PLAINSIGHT SOFTWARE FOR CLOUD LICENSE AGREEMENT

This License Agreement (this “License Agreement”) governs your use of the Plainsight software (the “Licensed Application”) from Plainsight Technologies, Inc. (“Plainsight”). BY USING THE LICENSED APPLICATION, YOU AGREE ON BEHALF OF YOU AND YOUR ORGANIZATION (TOGETHER, “YOU” OR “LICENSEE”) TO BE BOUND BY THIS LICENSE AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS LICENSE AGREEMENT, YOU MAY NOT INSTALL OR USE THE LICENSED APPLICATION.

1. LICENSE; SUPPORT

1.1. Scope of Use. Subject to the terms and conditions of this License Agreement, Plainsight hereby grants to Licensee, during the License Period, a limited, royalty-free, non-exclusive, non-transferable license (the “License”) for a single user to download the Licensed Software from a Plainsight-authorized cloud services provider (a “Third-Party Cloud Provider”) and install and use the Licensed Application in object code format for its intended purposes in accordance with the Subscription Plan you selected (the “Subscription Plan”). “License Period” means the period beginning on the date Licensee downloads the Licensed Application and ending on the earlier of (a) the expiration or earlier termination of your Subscription Plan or (b) the date that either party gives the other party written notice of termination under Section 2 below (the “License Period”).

1.2. Restrictions. Licensee will not: (a) copy the Licensed Application or related documentation; (b) translate or decompile, or create or attempt to create, by reverse engineering or otherwise, the source code form of the Licensed Application; (c) modify, adapt, translate or create a derivative work from the Licensed Application; (d) remove any proprietary notices, labels, or marks on the Licensed Application; (e) assign, sublicense, rent or transfer all or any part of the Licensed Application or access to the Licensed Application, to any person or entity without the prior written consent of Plainsight; or (f) use the Licensed Application on behalf of any third party or otherwise to provide outsourcing, service bureau, time sharing, rental or any other services to any third party.

1.3. Limited Customer Support. Plainsight will, in its sole discretion, provide new features, corrections, changes and updates as they become available. Plainsight agrees to provide Licensee with limited customer service to answer technical questions during the License Period. Licensee understands that Plainsight makes no representations regarding response time to technical questions. All technical questions should be directed to Plainsight via email to [email protected] during its normal business hours of 9:00 AM to 5:00 PM, Monday through Friday, Pacific Standard Time.

1.4. Customer Duties.
1.4.1. Licensee is responsible for acquiring and maintaining, at its sole cost and expense, all telecommunications and Internet services and other hardware, devices, and software required to access, use and interoperate with the Licensed Application.
1.4.2. In order to access and use the Licensed Application, Licensee will register and create a unique, password-protected account. Licensee will take reasonable measures to safeguard its account passwords and log-in information. As between the parties, Licensee will be solely responsible for any use of the Licensed Application under its account, whether authorized by Licensee or not.

2. TERMINATION

2.1. Cancellation. Each Subscription Plan will automatically renew at the end of the applicable subscription period (e.g., monthly or annually) unless you cancel your subscription prior to the end of your current Subscription Plan. You must cancel your Subscription Plan through the Third-Party Cloud Provider, subject to the cancellation terms of the Third-Party Cloud Provider.

2.2. Plainsight Termination. Plainsight may, in its sole discretion, revoke the License and terminate this License Agreement at any time upon notice to Licensee, including upon any breach by Licensee of any term or condition of this License Agreement.

2.3. Effect of Termination. In the event of cancellation or termination, Plainsight will have no further obligations to Licensee and, subject to the terms of your agreement with the Third-Party Cloud Provider, the License Period will end and you may no longer use the Licensed Application. Section 1.2, Section 3, Sections 4 through 11, and this Section 2.3 of this License Agreement will survive termination for any reason. Upon any termination of this License Agreement, Licensee will promptly and completely remove and destroy any and all Licensed Application and related documentation and all copies thereof along with any other materials provided by Plainsight under this License Agreement.

3. PAYMENT

3.1. Payment. Unless otherwise agreed by Plainsight in writing, Licensee shall be charged the applicable fees monthly in advance via the Third-Party Cloud Provider from whom you obtained the Licensed Application in accordance with your Subscription Plan. Licensee is responsible for keeping its credit card information and billing information up to date. Except where prohibited by applicable law and subject to the Third-Party Cloud Provider’s terms, payments are non-refundable (including if this License Agreement terminates in the middle of the month or if Licensee downgrades its Subscription Plan).

3.2. Taxes. Licensee is solely responsible for all taxes, fees, duties and governmental assessments (except for taxes based on Plainsight’s net income) that are imposed or become due in connection with the subject matter of this License Agreement.

4. INTELLECTUAL PROPERTY RIGHTS

4.1. Ownership. Licensee acknowledges and agrees that, as between Plainsight and Licensee, Plainsight owns and retains all rights, title, and interest in and to the Licensed Application and all Plainsight Intellectual Property. This License Agreement will not constitute a sale of the Licensed Application and no title or proprietary rights to the Licensed Application are transferred to Licensee. “Plainsight Intellectual Property” means all of Plainsight’s technology, inventions, discoveries, innovations, know-how, methods, processes, information, trademarks, software, documentation, and interfaces, including all improvements, modifications, works in process, derivatives, or changes, whether tangible or intangible, embodied in any form, and all Intellectual Property Rights in the foregoing. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or later in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

4.2. Rights to Feedback. Licensee acknowledges that Plainsight has the right to incorporate into any technology, products, and/or other services of Plainsight any and all observations concluded by Plainsight in connection with Licensee’s use of the Licensed Application, and any and all results, ideas, feedback, and suggestions provided and offered by Licensee in connection with this License Agreement. Licensee disclaims, and assigns and conveys to Plainsight, any and all proprietary interest in and to any and all such results, ideas, feedback, and suggestions.

4.3. Injunctive Relief. Licensee acknowledges that the Licensed Application is a unique, confidential and valuable asset and trade secret of Plainsight, and Plainsight will have the right to obtain (in addition to any other legal and equitable remedies which may be available to Plainsight) all equitable and legal redress which may be available to it for the breach or threatened breach of this License Agreement, including injunctive relief, in any court of competent jurisdiction, without the necessity of proving actual damages or posting any bond.

5. DATA AND CONTENT

5.1. Consent to Privacy Policy. Information collected by Plainsight in connection with the Licensed Application (including end user information provided at registration or in connection with requests for support) is maintained in accordance with Plainsight’s Privacy Policy. By entering into this License Agreement, Licensee consents to Plainsight’s Privacy Policy.

5.2. Data Rights. Plainsight may use and disclose data derived from the use of the Licensed Application (a) as part of Plainsight’s business operations, on an aggregate, anonymous basis such that any use or disclosure does not permit a third party to associate any particular data with Licensee and (b) if required by applicable law. In addition, Plainsight may use data derived from the use of the Licensed Application for Plainsight’s internal purposes, including to operate, manage, maintain, and improve Plainsight’s product and service offerings.

5.3. Rights to Process Data and Content. Licensee represents and warrants that it has all rights, licenses, and consents necessary to process through the Licensed Application all data (including all video, visual images and other content and collectively, “Licensee Content”) that Licensee intends to process or processes using the Licensed Application.

6. DISCLAIMER

LICENSEE ACKNOWLEDGES THAT ITS USE OF THE LICENSED APPLICATION IS AT ITS OWN RISK. THE LICENSED APPLICATION IS PROVIDED SOLELY ON AN “AS-IS” BASIS. PLAINSIGHT MAKES, AND LICENSEE RECEIVES, NO WARRANTIES, EXPRESS, IMPLIED, OR OTHERWISE. PLAINSIGHT EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NON-INFRINGEMENT. PLAINSIGHT DOES NOT WARRANT THAT THE LICENSED APPLICATION WILL BE OPERABLE OR THAT LICENSEE’S USE OF THE LICENSED APPLICATION WILL BE UNINTERRUPTED OR ERROR FREE OR THAT IT WILL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT, DEVICE, SOFTWARE, OR OTHER MATERIALS. WITHOUT LIMITATION OF THE FOREGOING, PLAINSIGHT WILL HAVE NO LIABILITY FOR ANY: (A) ERRORS, MISTAKES, OR INACCURACIES OF ANY INFORMATION OR DATA; (B) ANY UNAUTHORIZED ACCESS TO OR USE OF THE LICENSED APPLICATION; (C) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE LICENSED APPLICATION; (D) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE LICENSED APPLICATION BY ANY THIRD PARTY; OR (E) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF THE LICENSED APPLICATION OR OF ANY INFORMATION OR DATA OBTAINED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE ON OR THROUGH THE LICENSED APPLICATION.

7. LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PLAINSIGHT BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES OR LOST PROFITS (EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM OR RELATING TO THIS LICENSE AGREEMENT OR ITS SUBJECT MATTER, INCLUDING DAMAGES ARISING FROM LOSS OF DATA, FROM THE DISABLING OF THE LICENSED APPLICATION, OR ANY OTHER DAMAGES, HOWEVER CAUSED, AND UNDER ANY THEORY OF LIABILITY. WITHOUT LIMITATION OF THE FOREGOING, UNDER NO CIRCUMSTANCES WILL PLAINSIGHT’S TOTAL AGGREGATE LIABILITY TO LICENSEE OR ANY THIRD PARTY FOR ANY AND ALL CLAIMS ARISING UNDER THIS LICENSE AGREEMENT, INCLUDING WITHOUT LIMITATION ARISING OUT OF LICENSEE’S USE OF THE LICENSED APPLICATION, EXCEED US$10,000.00.

8. INDEMNIFICATION

Licensee agrees to indemnify, defend and/or settle, and pay damages awarded pursuant to any third-party claim brought against Plainsight arising from or relating to (a) Licensee’s use of the Licensed Application; (b) any Licensee Content; (c) Licensee’s breach of this License Agreement or (d) Licensee’s breach of any agreement between or obligation to a Third-Party Cloud Provider. In the event any claim is made against Plainsight, Plainsight will promptly notify Licensee in writing of such claim, and promptly tender the control of the defense and settlement to Licensee (at Licensee’s expense) and cooperate fully with Licensee (at Licensee’s request and expense) in defending or settling such claim. Licensee will not enter into any settlement or compromise of any such claim without Plainsight’s prior written consent.

9. CONFIDENTIALITY

9.1. Confidential Information. Licensee will (and will ensure that its employees will) maintain the strict confidentiality of the Licensed Application and all information and materials contained in the Licensed Application and all information and materials conveyed by Plainsight to Licensee under this License Agreement, including but not limited to, financial information, pricing information, marketing information and the Licensed Application’s features and modes of operation, inventions (whether or not patentable), techniques, processes, algorithms, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and function specifications, analysis and performance information, user documentation and other technical information, plans and data (collectively, the “Plainsight Proprietary Information”). This undertaking will not apply to information that becomes part of the public domain through no act or omission of Licensee or is in Licensee’s lawful possession (as demonstrated by written documentation) prior to the date of this License Agreement. Licensee shall not use the Plainsight Proprietary Information for any purpose other than exercise its rights under this License Agreement.

9.2. Non-Disclosure. Licensee will not permit anyone other than its own most trusted employees with a need to know to access or use the Plainsight Proprietary Information. Licensee will not disclose the Plainsight Proprietary Information to any third party and will not use the Plainsight Proprietary Information other than as expressly authorized hereunder.

10. CHOICE OF LAW; ARBITRATION

10.1. Choice of Law. This License Agreement is governed by and interpreted in accordance with the laws of the State of California, without giving effect to its principles of conflict of laws. The parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Transactions Act shall not apply to these Terms.

10.2. Arbitration. Any action or proceeding arising out of or relating to the License Agreement shall be resolved by arbitration in Los Angeles, California in accordance with the Commercial Dispute Resolution Procedures of the American Arbitration Association and, in the event either party seeks injunctive or provisional relief (subject to Section 4.3 above), the Optional Rules for Emergency Measures of Protection. The arbitration will be heard and determined by a single arbitrator experienced in the software industry. The arbitrator’s decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, but not limited to, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration panel, except as may lawfully be required in judicial proceedings relating to the arbitration or by disclosure rules and regulations of securities regulatory authorities or other governmental agencies. No disputes may be arbitrated on a class or representative basis. Arbitration can decide only the individual Dispute and the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated. BY ENTERING INTO THESE TERMS, YOU HEREBY IRREVOCABLY WAIVE ANY RIGHT YOU MAY HAVE TO JOIN CLAIMS WITH THOSE OF OTHERS IN THE FORM OF A CLASS ACTION OR SIMILAR PROCEDURAL DEVICE. ANY CLAIMS ARISING OUT OF, RELATING TO, OR CONNECTED WITH THESE TERMS MUST BE ASSERTED INDIVIDUALLY.

11. MISCELLANEOUS

11.1. No Assignment. Licensee will not sublicense, assign, delegate, or otherwise transfer this License Agreement or any of the related rights or obligations for any reason and any attempt by Licensee to do so will be void.

11.2. Notices. Legal notices under this License Agreement shall be in writing as follows: (a) if to Licensee, to the email address provided upon registration; and (b) if to Plainsight, to: 548 Market Street 22409, San Francisco, CA 94104, Attn: Legal, email: [email protected]. Any notice shall be deemed given: (i) when sent, if by email; (ii) upon receipt if sent by personal delivery or by certified or registered U.S. Mail (return receipt requested); or (iii) one day after it is sent if by next day delivery by a major commercial delivery service.

11.3. Entire Agreement. This License Agreement constitutes the complete and exclusive statement of the terms and agreement between Plainsight and Licensee and supersedes all prior representations, understandings and communications, oral or written, between the parties with respect to the subject matter of this License Agreement.

11.4. No Waiver. The failure of Plainsight to insist, in any one or more instances, upon the performance of any term of this License Agreement will not be construed as a waiver or relinquishment of its rights to such performance or future performance of such term, and the obligation of Licensee with respect to such term will continue in full force and effect.

11.5. Severability. In the event that any provision of this License Agreement is invalid, unlawful, or unenforceable to any extent, the parties agree that such provision will be deemed modified to the minimal extent necessary to make it enforceable while still retaining the intent of the parties. In such event, the remainder of this License Agreement will not be affected, and the remaining provisions of this License Agreement will continue to be valid and may be enforced to the fullest extent permitted by law.

11.6. Amendment. This License Agreement will be subject to modification or amendment only by a writing executed by authorized representatives of both parties.

11.7. Export Compliance. Licensee will comply, and will not cause Plainsight to fail to comply, with all applicable export control laws of the United States and any other applicable governmental authority, including without limitation, the U.S. Export Administration Regulations.

Last updated: July 28, 2021