or with other products or services, or create a derivative work of any part of the Service or Documentation; (iv) attempt to circumvent any user limits, timing or use restrictions that are built into the Service. You shall use the Service for your own purposes and shall not allow third parties to use the Service. The Service is the proprietary and confidential intellectual property of Licensor that contains trade secrets and is protected by copyright law. Subject to any license granted hereunder, Licensor retains sole and exclusive ownership of all right, title, and interest in and to the Service and any and all enhancements, modifications, corrections and derivative works that are made to the Service, all of which will be considered part of the Service for the purposes of this Agreement and will be owned by Licensor. You shall comply with all applicable laws in your use of the Service and shall not use the Service for any illegal, criminal or fraudulent purposes. You may, in your sole discretion, provide Licensor with suggestions, enhancement requests, recommendations, or other feedback related to the Service and Documentation provided hereunder (“Feedback”). You hereby assign to Licensor all right, title, and interest in and to any Feedback, including all intellectual property rights therein or relating thereto. 

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4. CONFIDENTIALITY. Each party shall maintain as confidential and shall not disclose (except to its employees, accountants, attorneys, advisors, affiliates, outsourcers and third party service providers of recipient with a need to know in connection with recipient’s performance under this Agreement, and who have been advised of the obligation of confidentiality hereunder), copy or use for purposes other than the performance of this Agreement, any information which relates to the other party’s business affairs, trade secrets, technology, research, development, pricing or terms of this Agreement (“Confidential Information”) and each party agrees to protect all received Confidential Information with the same degree of care that it would use with its own Confidential Information and to prevent unauthorized, negligent or inadvertent use, disclosure or publication thereof. Breach of this Section may cause irreparable harm and damage. The recipient shall be liable to the disclosing party for any use or disclosure in violation of this Section by recipient or its affiliates, employees, third party service providers or any other related party. Confidential Information shall not include information that (a) is already known prior to the disclosure by the owning party; (b) is or becomes publicly known through no breach of this Agreement; (c) is independently developed without the use of the other party’s Confidential Information and evidence exists to substantiate such independent development; (d) information that is obtained from a third party, and that third party is not, in good faith belief to the recipient, under any legal obligation of confidentiality; or (e) the recipient receives written permission from the disclosing party for the right to disclose any Confidential Information. Licensor recognizes that Federal agencies are subject to the Freedom of Information Act, 5 U.S.C. 552, which may require that certain information be released, despite being characterized as “confidential” by the vendor.

 

5. YOUR DATA AND PRIVACY. Licensor is committed to having technical, administrative, and system safeguards in place to secure any data that You provide to us under this Agreement and pursuant to Your use of the Service (“Customer Data”). As a result, Licensor has implemented industry standard procedures, practices and infrastructure to protect all Customer Data. Licensor uses Customer Data solely to enable Your use of the Service and to improve the Service. Licensor handles and protects all Customer Data, including personally identifiable information, in compliance with all applicable data protection laws and in accordance with the additional terms contained in the attached Licensor Privacy Policy, which is an integral part of this Agreement. If You have any questions regarding the handling and protection of Customer Data or the Privacy Policy, please contact us at legal@3aminnovations.com. Notwithstanding the foregoing, You agree not to include any personally identifiable information in any queries or comments that You submit in Your use of the Service, and, should you do so, Licensor shall not be responsible for lost data resulting from purging queries or comments in the event of a data subject access or deletion request or due to some other reason.

 

6. WARRANTY AND DISCLAIMER. LICENSOR WARRANTS THAT THE LICENSOR SERVICE WILL, FOR A PERIOD OF SIXTY (60) DAYS FROM THE DATE OF YOUR RECEIPT, PERFORM SUBSTANTIALLY IN ACCORDANCE WITH LICENSOR SERVICE WRITTEN MATERIALS ACCOMPANYING IT. IF LICENSOR RECEIVES WRITTEN NOTICE FROM YOU DURING THE WARRANTY PERIOD AT THE ADDRESS IN SECTION 8.4 BELOW THAT THE SERVICE FAILS TO CONFORM TO SUCH WARRANTY AND LICENSOR VERIFIES THE NON-CONFORMITY, YOUR SOLE REMEDY AND LICENSOR’S SOLE OBLIGATION FOR BREACH OF WARRANTY AND NON-CONFORMING SERVICE SHALL BE FOR LICENSOR, AT ITS OPTION, TO EITHER PROMPTLY REMEDY THE NON-CONFORMITY OR PROVIDE A REFUND OF ANY FEES PAID BY YOU APPLICABLE TO THE NON-CONFORMING SERVICE.  EXCEPT AS EXPRESSLY SET FORTH IN THE FOREGOING, THE SERVICE IS PROVIDED “AS-IS” AND “ASAVAILABLE”. LICENSOR MAKES NO AND DISCLAIMS ALL WARRANTIES IN RELATION TO THE SERVICE, DOCUMENTATION, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSOR DOES NOT MAKE OR GIVE ANY REPRESENTATION, WARRANTY, OR COVENANT OF ANY KIND THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR FREE, OR FREE OF HARMFUL COMPONENTS, OR THAT THE SERVICE WILL BE SECURE OR SUITABLE FOR YOUR INTENDED USE.

 

7. LIMITATION OF LIABILITY. THE CUMULATIVE LIABILITY OF LICENSOR TO YOU FOR ALL CLAIMS ARISING UNDER OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID TO LICENSOR UNDER THE APPLICABLE ORDER FORM WITHIN THE YEAR PRECEDING THE CLAIM. NOTWITHSTANDING THE FOREGOING, IN NO EVENT WILL LICENSOR OR ITS SUPPLIERS BE LIABLE TO YOU OR ANY OTHER PARTY FOR DAMAGES FOR LOSS OF DATA, LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IS NEGLIGENT. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO (1) PERSONAL INJURY OR DEATH RESULTING FROM LICENSOR’S NEGLIGENCE OR WILLFUL MISCONDUCT OR (2) FOR ANY OTHER MATTER FOR WHICH LIABILITY CANNOT BE EXCLUDED BY LAW.

 

8. GENERAL.

● 8.1 Entire Agreement. This Agreement is the complete and exclusive statement of the parties’ agreement and supersedes all proposals or prior agreements, oral or written, and all other communications between the parties relating to the subject matter hereof. If this Agreement conflicts with any of the terms or conditions of any Order Form, then this Agreement shall take precedence. Any unilateral purchase orders or other documents issued by You shall be deemed to be for your convenience only and, notwithstanding acceptance of such orders by Licensor, shall in no way change, override, or supplement this Agreement.

 

● 8.2 Waiver. Any waiver or modification of the provisions of this Agreement will be effective only if in writing and signed by the party against whom it is to be enforced. If any provision of this Agreement is held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. A waiver of any provision, breach or default by either party or a party’s delay exercising its rights shall not constitute a waiver of any other provision, breach or default.

 

● 8.3 Independent Contractor. The relationship between Licensor and You is that of independent contractors. At no time shall either party make any commitments or incur any charges or expenses for or in the name of the other party, or be considered the agent, partner, joint venture, employer or employee of the other party.

 

● 8.4 Notices. All notices or other communications required to be given hereunder shall be in writing and delivered either by U.S. mail, certified, return receipt requested, postage prepaid; by overnight courier; or as otherwise requested by the receiving party, to 3AM Innovations, Inc., 241 Main Street, Suite 300, Buffalo, NY 14203, legal@3aminnovations.com, Attn: Legal Counsel. Notices shall be effective upon their receipt by the party to whom they are addressed.

 

● 8.5 Assignment. This Agreement may not be assigned by You without Licensor ’s prior written consent.

 

● 8.6 Compliance with Laws. Each party will be responsible for compliance with all legal requirements related to its performance under this Agreement, including all applicable U.S. export laws and those laws related to the protection, privacy and disclosure of data and information.

 

● Licensor is committed to conducting its business ethically and in full compliance with all applicable U.S. laws and regulations, including (i) the Foreign Corrupt Practices Act (“FCPA”), the U.K. Bribery Act 2010 (“UKBA”), and other applicable anti‐ corruption laws (collectively, the “Anti‐Corruption Laws”); (ii) economic and trade sanctions administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control and U.S. Department of State (the “U.S. Sanctions”); and (ii) export controls administered by the U.S. Department of Commerce’s Bureau of Industry and Security, promulgated under the Export Administration Regulations (“EAR”) (the “U.S. Export Controls”) (together collectively, the “International Trade Laws”). Licensor reserves the right to utilize monitoring tools and technical controls to identify any user or account access from areas considered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) and the U.S. Department of State to be sanctioned or embargoed jurisdictions. These security controls include   but   are   not   limited   to   geo   IP   blocking. If Licensor identifies access, authentication, transactions or payment originating from a Sanctioned Person or Sanctioned Jurisdiction, as per the International Trade Administration, located at https://www.trade.gov/, it will be immediately terminated, in order to maintain compliance with International Trade Laws. By clicking on the “ACCEPT” button, and/or purchasing, accessing, downloading or using the Service, You are stating that You consent to your account or access being terminated (even if utilizing a free or trial version of the product) if it is determined access originates from a Sanctioned Person or Sanctioned Jurisdiction.

 

• 8.7 Force Majeure. In accordance with GSAR 552.212-4(f), Licensor will not be responsible for any failure to perform due to causes beyond its reasonable control, including, but not limited to, acts of God, terrorism, war, riot, embargoes, fire, floods, earthquakes, or strikes (each a “Force Majeure Event”). Licensor will give You prompt notice of the Force Majeure Event. The time for performance by Licensor will be extended for a period equal to the duration of the Force Majeure Event. • 8.8 Governing Law and Disputes. This Agreement and any dispute arising hereunder shall be governed by and interpreted and construed in accordance with the  laws of the State of New York, excluding its conflicts of laws provisions, and shall be subject to the exclusive jurisdiction of the federal and state courts located in Erie County, New York.

 

● 8.9 Survival. Sections 3 through 8 of this Agreement shall survive any termination of this Agreement.

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Appendix 1

Additional Hardware Terms – Florian Kits

The terms contained in this Appendix 1 apply to users of the Service who receive Florian Kits.

 

• Ownership: The devices, accessories, SIMs and software included in the FLORIAN KIT remain the property of Licensor.  Except for the license granted to You to use the FLORIAN KIT during the Service term, all rights, title, interest and ownership of the FLORIAN KIT remains with Licensor.  You will not transfer, sell, assign, sublicense, pledge, or otherwise dispose of the FLORIAN KIT or any of its contents.

 

 • Usage: You may use the FLORIAN KIT only as part of the Service as further specified in the Agreement and during the specified term of the Service.  

 

• Maintenance and Disclaimer: You are responsible for maintaining the FLORIAN KIT in good working condition, excluding normal wear and tear. You will be responsible for any loss of or damage to the FLORIAN KIT and agree to indemnify Licensor for all costs, damages and expenses arising from such loss or damage as described in the “Inspection” clause below.  

 

THE FLORIAN KIT IS PROVIDED ON AN AS-IS BASIS WITH NO WARRANTIES OF ANY KIND.  

 

• Return: At the end of the Service term, You must return the entire FLORIAN KIT with all its contents in good working condition, excluding normal wear and tear, to Licensor.  

 

• As part of the return process, You must inventory and pack all devices and accessories in the supplied FLORIAN KIT case. 

 

• You will use provided the Licensor supplied pre-paid shipping label and deliver the FLORIAN KIT to the Licensor designated shipping location within 48 hours of Service end date. Late returns will be subject to additional service fees/penalties.

 

• Inspection: Licensor will inspect the FLORIAN KIT upon receipt.  If Licensor determines in its sole discretion that the FLORIAN KIT has been damaged  (beyond normal wear and tear) or is missing any items or content, Customer will be invoiced for the replacement cost. Any such invoices will be due upon receipt.