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Endgame Labs, Inc.

SaaS Services Terms and Conditions

These terms and conditions (“Agreement”) governs access and use of the Services provided by Endgame Labs, Inc. (“Endgame”) to the customer accepting these terms and conditions (“Company”). Company’s access to and use of Endgame platform, website (the “Site”) and related services (Endgame’s platform, the Site and related services are collectively referred as, the “Services”). The Agreement is entered into on the date initially agreed to by Company (the “Effective Date”). By clicking “I AGREE”, Company acknowledges that it has read and accepts the terms and conditions of this Agreement in its entirety. IF YOU ARE ENTERING INTO THIS AGREEMENT WITHIN THE SCOPE OF YOUR EMPLOYMENT OR IN CONNECTION WITH YOUR ENGAGEMENT AS AN INDEPENDENT CONTRACTOR, THEN THE TERM “COMPANY” INCLUDES YOUR EMPLOYER OR PRINCIPAL CONTRACTOR, AS APPLICABLE, AND YOU WARRANT AND REPRESENT THAT YOU ARE AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH EMPLOYER’S OR PRINCIPAL CONTRACTOR’S BEHALF. In consideration of the mutual covenants and agreements set forth herein, and other good and valuable consideration, receipt of which is hereby acknowledged, the parties agree as follows:

In order to access and use the Services, Company will need to register with Endgame and create an account (“Account”). Endgame reserves the right to suspend or terminate Company’s Account if any information provided during the registration process or thereafter is or becomes inaccurate, false or misleading. Company is responsible for maintaining the confidentiality of Company’s Account, including the login and passwords for all Authorized Users. An “Authorized User” means an employee or contractor of Company who (i) Company has authorized to access Company’s Account and use the Services, and (ii) has registered with Endgame and been assigned a unique username-password combination to access and use the Services. Company agrees to notify Endgame if any passwords are lost, stolen, or disclosed to an unauthorized third party, or otherwise may have been compromised. Company is responsible for all activities that occur under Company’s Account, including those carried out by any Authorized Users. Company will promptly notify Endgame of any unauthorized use of or access to the Services. Company will ensure that its Authorized Users, employees, agents, and representatives comply with all of Company’s obligations under this Agreement.

Subject to Company’s compliance with the terms and conditions of this Agreement, during the subscription term, (a) Endgame will make the applicable Services available to Company and Authorized Users; and (b) Endgame grants Company and Company’s Authorized Users a limited, non-exclusive, non-transferable, revocable right to access and use the Services solely for Company’s internal business use. Company’s rights in the Services will be limited to those expressly granted in this Section 1.2. Endgame and its licensors reserve all rights and licenses in and to the Services not expressly granted under this Agreement.

Company will not: (i) sell, resell, license, sublicense, distribute, rent or lease the Services, whether or not for a fee, or use the Services to operate any timesharing, service bureau, or similar business; (ii) copy or prepare derivative works of the Services in whole or in part; (iii) access the Services in order to build a competitive product or service; (iv) reverse engineer, reverse assemble, decompile or otherwise attempt to derive source code from any part of the Services; (v) use the Services in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with this Agreement or applicable documentation; (vi) attempt to gain unauthorized access to any part of the Services or its related systems or networks; (vii) knowingly transmit a virus to, overload, flood, spam, or paralyze the Services or take any action or inaction that interferes with the integrity of the Services; (viii) attempt to access or search the Services or download any content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Endgame or other generally available third-party web browsers; or (ix) intentionally encourage, authorize, or enable anyone to do any of the foregoing.

Company will use the Services only in compliance with Company’s standard published policies then in effect, including without limitation any acceptable use policies (the “Policy”) and all applicable laws and regulations. Although Endgame has no obligation to monitor Company’s use of the Services, Endgame may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.

Because the Services are evolving over time, Endgame may change the features within the Services and/or update the Services from time to time, without prior notice to Company. Modifications to the Services will not materially decrease the functionality of the Services. If any such changes or updates materially affect Company’s use of the Services, Company may terminate this Agreement upon 30 days’ written notice to Endgame and receive a pro-rata refund on any unused, prepaid fees associated with the Services.

The Services are purchased as a subscription. The subscription term is as described in Section 4.2 of this Agreement. By subscribing to the Services, Company agrees to pay Endgame all fees set forth in the applicable order form or similar document or online form that Endgame presents to Company when Company purchases its subscription (“Order Form”). Each Order Form will form part of this Agreement and will be subject to the terms and conditions contained herein. Except as otherwise specified in this Agreement, payment obligations are non-cancelable and fees paid are non-refundable.

All fees set forth in an Order Form are stated in and are payable in U.S. dollars. Unless stated otherwise in the Order Form, Endgame will issue an invoice to Company at the beginning of each subscription term, and invoiced charges are due thirty (30) days from receipt of invoice. Company is responsible for providing complete and accurate billing and contact information to Endgame and notifying Endgame of any changes to such information.

Endgame reserves the right to change Endgame’s fees for the Services any time and Endgame will notify Company in advance of such changes becoming effective. Changes to Endgame’s fees for the Services will not apply retroactively and will only apply after the conclusion of Company’s then-current subscription term. If Company does not agree with the changes to Endgame’s fees for the Services then Company’s only recourse is to stop using the Services.

All stated fees are exclusive of taxes or duties of any kind. Company will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use and withholding taxes) associated with this Agreement or Company’s use of the Services, except for taxes based on Endgame’s net income.

During the Term, Endgame may in its discretion release new or additional features, modules, functionality, innovations, or offerings (“New Features”), some or all of which Endgame may make available to Company for an additional fee. Company agrees that Company’s purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Endgame regarding future functionality or features, nor is Company entitled to obtain any or all of such New Features. Notwithstanding the foregoing, Endgame will not charge Company for any New Features that are offered as a substitute for any features, modules, functionality, innovations, or offerings that were part of the Services on the Effective Date.

Endgame will use commercially reasonable efforts to make the Services available, except for any scheduled or emergency maintenance or for any unavailability as a result of system failures or circumstances outside or beyond the reasonable control of Endgame (“Service Interruptions”). Endgame will use commercially reasonable efforts to maintain the Services in a manner which minimizes Service Interruptions.

Endgame and Endgame’s licensors exclusively own the Services and all enhancements, improvements or derivative works of the Services, including any ideas, concepts, know-how, process, techniques and methodologies developed by Endgame from performing the Services, and all copyrights, patents, trademarks, and other intellectual property rights therein. Company may not remove, alter, or obscure any copyright, trademark, or other proprietary rights notices appearing on the Services.

Endgame does not claim any ownership rights in any data, information, documents or other materials that Company provides or prepares using the Services (collectively, “Data”). Nothing in this Agreement will be deemed to restrict any rights that Company may have to use and exploit the Data.

Company hereby grants to Endgame a non-exclusive, worldwide, royalty-free license to use, reproduce, modify and make derivative works based upon the Data solely in connection with use of the Services and Endgame’s provision of the Services to Company. Company represents and warrants that Company or Company’s licensors own all right, title and interest in and to the Data and that Company has all rights in the Data that are necessary and sufficient to use the Data in connection with Company’s Account on the Services, and to grant the rights contemplated by this Agreement. Company Data may not include any sensitive or special data that imposes specific data security or data protection obligations on Endgame.

Endgame may store and use certain Data and Metadata to identify common patterns and improve Endgame’s products and services across Endgame’s customer base. “Metadata” means metadata associated with Company’s use of the Services. For clarity, Metadata does not include Company’s Data. Endgame may store and use certain data associated with Authorized Users, including IP addresses, stored session identifiers, and account credentials (collectively, “User Data”). Company agrees and consents to Endgame’s access, collection, transmittal, storage, monitoring, copying, processing, analysis and use of the Metadata, User Data and Company’s Data in order to administer and provide Services to the Company and to monitor compliance with this Agreement. In addition, Company agrees and consents to Endgame’s access, collection, transmittal, storage, monitoring, copying, processing, analysis and use of the Metadata and Company’s Data, in an anonymized format, to develop and improve the Services and Endgame’s other products and services and in an aggregated or other deidentified format in connection with any other aspect of its business.

If Company provides Endgame with any suggestions for improvement, comments, or other feedback regarding the Services (“Feedback”), Company grants to Endgame a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicensable and transferable license under any and all intellectual property rights that Company owns or controls to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.

3.4 Data Processing/Personal Data Policies

To the extent that Endgame collects, stores or processes any Personal Data (other than User Data), such collection, storage, or processing will be processed in accordance with Endgame’s Data Privacy Policy (which is available 

) and which is incorporated into and made subject to this Agreement by this reference. For purposes of this Agreement, “Personal Data” shall have the meaning set forth in the Data Privacy Policy.

This Agreement will remain in force and effect until the terms of all subscriptions hereunder have expired or have been terminated.

The initial term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, each subscription will automatically renew for the additional renewal terms equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least thirty (30) days before the end of the relevant subscription term. The initial term and any renewal term(s) are individually and collectively referred to in this Agreement as the “subscription term.”

Endgame may suspend or limit Company’s Account and use of the Services as Endgame deems appropriate to prevent, investigate or otherwise address (a) any suspected misuse of the Services or (b) any material risk to the security or performance of the Services, the network, or any other Endgame customer or business partner. Endgame will provide advance written notice of at least five (5) business days where reasonably possible and, subject to any exigent circumstances, will provide Company an opportunity to cure any actions of Company which Endgame reasonably believes are such causing such harm. Company will not be entitled to any compensation or credits unless the suspension was due to Endgame’s error.

Either party may terminate this Agreement upon written notice if the other party materially breaches this Agreement and fails to correct the breach within thirty (30) days following written notice from the non-breaching party specifying the breach; provided that the cure period for any default with respect to payment shall be five (5) business days.

Company’s rights under this Agreement will automatically terminate upon the any expiration or termination of this Agreement. The provisions of Sections 1.3, 2.1, 2.2, 2.4, 3, 4.5 and 5 through 9 will survive any expiration or termination of this Agreement. After termination or expiration of this Agreement, Endgame will retain Company’s Data submitted to the Services in accordance with Endgame’s Data Removal policy.

5.1 “Confidential Information” means any business or technical information that a party discloses to the other party and designates as “confidential” or “proprietary” at the time of disclosure or that, given the nature or the information or the circumstances surrounding the disclosure, would reasonably be considered to be confidential. Company’s Confidential Information includes the Data. Endgame’s Confidential Information includes the Services, features and other information relating to the Services and the Feedback. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault or breach of this Agreement by the receiving party; (ii) is rightfully known by the receiving party at the time of disclosure; (iii) is independently developed by the receiving party without use of the disclosing party’s Confidential Information; or (iv) is rightfully received by the receiving party from a third party, who has the right to provide such information without breach of a confidentiality obligation owed to the disclosing party.

5.2 Use and Disclosure Restrictions of Confidential Information.

Except as permitted in this Agreement, each party will not use any Confidential Information disclosed by the other party except as necessary for the performance or enforcement of this Agreement and will not disclose such Confidential Information to any third party except to those of its employees and subcontractors who have a bona fide need to know such Confidential Information for the performance or enforcement of this Agreement; provided that each such employee and subcontractor is bound by a written agreement that contains use and nondisclosure restrictions consistent with the terms set forth in this Section. Each party will employ all reasonable steps to protect all Confidential Information disclosed by the other party from unauthorized use or disclosure, including, but not limited to, all steps that it takes to protect its own information of like importance. The foregoing obligations will not restrict either party from disclosing such Confidential Information: (i) pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided that the party required to make such a disclosure gives reasonable notice to the other party (if legally permitted) to allow the other party to contest such order or requirement; (ii) to its legal or financial advisors; (iii) as required under applicable securities regulations; and (iv) subject to customary restrictions, to present or future providers of venture capital and/or potential private investors in or acquirers of such party.

6. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

Each party represents that it has validly entered into this Agreement and has the legal power to do so.

Endgame warrants that during the subscription term, when used by Company as expressly permitted hereunder, the Services shall substantially conform to the documentation and shall perform in all material respects in accordance with the terms of this Agreement and each Order Form. In the event Company determines that the Services have not met the foregoing warranty, Company shall give Endgame prompt notice of the deficiency, including details sufficient to allow Endgame to replicate the deficiency, and in such event Endgame will use commercially reasonable efforts to remedy the identified deficiency. If Endgame does not remedy the deficiency, either party may terminate the affected Order Form and in such case Endgame will refund to Customer the amount of any pre-paid Fees for the period after termination as its exclusive remedy. This warranty does not cover any problem with or damage to the Services to the extent caused by: (i) Company’s negligence, abuse, misuse, improper handling and/or use, (ii) modifications by anyone other than Endgame or its Subcontractors; (iii) failure to operate the Platform in accordance with the documentation; or (iv) a Force Majeure Event.

THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, ENDGAME EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM ENDGAME OR ELSEWHERE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

Without limiting the foregoing and except as set forth in the Service Level Agreement, Endgame makes no warranty that the Services will meet Company’s requirements, provide specific results or be available on an uninterrupted, secure, or error-free basis. Company acknowledges that the provision of the Services depends on necessary hardware, software, networks, storage, and other products and services provided by third parties, which are not controlled by Endgame, and that Endgame will not be liable for any unavailability of the Services that is due to the outage or failure to perform of any such third party products or services. Company assumes sole responsibility and liability for any output or results obtained from the use of the Services and for conclusions drawn from such use. Endgame will have no liability for any claims, losses or damage caused by arising out of or in connection with any Data or any other information provided to Endgame by Company in connection with the Services or any actions taken by Endgame at Company’s direction.

Endgame will indemnify, defend and hold Company and its officers, directors, employees, contractors, representatives and agents harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and other professional fees, to the extent that they are based upon a third party claim that the Services, as provided by Endgame to Company pursuant to this Agreement, infringe any U.S. patent or any copyright or misappropriate any trade secret, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim awarded in final judgment against or paid in settlement by Company. Endgame’s obligations under this Section 7.1 are contingent upon: (a) Company providing Endgame with prompt written notice of such claim; (b) Company providing reasonable cooperation to Endgame, at Endgame’s expense, in the defense and settlement of such claim; and (c) Endgame having sole authority to defend or settle such claim.

If Company’s use of the Services is, or in Endgame’s opinion is likely to be, enjoined due to the type of claim specified in Section 7.1, then Endgame may at its sole option and expense: (i) replace or modify the Services to make them non-infringing and of equivalent functionality; (ii) procure for Company the right to continue using the Services under the terms of this Agreement; or (iii) if Endgame is unable to accomplish either (i) or (ii) despite using its reasonable efforts, terminate Company’s rights and Endgame’s obligation under this Agreement with respect to such Services and refund to Company a pro-rata portion of the fees paid for the remaining term during which Company would have had access to the Services.

Notwithstanding the terms of Section 7.1, Endgame will have no liability for any infringement or misappropriation claim of any kind to the extent that it results from: (i) the combination, operation or use of the Services with equipment, devices, software or data (including without limitation Data) not supplied by Endgame, if a claim would not have occurred but for such combination, operation or use; or (ii) Company’s or an Authorized User’s use of the Services other than in accordance with this Agreement.

THE PROVISIONS OF SECTIONS 7.1-7.3 SET FORTH THE ENTIRE OBLIGATIONS AND SOLE AND EXCLUSIVE REMEDIES OF ENDGAME AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF ANY KIND.

7.5 Indemnification by Company. Company will indemnify, defend and hold

Endgame and its officers, directors, employees, contractors, representatives and agents harmless from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and other professional fees, arising out of or in any way connected with (i) Company’s access to or use of the Services, or (ii) the Data, including but not limited to, the transmission and submission of the Data to the Services, and infringement or misappropriation of any third party proprietary rights by the Data, provided that Endgame: (a) promptly notifies Company in writing of the claim; (b) grants Company sole control of the defense and settlement of the claim; and (c) provides Company, at Company’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the claim.

EXCEPT FOR EACH PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 7, EACH PARTY’S TOTAL LIABILITY TO THE OTHER (AND, IN ENDGAME’S CASE TO THE COMPANY’S AUTHORIZED USERS) FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNTS PAID TO ENDGAME BY COMPANY FOR THE SERVICES DURING THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY. NEITHER PARTY WILL BE LIABLE TO THE OTHER (AND IN THE CASE OF ENDGAME, TO COMPANY’S AUTHORIZED USERS) FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR FOR COSTS OF SUBSTITUTE GOODS OR SERVICES, OR FOR LOSS OF PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, ARISING IN ANY WAY OUT OF THIS AGREEMENT OR RESULTING FROM ACCESS TO, USE OF, OR INABILITY TO ACCESS OR USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT A PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF AN EXCLUSIVE REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

NOTWITHSTANDING THE FOREGOING, FOR LIABILITY ARISING FROM EACH PARTY’S INDEMNIFICATION OBLIGATIONS IN SECTION 7, IN NO EVENT SHALL THE AGGREGATE LIABILITY FOR ANY DAMAGES UNDER THIS AGREEMENT OR IN CONNECTION WITH THE SERVICES EXCEED 10X THE AMOUNTS PAID TO ENDGAME BY COMPANY FOR THE SERVICES DURING THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO THE LIABILITY.

Both parties agree to comply fully with all relevant export laws and regulations of the United States and other applicable jurisdictions to ensure that neither the Services, nor any direct product thereof, are: (i) downloaded or otherwise exported or re-exported directly or indirectly in violation of such export laws and regulations; or (ii) used for any purposes prohibited by the such export laws and regulations, including but not limited to nuclear, chemical, or biological weapons proliferation.

The Services and its documentation are “commercial items” as that term is defined in FAR 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212, DFARS 227.7202 and other government acquisition regulations, as applicable. If the Services and its documentation are being acquired by or on behalf of the U.S. Government, then, as provided in FAR 12.212 and DFARS 227.7202-1 through 227.7202-4, as applicable, the U.S. Government’s rights in the Services and its documentation will be only those specified in this Agreement.

This Agreement and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions. Company and Endgame irrevocably consent to the jurisdiction of, and exclusive venue in, the state or federal courts located in the Central District of the State of California for any disputes arising under this Agreement.

Endgame has implemented, and will maintain, an information security program ("Information Security Program") that includes reasonable administrative, technical, and physical safeguards designed to ensure the confidentiality, security, integrity, and availability of Company Data and Company Confidential Information and to protect against unauthorized access, use, disclosure, alteration or destruction of Company Data and Company Confidential Information.

Neither party may assign or transfer any rights or obligations under this Agreement, whether by operation of law or otherwise, without the other party’s prior written consent. Any attempt to assign or transfer this Agreement without such consent will be void. Notwithstanding the foregoing, each party may assign or transfer this Agreement without the other party’s consent to an affiliate or a third party that acquires the assigning party by merger, the sale of the majority of such party’s stock, or the acquisition of all or substantially all of such party’s assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their successors and permitted assigns.

All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; (iii) four (4) business days after having been sent by registered or certified mail, return receipt requested, and postage prepaid; or (iv) when delivered via electronic mail to legal@endgame.io. All such notices will be sent to the addresses set forth above or to such other address as may be specified by either party to the other party in accordance with this Section.

In the event that any provision of this Agreement is held to be invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the remaining provisions of this Agreement will remain in full force and effect.

A party’s failure to enforce any right or provision of this Agreement will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of such party.

Except as expressly set forth in this Agreement, the exercise by the parties of any of their remedies under this Agreement will be without prejudice to their other remedies under this Agreement or otherwise.

Neither party will be responsible for any failure or delay in its performance under this Agreement (except for the payment of money) due to causes beyond its reasonable control, including, but not limited to, shortages of or inability to obtain labor, energy, raw materials or supplies, war, acts of terror, riot, pandemics, outbreaks, acts of God or governmental action.

Each party acknowledges that a breach by the other party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching party may seek injunctive relief enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching party may be entitled at law or in equity.

During the term of the Agreement, Endgame will obtain and maintain the following: (a) “Commercial General Liability” insurance with limits of not less than $2,000,000 per occurrence and $2,000,000 general aggregate, covering bodily injury and property damage; (b) (b) “Professional Liability/Errors and Omissions” insurance with a limit of $1,000,000 per claim and $1,000,000 aggregate (c) “Cyber/Network Security & Privacy Liability” insurance with limits not less than $1,000,000 per occurrence and $1,000,000 aggregate.