INTRODUCTION

This Agreement forms a binding agreement between Digital DNA Technologies, Inc. (“Digital DNA”) and Customer (defined herein) and all Customer Users (defined herein), whether in relation to a trial or paid subscription to the Digital DNA Solution (defined below).

PLEASE READ THIS AGREEMENT CAREFULLY. BY REGISTERING FOR AND/OR ACCESSING, BROWSING, USING, OR SUBSCRIBING TO THE SOLUTION, CUSTOMER AND CUSTOMER USERS ACKNOWLEDGE THAT THEY HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN THE MANNER DESCRIBED HEREIN WITH NOTICE. IF AT ANY TIME YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, THEN IMMEDIATELY TERMINATE THE CUSTOMER USER ACCOUNT(S) AND CEASE ALL USE OF THE SOLUTION.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT.

IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF YOURSELF, YOU ARE DEEMED THE “CUSTOMER” HEREUNDER. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY (THE “CUSTOMER” SHALL BE THE ENTITY IDENTIFIED BY YOU AS PART OF PLACING THE ORDER), AND YOU REPRESENT THAT (I) YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY; AND (II) YOU HAVE READ THESE TERMS; AND (III)YOU UNDERSTAND THESE TERMS, AND (IV) AGREE TO THESE TERMS ON BEHALF OF CUSTOMER (THE SUBSCRIBING ENTITY IDENTIFIED IN THE ORDER). IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT, AND YOU MAY NOT USE OR ACCESS THE SOLUTION IN ANY WAY.

ANY USER AUTHORIZED TO USE OR ACCESS THE SOLUTION BY THE CUSTOMER OR ITS DESIGNEE SHALL BE DEEMED A CUSTOMER USER, AND THE CUSTOMER SHALL BE RESPONSIBLE AND LIABLE FOR ANY SUCH USERS’ VIOLATION OF THE TERMS HEREIN. CUSTOMER AND CUSTOMER USERS AGREE THAT EACH CUSTOMER USER SHALL BE OBLIGATED TO COMPLY WITH ALL THE RESTRICTIONS ON USE REGARDING THE SOLUTION AND ANY MATERIAL ANY CONTENT MADE AVAILABLE THEREON AND BY ACCESSING AND OR USING THE SOLUTION IN ANY WAY. CUSTOMER AND ALL CUSTOMER USERS AGREE THAT ALL TERMS OF THIS AGREEMENT APPLY TO THEM, SPECIFICALLY INCLUDING, WITHOUT LIMITATION, ALL THE DISCLAIMERS AND LIABILITY LIMITATIONS OF THIS AGREEMENT.

NEITHER CUSTOMER NOR ANY CUSTOMER USER MAY ACCESS OR USE THE SOLUTION IN ANY IF IT DOES NOT AGREE WITH THE TERMS HEREIN. NEITHER CUSTOMER NOR ANY CUSTOMER USER MAY ACCESS OR USE IN ANY WAY THE SOLUTION IF IT COULD REASONABLY BE DEEMED A COMPETITOR OF DIGITAL DNA. NEITHER CUSTOMER NOR ANY CUSTOMER USER MAY ACCESS THE SOLUTION FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE, OR FUNCTIONALITY OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.

NOTWITHSTANDING ANY OF THE PRECEDING, IF CUSTOMER AND DIGITAL DNA HAVE EXECUTED A WRITTEN USER AGREEMENT IN CONNECTION WITH THE DELIVERY OF THE DIGITAL DNA SOLUTION AND/OR PROFESSIONAL SERVICES (“SIGNED AGREEMENT”), THEN THE TERMS OF THE SIGNED AGREEMENT SHALL GOVERN AND CONTROL INSTEAD. THIS AGREEMENT SHALL HAVE NO EFFECT WITH RESPECT TO THE SUBJECT MATTER COVERED THEREIN.

TERMS AND CONDITIONS:

1.    Certain Definitions.

o   "Agreement" shall mean these Terms of Service (including the Introduction and Terms and Conditions) and any attached exhibits, any SOW entered into by the Parties (if relevant), and any other terms incorporated herein by reference, including from the Order.

o   "Collection Event" shall mean the successful initiation and completion of a single, authorized remote data collection request utilizing the Solution, regardless of the volume of data retrieved, unless otherwise defined in the applicable Order.

o   "Customer" shall mean the individual or, where relevant, the entity identified in the Order as the customer or client.

o   "Customer Branding Elements" shall mean any Customer branding provided by Customer to be incorporated on the web pages of the Solution for viewing by Customer Users (to the extent relevant).

o   "Customer Data" shall mean any customer-specific data, information, or other items originated by Customer or Customer Users uploaded to the Solution on behalf of or for Customer's benefit, including for clarity any use account information or information about Customer cases and any reports. For clarity, and notwithstanding anything else herein, Customer Data shall expressly exclude any Third-Party Material obtained from third-party collaborators communicating to Customer via the Solution or any Supplementary Material delivered by Digital DNA to the customers of the Solution.

o   "Customer User" means any employee of Customer or any contractor, agent, or designee of Customer that Customer or its designee authorizes or otherwise allows access to the Solution (or any component thereof). For clarity, a Customer User shall not include third-party collaborators who have separately entered into an agreement with Digital DNA covering the use of the Solution and who merely communicate with Customer via the platform.

o   "Documentation" means the written and/or electronic end-user documentation pertaining to the use of the Solution ordered hereunder that is provided by Digital DNA to Customer with access to the relevant Solution.

o   "Malicious Code" means viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents, or programs. For clarity, Malicious Code shall not include any software bugs or errors handled through support or maintenance, or any license key or other equivalent code that might limit the functionality or scope of the use of any Solution or portion thereof to the scope of the subscription and/or license (as applicable) purchased by Customer hereunder.

o   "Order" shall mean an Order identifying the products/services purchased by Customer hereunder, any additional access or use limitations/restrictions, the Subscription Term, and the pricing and payment terms relating to the same. For clarity, an Order can consist of (a) an order made via the web, identifying the products/services ordered, pricing, name of customer, etc.; (b) an Order mutually approved by the parties, which is attached hereto as an exhibit (if any) or separately executed (c) a Digital DNA invoice or other ordering document mutually approved and executed by the parties which reference this Agreement; or (d) an authorized reseller invoice or ordering document agreed to between Customer and authorized reseller which is based on a valid Digital DNA quote to the authorized reseller, where the purchase is indirect through an authorized reseller. Multiple Orders identifying multiple products/services may apply to this Agreement, provided that unless expressly stated otherwise in a mutually agreed upon Order, the terms specified in an Order shall be relevant only to the specific products/services listed on the applicable Order. Any Order executed between Customer and Digital DNA shall be incorporated by reference into this Agreement.

o   "Professional Services" shall mean any professional services to be delivered by Digital DNA personnel, as more specifically outlined in a mutually agreed upon Statement of Work or an Order. Professional Services expressly excludes any Support and Maintenance delivered hereunder.

o   "Solution" shall mean the hosted offering identified in the Order, including any back-end software or technology, or any client software (if any) ever delivered and made available by Digital DNA to Customer (or Customer Users) via its website, including related end-user documentation and updates and upgrades of the same provided. For clarity, the definition of Solution expressly excludes any Supplementary Material supplied in connection with the Solution, and it further excludes Customer Data uploaded to the Solution by Customer Users, any Customer Branding Elements, and any Third-Party Materials provided via third-party collaborators who are also users of the Solution.

o   "SOW" or "Statement of Work" shall mean a statement of work executed by the parties that identifies Professional Services to be delivered by Digital DNA to Customer and which references this Agreement.

o   "Subscription Term" means the term of the trial or subscription specified in the relevant Order, subject to the termination and renewal rights described herein.

o   "Support and Maintenance Services" has the meaning set forth in Exhibit A.

o   "User Count Limitation" shall mean the maximum number of Customer Users that Customer may have at any time registered to the relevant Solution; the maximum number shall be based on the fees paid by Customer and user types identified on the applicable Order.

2.    Trial of Solution or Proof of Concept.

Suppose you are accessing the Solution in connection with a trial or proof of concept or otherwise accessing the Solution based on a free unpaid solution (as identified in the relevant Order). In that case, the following terms shall apply in addition to other terms, and notwithstanding any terms to the contrary stated in this agreement:

o   the Subscription Term is limited to the term and/or other use limitations identified in the Order, and use of the Solution may be only for the limited purpose of evaluating the Solution and establishing Customer’s desire to purchase a Subscription to the Solution; and

o   the Solution is provided “As Is” without any warranty of any kind; and

o   Customer shall not be entitled to any Support and Maintenance Services or any updates or upgrades; and

o   upon the termination of the trial or proof of concept, if a subscription is not purchased to the Solution, then, Customer and all Customer Users will return any material or content made available to it as part of the trial or proof of concept and will immediately discontinue all use of the Solution.

3.    Subscriptions; User Accounts; Access to Solution; Restrictions.

o   Creating Administrator Accounts and User Accounts.

To access the Solution, Customer and/or Customer Users must register and create accounts, including administrator or other user accounts (collectively “Customer User Accounts”). The customer may assign “administrator” accounts and other “user” accounts based on the User Count limitations (including any increases in the User Count Limitations paid for by Customer). The Administrator can determine the level of access and privileges for Customer Users and is responsible for confirming that Customer User Account information is true, accurate, and complete. Customer Users will receive their unique IDs and passwords to access the Solution, and these credentials shall be granted to named individuals and may not be shared. Still, they may be reassigned to new users (of the same user type), replacing former users who no longer require the use of the Solution for the benefit of Customer. Customer and Customer Users are solely responsible for maintaining the confidentiality of Customer User Account user names and passwords for restricting access to the Solution. Customer is responsible and liable for all Customer Users and the activities that occur under Customer User Accounts. If Customer or any Customer User has any reason to believe that a Customer User Account is no longer secure, it will notify Digital DNA immediately and take appropriate measures (like changing the password) to secure Customer User Account.

o   Access to and Use of Solution.

During the Subscription Term, and subject to the terms of this Agreement, Digital DNA grants to Customer a non-exclusive right: (i) to create Customer User Account(s) for Customer Users and to authorize access to the Solution to Customer Users, subject to any User Count Limitations, (ii) to access and use the Solution in accordance with the user Documentation solely for Customer’s internal business purposes and to allow Customer User’s access to the Solution but only on Customer's behalf for Customer’s internal business purposes. Notwithstanding anything else herein, the access rights to the relevant Solution shall be determined by the type of subscription purchased. Use of the Solution shall be subject to limitations and restrictions stated herein and in the appropriate Order, including any User Count Limitations (based on user type where applicable) or maximum collection counts (maximum number of collections or cases to be managed or monitored using the solution), or specific modules purchases, and/or other limitations or restrictions identified herein (or in the applicable Order). Use of the Solution shall be tracked and billed based on Collection Events unless otherwise specified in the Order.

o   Restrictions.

Except as otherwise expressly permitted under this Agreement, Customer agrees that it shall not, nor shall it permit Customer Users to: (i) use the Solution in excess of or beyond the relevant Subscription Term, User Count Limitations, licensed functionality, and/or other restrictions/limitations described in this Agreement (including in the relevant Order); (ii) make the Solution available to anyone other than Customer Users, or sell, rent, or lease the Solution or use the Solution for the benefit of or on behalf of any third party, e.g., in a service bureau or outsourcing capacity or otherwise; (iii) use the Solution to upload, store, process or transmit infringing, libelous, or otherwise unlawful or tortious material, or to upload, store, transmit, or process material or data in violation of third-party privacy or other rights; (iv) use the Solution to store or transmit Malicious Code; (v) intentionally interfere with or disrupt the integrity or performance of the Solution or third-party data contained therein; (vi) attempt to gain unauthorized access to the Solution, or any part of them, other accounts, computer systems or networks connected to the Solution, or any part of them, through hacking, password mining or any other means or interfere or attempt to interfere with the proper working of the Solution or any activities conducted on the Solution; (vii) modify, adapt, create derivative works based upon, reverse engineer, decompile, or attempt to derive the source code, underlying ideas, algorithms, or internal structure of the Solution. Customer is strictly prohibited from using access to the Solution to create Technical Specifications or 'Clean Room' designs for any functionally competitive product that emulates the workflow logic or User Interface (UI) patterns of the Solution, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation; (viii) release, publish, and/or otherwise make available to any third party (other than Customer Users) the results of any performance or functional evaluation of the Solution without the prior written approval of Digital DNA; (ix) alter or remove any proprietary notices or legends contained on or in the Solution; (x) use the Solution for any unlawful purpose or in violation of any relevant laws or regulations; (xi) use any robot, spider, scraper, or other automated means to access the Solution for any purpose without our express written permission, or bypass any measures we may use to prevent or restrict access to the Solution or collect or harvest any personally identifiable information, including account names, from the Solution (xii) misrepresent the source, identity, or content of information transmitted via the Solution impersonate another person or access another User’s account without that person’s permission or to violate any contractual or fiduciary relationships; (xiii) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Solution, features that prevent or restrict use or copying of any content accessible through the Solution or Solution, or features that enforce limitations on use of the Solution or Solution; (xiv) access or use the Solution in any way if you are a competitor of Digital DNA. The preceding restrictions with respect to the Solution apply equally to any component or portion of the Solution. Digital DNA grants no implied licenses under this Agreement. (xv) use or access the Solution for the purpose of, or in connection with, the design, development, or testing of a functionally competitive product or service. A product or service is "functionally competitive" if it performs the same or substantially similar functions as the Solution, or is intended to replace or compete with the Solution in the marketplace. (xvi) after the termination or expiration of the Subscription Term, engage in the design, development, or launch of a functionally competitive product or service (as defined above) for a period of twelve (12) months following such termination or expiration, using any Confidential Information or specific non-public knowledge gained from accessing the Solution. (xvii) conduct any internal, non-public analysis, testing, or benchmarking of the Solution's performance, functionality, or features for the purpose of informing, improving, or designing the Customer's or a third party’s own competing products or services. (xviii) attempt to bypass, interfere with, or otherwise circumvent Digital DNA’s metering or usage tracking system designed to count Collection Events or other usage metrics for billing purposes.

4.    Support and Maintenance; Professional Services.

o   Support and Maintenance Services.

Subject to the terms of this Agreement, during the Subscription Term, Digital DNA will maintain the Solution and provide the Support and Maintenance Services outlined in Exhibit A attached hereto.

o   Professional Services.

Subject to the terms of this Agreement, Digital DNA agrees to use commercially reasonable efforts to deliver the Professional Services mutually agreed to by the parties (if any), to the extent such Professional Services are outlined/described in Order or a mutually agreed upon SOW which references this Agreement. Any additional terms relevant to such Professional Services, including, where appropriate, fees, payments, and timing for payment of the applicable fees and expenses, acceptance or rejection criteria and timing, and Customer obligations to assist, etc., shall all be outlined in the relevant Order or SOW, as applicable. Where appropriate to the Professional Services, Customer grants Digital DNA a right to access and use Customer User Accounts and/or any other material delivered to Digital DNA by Customer in connection with the delivery of such Professional Services. In connection with any Professional Services, each party will (i) designate a primary point of contact with the appropriate functional knowledge and skills to work with the other party, who shall be responsible for all communications between the parties with respect to delivery, review, and acceptance of the Professional Services. Customer acknowledges that Digital DNA’s ability to timely deliver Professional Services is dependent in part upon Customer’s ongoing cooperation and assistance. Accordingly, Customer will supply to Digital DNA, on a timely basis, all information, material, and assistance reasonably necessary for Digital DNA to perform the Professional Services. Digital DNA’s performance period under this Agreement shall be appropriately and equitably extended to account for any delays resulting from Customer’s failure to fully comply with the preceding. To the extent identified in the Order or SOW, Customer will reimburse Digital DNA for reasonable travel and lodging expenses associated with the Professional Services ordered, if any apply.

5.    Certain Customer Responsibilities.

o   General.

Customer shall:

§  be responsible and liable for any action or inaction of Customer Users which is in violation of this Agreement and Customer’s obligations/restrictions herein;

§  use commercially reasonable efforts to prevent unauthorized access to or use of the Solution, and notify Digital DNA promptly of any such unauthorized access or use;

§  make any disclosures to and obtain any consents from Customer Users as required by any applicable law, rule, or regulation for the use, processing, transfer, disclosure, or access to Customer Data in or for the Solution or as otherwise contemplated by this Agreement;

§  be responsible for ensuring that all Customer Users are over the age of 18 and rightfully accessing the Solution; and

§  be responsible for obtaining and maintaining appropriate equipment and services needed to connect to, access, or otherwise use the Solution, including, without limitation, computers, computer operating system, and web browser.

o   Compliance Audit.

Customer agrees that Digital DNA, or its designated agent, may, upon providing ten (10) business days' prior written notice and no more than once every twelve (12) months, conduct a review or audit of Customer's relevant records, systems, and equipment relating to the use of the Solution to verify compliance with the terms of this Agreement, including all User Count Limitations, collection event accuracy, and restrictions on competitive use. Customer shall reasonably cooperate with any such audit. If the audit reveals non-compliance resulting in unpaid Fees of more than five percent (5%) for the audited period, Customer shall reimburse Digital DNA for the reasonable cost of the audit in addition to paying any underpaid Fees immediately.

o   Customer Data.

As between Digital DNA and Customer, Customer, and not Digital DNA, will have sole responsibility for the type, accuracy, quality, integrity, legality, and reliability of all Customer Data submitted, posted, transmitted, or otherwise uploaded to or shared via the Solution by Customer (and/or Customer User(s)) and Customer, Customer, and not Digital DNA will be responsible and liable for the means by which Customer (and Customer Users) acquire, upload, transmit, share and process Customer Data in connection with the Solution. Digital DNA does not assume any duty or obligation to review, revise, or otherwise correct or modify Customer Data. Customer understands and agrees that Digital DNA is not liable to Customer for any errors, omissions, or inaccuracies in data displayed by use of the Solution to the extent caused by errors, omissions, or inaccuracies in Customer Data and for any Customer User’s disclosure of such Customer Data to third parties using the features or functionality of the Solution. Customer hereby grants Digital DNA a limited, non-exclusive, royalty-free license to reproduce, adapt, perform, distribute, extract, access, copy, display, process, and use Customer Data solely as necessary for Digital DNA to:

§  provide the Solution features and functionality to Customer during a Subscription Term;

§  provide other Professional Services described herein

§  to address service or technical problems at Customer's request in connection with customer support matters.

Customer represents and warrants to Digital DNA that Customer has sufficient rights in Customer Data to authorize the license granted to Digital DNA hereunder and that Customer Data and its use hereunder will not violate or infringe the personal, property, or proprietary rights of any third party. Notwithstanding anything else herein, Digital DNA reserves the right but is not obligated to reject and/or remove any Customer Data that it believes, in its sole discretion, violates any provision of this Agreement or that violates or infringes any third-party personal, property, or proprietary right.

o   Communications.

Customer acknowledges that Customer is solely responsible for any Customer User’s use of electronic mail and Short Message Service (SMS) in connection with the Solution (if any). Customer represents and warrants that it will comply with all applicable laws, statutes, ordinances, and regulations (including, without limitation, the CAN-SPAM Act of 2003 and any relevant data protection or privacy laws) in connection with its use of the Solution.

o   Branding.

If, as part of the type of subscription purchased, Digital DNA has authorized Customer to have its own branding displayed on certain of the web pages of the Solution, then the following shall apply:

§  Customer may upload certain Customer Branding Elements (in the size and format identified by Digital DNA) to the Solution;

§  Customer represents and warrants that Customer Branding Elements are owned or licensed by Customer and not infringing upon or otherwise violate any third-party proprietary or property rights of any kind;

§  Customer grants Digital DNA the right to display Customer Branding Elements to Customer Users; and

§  Digital DNA and its designees reserve the right, in their sole and absolute discretion, to remove any Customer Branding Elements if third-party claims that use or display of the same may violate third-party rights or if Digital DNA otherwise has reason to believe that use or display of the same may infringe third party rights or otherwise harm Digital DNA.

6.    Materials (Other Than Customer Data) Available Via the Solution.

o   Third-Party Materials.

The Solution may allow Customer access to information and data from a variety of sources, including certain third-party uploaded and shared data and materials, for example, data or information relating to RFP responses, pricing estimates, budgets, estimated legal fees, or other material, information, content or data made available from third parties via the Solution, including third-party collaborators, bidders, or other users of the Solution. (collectively referred to as “Third Party Material”). To the extent Customer is provided access rights to such Third Party Material via the Solution, then Customer understands and agrees that:

§  Use of the Third-Party Material will be limited to the use restrictions identified by such third party, and use shall be limited to use with respect to the Solution (unless otherwise provided outside of the Solution as well); and

§  Digital DNA provides no warranties, express or implied, of any kind with respect to such Third-Party Material, and Digital DNA is neither responsible nor liable in any way for the accuracy, quality, integrity, legality, reliability of such Third-Party Material or the continued interoperability of Solution with such materials or any systems of third-party content providers. Warranties, if any provided, shall be provided directly by the specific third party to Customer.

Notwithstanding anything else herein, Digital DNA reserves the right but is not obligated, to reject and/or remove any Third-Party Material from the Solution if it believes, in its sole discretion, that such material violates any provision of this Agreement or that violates or infringes any third party personal, property or proprietary right.

o   Aggregated Statistical Data.

Digital DNA may collect aggregated, analytical, statistical data and information regarding the usage of the Solution and/or data uploaded to the Solution by users that may be generically useful to all users (for example, average legal rates for law firms in specific territories, average case costs, etc.), provided in every case such data and information does NOT contain any personally identifiable information about any user of the system and provided the information cannot be tied explicitly to Customer or any specific user (“Aggregated Statistical Data”). Customer agrees that and Digital DNA shall have a perpetual, irrevocable, fully paid up and royalty fee right to collect, use, display, reproduce, modify, publish, distribute, list such data in any form or format through any applicable channels, including:

§  to collect, use, display, and disclose such Aggregated Statistical Data to its customers via the Solution (or as part of Supplementary Material);

§  to improve the feature available through the Solution;

§  to create new features or functionality; and

§  to aggregate data and collect insights from the data to improve its offering.

Customer understands and agrees that as between the parties, such as Aggregated State.

o   Supplementary Material.

As part of the Solution or as part of deliverables resulting from Professional Services provided hereunder, Digital DNA may provide Customer and Customer Users access to certain Aggregated Statistical Data (defined herein), sample templates, sample budgets, staffing models, sample service descriptions, sample rates, sample workflow, sample task lists, or formulas or other self-help material or tools to be used in connection with the use of the Solution (collectively “Supplementary Material”). Customer (and Customer Users) understand and agree that notwithstanding anything else in this Agreement:

§  as between the parties, Digital DNA shall continue to own the Supplemental Material even if delivered in connection with other deliverables and;

§  such Supplementary Materials are provided to assist Customer and can be used by Customer as a tool or supplemental information, but such material may not replace Customer’s judgment and reason, all such use of the Supplementary Material is at Customer's sole risk, and Digital DNA provides such Supplementary Material “AS IS” and that Digital DNA and its licensors make no warranties with respect to the same and disclaims all implied warranties and liabilities in connection with Customer’s or Customer User’s use of the same.

7.    Fees; Payment Terms; Taxes; Fees Upon Renewal.

o   Fees; Payment Terms; Taxes.

All fees are as set forth in the Order or relevant SOW, each as appropriate (collectively “Fees”) shall be payable in U.S. dollars. Fees for consumption-based services shall be calculated monthly based on accrued Collection Events (or other metric defined in the Order) and shall be due within thirty (30) days of the invoice date. Fees for Professional Services shall be due within thirty (30) days of the invoice. Unless the parties agree otherwise in the relevant Order, the Fees due in connection with the subscription to the Solution must be made electronically by the methods specified within the Solution. Customer authorizes Digital DNA to charge Customer selected payment method for Fees owed. Authorization to charge Customer’s chosen payment method account will remain in effect until Customer cancels or modifies its preferences within the Solution; provided, however, that such notice will not affect charges submitted before Digital DNA could reasonably act. Fees may be payable in advance, in arrears, per usage, or as otherwise described in the relevant Order. Customer is responsible for all charges incurred under Customer User Accounts. Where payments are made electronically, Customer is required to keep its billing information current, complete, and accurate (e.g., change in billing address, credit card number, or expiration date), and Customer agrees to notify Digital DNA if the payment method is changed. Except as expressly set forth in this Agreement, Orders, once executed, are non-cancelable, and all Fees due hereunder are non-refundable. Fees are exclusive of, and Customer is required to pay, any sales, use, GST, value-added withholding or similar taxes, or VAT, duties and customs fees, taxes or levies, whether domestic or foreign, other than taxes based on the income of Digital DNA. If Customer’s payment method fails or Customer’s account is past due, Digital DNA may collect fees owed using other collection mechanisms. Any late payments shall be subject to a service charge equal to 1.0% per month of the amount due or the maximum amount allowed by law, whichever is less. If Customer's account is thirty (30) days or more overdue, in addition to any of its other rights or remedies (including but not limited to any termination rights set forth herein), Digital DNA reserves the right to suspend Customer’s and all Customer User’s access to Solution without liability to Customer until such amounts are paid in full.

o   Consumption-Based Fees.

Unless otherwise specified in the Order, the Fees for the Solution shall be calculated on a consumption basis per Collection Event (or other metric defined in the Order). Customer agrees that Digital DNA’s internal metering and usage reports shall be the sole and authoritative record for calculating the number of Collection Events and generating corresponding invoices.

o   Changes to Fees and Pricing.

Any pricing changes shall be disclosed prior to charging. Any changes to the Fees will apply only on a prospective basis. If Customer does not agree to changes in pricing, then Customer may choose not to renew.

8.    Subscription Term; Term of Agreement; Termination.

o   Term.

The term of this Agreement shall commence effective date of the initial Order (or if no date specified the first day the Solution is accessible to Customer) (“Effective Date”) and shall continue until all Subscription Terms (including any renewal terms) have expired or terminated (“Term”).

o   Subscription Term; Subscription Renewal.

The Subscription Term shall commence on the Effective Date of the applicable Order (or if no date specified the first day the Solution is accessible to Customer) and shall continue until terminated by either party in accordance with the terms herein. Subscriptions shall continue for successive terms unless Customer provides notice of cancellation thirty (30) days prior to the end of the then-current Subscription Term. If Customer provides timely notice of non-renewal or termination, Customer’s access to the Solution will terminate at the end of the then-current Subscription Term, and Customer shall be responsible for all accrued, unpaid Collection Event fees.

o   Termination for Cause.

A party may terminate this Agreement for cause:

§  upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such notice period, or

§  if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.

Upon any termination for cause by Customer, Digital DNA shall refund to Customer any prepaid, unused subscription fees paid to Digital DNA covering the remainder of the relevant Subscription Term. Upon any termination for cause by Customer, Digital DNA shall credit Customer for any pre-billed but unused Collection Event fees, if applicable.

o   Termination for Convenience.

Customer may terminate this Agreement for convenience with thirty (30) days advance written notice, provided Customer pays all outstanding Collection Event fees accrued up to the date of termination. Customer understands that all such prepaid Fees are non-refundable.

o   Temporary Suspension.

Digital DNA may immediately suspend Customer’s (and all Customer Users’) access to the Solution in the event that either Customer or a Customer User is engaged in, or if Digital DNA, in good faith, suspects that Customer or a Customer User is engaged in, any unauthorized conduct (including any violation of the terms of this Agreement, any applicable law or third party right). Digital DNA will contact Customer prior to or contemporaneously with such suspension. Customer agrees that Digital DNA will not be liable to Customer, any Customer User, any affiliate, or any other third party if Digital DNA exercises its suspension rights as permitted by this Section. Digital DNA shall use diligent efforts to limit suspension only to affected Customer Users or portions of the relevant Solution.

o   Return of Materials; Survival.

Upon termination of this Agreement, all access, rights, and licenses granted to Customer hereunder shall terminate, Customer will cease all use of the Solution, and each party shall, upon the disclosing party’s request, return to (or destroy) any tangible Confidential Information of the Disclosing party in its possession as of the effective date of termination. Upon expiration of the Subscription Term, Digital DNA may remove all Customer Data from the Solution, and all Customer User Accounts shall be disabled. Upon termination or expiration, Sections 1, 3.3, 5.1(i), 5.2, 5.3, 6, 7, 8, and 11 through 15 will survive and remain in effect.

9.    Confidentiality.

“Confidential Information” means any non-public data, information, and/or other material regarding the products, software, services, employees, or business of a party (and/or if either party is bound to protect the confidentiality of any third party’s information, of a third party) provided by one party (“Disclosing Party”) to the other party (“Receiving Party”) where such information is marked or otherwise communicated as being “proprietary” or “confidential” or the like, or where such information should, by its nature, be reasonably considered to be confidential and/or proprietary. Without limiting the foregoing, the relevant Solution and any performance data, benchmark results, technical information relating thereto, and Supplementary Material delivered to Customer hereunder and all Digital DNA’s pricing information shall be deemed the Confidential Information of Digital DNA. Notwithstanding the foregoing, Confidential Information shall not include information which: (t) is already known to the Receiving Party prior to disclosure by the Disclosing Party; (u) becomes publicly available without fault of the Receiving Party; (v) is rightfully obtained by the Receiving Party from a third party without restriction as to disclosure, (w) is approved for release by written authorization of the Disclosing Party; (x) is independently developed or created by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (y) is required to be disclosed by law or governmental regulation, provided that the Receiving Party provides reasonable notice to Disclosing Party of such required disclosure and reasonably cooperates with the Disclosing Party in limiting such disclosure. Except as expressly authorized herein, the Receiving Party agrees to: (aa) use the Confidential Information of the Disclosing Party only to perform its obligations hereunder (including providing the features and services associated with the normal use of the Solution, including the disclosure of information if contemplated by the normal use of the Solution) or to exercise rights granted to it hereunder or to enforce or require compliance with the terms herein; (bb) treat all Confidential Information of the Disclosing Party in the same manner as it treats its own similar Confidential Information, but in no case will the degree of care be less than reasonable care; and (cc) disclose the Disclosing Party’s Confidential Information only to those employees and contractors of the Receiving Party who have a need to know such information for the purposes of this Agreement, provided that any such employee or contractor shall be subject to obligations of non-use and confidentiality with respect to such Confidential Information at least as restrictive as the terms of this Agreement, and the Receiving Party shall remain solely liable for any non-compliance of such employee or contractor with the terms of this Agreement.

10. Security.

Digital DNA agrees to maintain administrative, physical, and technical safeguards designed to align with industry-standard frameworks such as SOC2 and ISO/IEC 27001. Digital DNA is currently optimizing its internal controls to meet these criteria and will provide Customer with updated security documentation upon request as it becomes available.. For example, Digital DNA shall during the Term 1) maintain and adhere to a security policy and educate its personnel of the requirements of the policy; 2) ensure that all Customer Data transmitted by the Solution is encrypted, and 3) that third-party hosting agents used to host the Solution on behalf of Digital DNA are compliant with relevant standards bodies and use appropriate administrative, physical, organizations and technical safeguards to protect data hosted by them.

11. Ownership.

As between the Parties, Customer shall own and retain all rights, title, and (except as expressly licensed hereunder) interest in and to Customer Data and Customer Branding Elements. As between the parties, Digital DNA and its licensors shall own and retain all rights, title, and interest in and to the Solution, including all patent rights (pending or issued), trade secrets, and 'know-how.' Customer agrees not to assert against Digital DNA any patent claims that rely on the use of, or are derived from, the Solution. All patentable inventions derived from Customer Feedback are hereby explicitly assigned to Digital DNA. Customer acknowledges that it is obtaining only a limited right to use Solution on a hosted basis and that irrespective of any use of the words “purchase,” “sale,” or like terms hereunder, no ownership rights are being conveyed to Customer. All suggestions or feedback provided by Customer (and Customer Users) to Digital DNA or its Resellers with respect to the Solution shall be Digital DNA’s property, and Customer hereby assigns the same to Digital DNA.

12. Limited Warranties; Disclaimers.

o   General.

Each party represents and warrants to the other that:

§  it has the full power to enter into this Agreement and to perform its obligations and duties hereunder;

§  this Agreement constitutes a legal, valid, and binding obligation of such party, enforceable against it; and

§  this Agreement does not contravene, violate, or conflict with any other agreement of such Party with any third party; and

§  not intentionally upload or transmit any Malicious Code to the other party or store on the Solution.

o   Solution Warranties.

Digital DNA warrants to Customer that the Solution shall perform materially in accordance with the stated specification in the Documentation. Customer must notify Digital DNA of any warranty deficiencies with the Solution within thirty (30) days of the delivery of the deficiency in order to receive any warranty remedy for such deficiency. For any breach of the foregoing warranty, Customer’s exclusive remedy shall be for Digital DNA to correct the deficiency, provided that if the correction in compliance with this warranty is not possible or practical, then Digital DNA shall allow Customer to terminate the applicable Subscription Term and receive as its sole remedy a refund of any prepaid and unused subscription Fees Customer has pre-paid for the use of the non-conforming Solution as of the date of termination.

o   Professional Services Warranties.

Digital DNA warrants to Customer that all Professional Services provided hereunder by Digital DNA shall be performed in conformance with any requirements outlined by the parties in the relevant Order or SOW. The Customer must notify Digital DNA of any warranty deficiencies for Professional Services within thirty (30) days from the performance of the deficient service in order to receive any warranty remedy. For any breach of the preceding warranty, Customer’s exclusive remedy shall be for Digital DNA to correct or re-perform such deficient Professional Services, provided that if correction or re-performance in compliance with this warranty is not possible or practical, then Customer shall be entitled to return all relevant deliverables to a refund of the applicable Fees paid to Digital DNA for such deficient Professional Services, provided all appropriate deliverables are returned and provided Customer discontinues all use of the same.

o   Restrictions.

Notwithstanding anything else and for clarity, the express warranties specified herein do not apply to Customer Data, Third Party Materials, or Supplementary Material available through the Solution, and the express warranties specified herein shall not apply if the applicable Solution, results of Professional Services, or any portion thereof:

§  has been altered, except by or on behalf of Digital DNA;

§  has not been used, installed, operated, repaired, or maintained in accordance with this Agreement and/or Documentation;

§  has been subjected to abnormal misuse, negligence, or accident;

§  is used on equipment, products, or systems not meeting specifications identified by Digital DNA in the applicable Documentation; or

§  is provided or made available free of charge or otherwise provided for evaluation or testing purposes.

Additionally, the warranties set forth herein only apply when notice of a warranty claim is provided to Digital DNA within the applicable warranty period specified herein and do not apply to any bug, defect, or error caused by or attributable to software or material not supplied by Digital DNA.

o   Disclaimers.

Digital DNA does not warrant that THE SOLUTION IS COMPLETELY SECURE OR THAT MEASURES TAKEN TO SECURE THE SOLUTION WILL NOT BE DEFEATED. Customer’s OR CUSTOMER USER’S use of the Solution will be uninterrupted or error-free, nor does Digital DNA warrant THAT THE SOLUTION WILL MEET CUSTOMER REQUIREMENTS, OR THAT ALL DEFECTS WILL BE CORRECTED, OR THAT THE SOLUTION OR THE SYSTEMS OR SERVERS THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. MORE SPECIFICALLY, DIGITAL DNA CAN NOT GUARANTEE THAT ALL USER PERMISSIONS WILL BE APPLIED IN THE MANNER INTENDED WHEN AN ERROR IN THE SYSTEM. DIGITAL DNA DOES NOT WARRANT THE RESULTS OF THE SOLUTION OR THE ACCURACY OF ANY CONTENT AVAILABLE THROUGH THE SOLUTION OR DELIVERED AS PART OF PROFESSIONAL SERVICES. DIGITAL DNA WILL NOT review Customer Data, third-party material, or supplementary material for accuracy. DIGITAL DNA DOES NOT WARRANT that it will preserve or maintain Customer Data, third-party material, or supplementary material without loss.

CUSTOMER AND CUSTOMER USERS UNDERSTAND AND AGREE THAT THEY USE, UPLOAD, DOWNLOAD OR OTHERWISE OBTAIN CUSTOMER DATA, THIRD-PARTY MATERIAL, SUPPLEMENTARY MATERIAL, OR ANY OTHER INFORMATION, MATERIAL, OR DATA THROUGH THE SOLUTION AT THEIR DISCRETION AND RISK AND THAT THEY WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO ANY DATA OR INFORMATION OR THEIR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS IN CONNECTION WITH THE SAME. EXCEPT AS WARRANTED IN THIS SECTION, THE SOLUTION AND PROFESSIONAL SERVICES AND ANY DELIVERABLES AND MATERIALS SUPPLIED AS PART OF IN CONNECTION WITH EITHER ARE PROVIDED “AS IS” AND WITHOUT ANY OTHER WARRANTY WHATSOEVER. DIGITAL DNA EXCLUDES AND DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND WHATSOEVER RELATING TO THE SAME, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER AND CUSTOMER USERS WAIVE ANY AND ALL CAUSES OF ACTION OR CLAIMS AGAINST DIGITAL DNA ARISING FROM OR RELATING TO THE OUTPUT OF OR ANY MATERIAL OR INFORMATION RECEIVED FROM THE SOLUTION OR RESULTS OF SERVICES AND ANY RELIANCE THEREON. DIGITAL DNA CANNOT AND DOES NOT PROVIDE LEGAL SERVICES AND DOES NOT WARRANT THAT CONFIDENTIALITY OR PRIVILEGE IS UNAFFECTED AS A RESULT OF THE USE OF THE SOLUTION. DIGITAL DNA IN NO WAY WARRANTS THE RESULTS OR OUTPUT THAT MAY BE OBTAINED BY THE USE OF THE SOLUTION OR THE PROFESSIONAL SERVICES OR ANY CUSTOMER DATA, THIRD-PARTY MATERIALS, OR SUPPLEMENTARY MATERIALS SUPPLIED OR DISPLAYED BY THE SOLUTION. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES, SO ASPECTS OF THE ABOVE DISCLAIMERS MAY NOT APPLY TO CUSTOMERS, PROVIDED THAT THIS SECTION SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

13. Limitation of Liability.

UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, WILL DIGITAL DNA OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, AGENTS, OR THIRD-PARTY PARTNERS, LICENSORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, RELIANCE, OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION LOSSES OR LIABILITY RESULTING FROM LOSS OF DATA, LOSS OF REVENUE, ANTICIPATED PROFITS, OR LOSS OF BUSINESS OPPORTUNITY) THAT RESULT FROM CUSTOMER OR CUSTOMER USERS’ USE OR YOUR INABILITY TO USE THE SOLUTION OR ANY INFORMATION, MATERIAL OR DATA OFFERED THOROUGH THE SOLUTION OR RESULTING FROM PROFESSIONAL SERVICES, OR ANY OTHER INTERACTIONS WITH DIGITAL DNA, EVEN IF DIGITAL DNA OR A DIGITAL DNA AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, DIGITAL DNA’S LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

IN NO EVENT WILL DIGITAL DNA’S OR ITS AFFILIATES’, CONTRACTORS’, EMPLOYEES’, AGENTS’, OR THIRD-PARTY PARTNERS’, LICENSOR’S, OR SUPPLIERS’ TOTAL LIABILITY TO THE CUSTOMER (INCLUDING TO ALL CUSTOMER USERS) FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR USE OF SOLUTION OR PROFESSIONAL SERVICES, INCLUDING WITHOUT LIMITATION R INTERACTIONS WITH OTHER USERS, (WHETHER IN CONTRACT, TORT INCLUDING NEGLIGENCE, WARRANTY, OR OTHERWISE) EXCEED THE AMOUNT PAID BY CUSTOMER TO DIGITAL DNA, IF ANY, FOR ACCESSING DIGITAL DNA SOLUTION DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DAY THE ACT OR OMISSION OCCURRED THAT GAVE RISE TO YOUR CLAIM OR FIVE HUNDRED DOLLARS, WHICHEVER IS GREATER.

CUSTOMER AND CUSTOMER USERS ACKNOWLEDGE AND AGREE THAT DIGITAL DNA HAS OFFERED ITS PRODUCTS AND SERVICES, SET ITS PRICES, AND ENTERED INTO THESE TERMS IN RELIANCE UPON THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN, THAT THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN REFLECT A REASONABLE AND FAIR ALLOCATION OF RISK BETWEEN THE PARTIES (INCLUDING THE RISK THAT A CONTRACT REMEDY MAY FAIL OF ITS ESSENTIAL PURPOSE AND CAUSE CONSEQUENTIAL LOSS), AND THAT THE DISCLAIMERS OF WARRANTY AND THE LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN CUSTOMER (INCLUDING ANY CUSTOMER USERS) AND DIGITAL DNA.

14. Indemnification; Hold Harmless.

Customer agrees to defend, indemnify and hold harmless Digital DNA and its subsidiaries, agents, managers, and other affiliated companies, and their employees, contractors, agents, officers, and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from:

o   Customer and Customer User’s use of and access to the Solution, including any Customer Data, Customer Branding Elements, or other work or material transmitted or received by Customer or Customer Users;

o   Customer or Customer Users’ unauthorized use of the Solution or any violation of any third-party right, including without limitation any right of privacy, publicity rights, or intellectual property rights;

o   Customer or Customer Users’ violation of any law, rule, or regulation of the United States or any other country;

o   any claim or damages arising from Customer Branding Elements, Customer Data, or any other data or information submitted or distributed by Customer Users via the Solution.

15. Miscellaneous.

o   Language. This Agreement, any disputes hereunder, and all services to be provided hereunder by Digital DNA to Customer (if any) shall be conducted and provided in English.

o   Storage of Customer Data. Customer understands that Digital DNA does not provide an archiving service. Digital DNA agrees only that it shall not intentionally delete any Customer Data from the Solution prior to termination of Customer’s applicable subscription unless it determines in its discretion that such data is or may be harmful to its systems or to a third party or otherwise unlawful or illegal (in which case it will notify Customer of the same). Digital DNA expressly disclaims all other obligations with respect to the storage of Customer Data.

o   Location of the Solution. As of the effective date, the Solution is controlled and operated from facilities in the United States. Digital DNA makes no representations that the Solution is appropriate or available for use in other locations. Those who access or use the Solution from other jurisdictions do so at their own volition and are entirely responsible for compliance with local law, including but not limited to export and import regulations. You may not use the Solution if you are a resident of a country embargoed by the United States or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Solution are solely directed to individuals, companies, or other entities located in the U.S. By using the Solution, you consent to have your data transferred to and processed in the United States.

o   Equitable Relief. The parties agree that a material breach of this Agreement adversely affecting Digital DNA’s or its licensors’ intellectual property rights in Solution or either party’s Confidential Information may cause irreparable injury to such party for which monetary damages would not be an adequate remedy, and the non-breaching party shall be entitled to equitable relief (without a requirement to post a bond) in addition to any remedies it may have hereunder or at law.

o   Export. The Solution is subject to the trade laws and regulations of the United States and other countries, including the Export Administration Regulations (EAR, 15 CFR Part 730 et seq.) and the sanctions programs administered by the Office of Foreign Assets Control (OFAC, 31 CFR Part 500). Customer will not import, export, re-export, transfer, or otherwise use the Solution in violation of these laws and regulations, including by engaging in any unauthorized dealing involving

§  a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan, and Syria);

§  a party included on any restricted person list, such as the OFAC Specially Designated Nationals List, the Commerce Department’s Denied Persons List or Entity List; or

§  the design, development, manufacture, or production of nuclear, missile, chemical, or biological weapons.

By using the Solution and/or Third Party Material provided in connection with the same, Customer represents and warrants that Customer Users and Customer are not located in any such country or on any such list. Customer agrees that it will not engage in activity that would cause Digital DNA to be in violation of these laws and regulations and will indemnify Digital DNA for any fines, penalties, or other liabilities incurred by Digital DNA for Customer’s or Customer User's failure to comply with this provision.

o   U.S. Government End User Purchasers. All components of the Solution (including the Documentation) qualify as “commercial items,” as that term is defined in Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this Agreement may be incorporated, Customer may provide to the Government end user or, if this Agreement is direct, the Government end user will acquire access to the Solution (including the Documentation) with only those rights set forth in this Agreement. Use of the Solution (including Documentation) constitutes agreement by the Government that the Solution (including Documentation) is “commercial computer software” and “commercial computer software documentation,” as relevant, and constitutes acceptance of the rights and restrictions herein

o   Force Majeure. Neither party shall be liable to the other for any delay or failure to perform which is due to causes beyond the reasonable control of such party, including, but not limited to, acts of God, acts of the public enemy, acts of any governmental authority in its sovereign capacity, fires, floods, hurricanes, earthquakes, epidemics, quarantine restrictions, strikes or other labor disputes and freight embargoes.

o   Access to Your Account and Information. You acknowledge and agree that Digital DNA may access, preserve and disclose your Information and Customer User Account (including the administrator account) information if required to do so by law or in a good faith belief that such access preservation or disclosure is reasonably necessary to:

§  comply with legal process;

§  enforce these Terms;

§  respond to claims that any Information violates the rights of third parties;

§  respond to Customer’s requests for customer service or to help Customer troubleshoot, maintain, access, or use the Solution; or

§  protect the rights, property, or personal safety of Digital DNA, its users, or the public.

o   Privacy. To the extent any personally identifiable data relevant to Customer or Customer Users are obtained by Digital DNA or communicated to Digital DNA by Customer in connection with this Agreement, Digital DNA agrees that it (and/or its contractors) will use or disclose any such personally identifiable data received (if any is ever received) only to implement and deliver the features and services associated with the regular use of the Solution and to perform its obligations hereunder. Please read our Privacy Policy carefully for details relating to the collection, use, and disclosure of your personal information. The Privacy Policy is incorporated into these Terms by this reference.

o   Modification of the Agreement for all Digital DNA Customers. AT ITS SOLE DISCRETION, Digital DNA reserves the right to change, modify, add, or remove portions of the Agreement at any time with notice, provided such change is applied to all its customers who have accented to these terms. Customer agrees to review notifications of any such changes when delivered and agrees that its (and the Customer User’s) continued use of the Solution after the notification constitutes their binding acceptance of such changes. If any such revision is unacceptable to Customer (or to any Customer User), then the only remedy is to terminate the relevant Customer User Accounts and to cease using the Solution.

o   Notice. Any notice provided hereunder shall be deemed sufficiently given when sent by certified mail (receipt requested), courier, email, posting on the Solution, or hand delivery to the other party. Such notices shall be deemed effective on the first business day following the day of such delivery. With respect to emails, notice will be deemed given twenty-four hours after the email is sent unless Digital DNA is notified that the email address is invalid. With respect to notice by mail, courier, or hand delivery, such notice will be given to the address provided as part of the Order (or any updated address) and will be deemed given one business day after delivery. Notice posted on the Solution is deemed given five days following the initial posting.

o   Waiver. The failure of either party to enforce any rights granted hereunder or to take action against the other party in the event of any breach hereunder shall not be deemed a waiver by that party as to subsequent enforcement of rights or subsequent actions in the event of future breaches.

o   Choice of Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without reference to or application of choice of law rules or principles. The sole and exclusive jurisdiction and venue for actions arising under this Agreement shall be the State and Federal courts in New York, New York; the parties hereby agree to service of process in accordance with the rules of such courts. Notwithstanding any choice of law provision or otherwise, the Uniform Computer Information Transactions Act (UCITA) and the United Nations Convention on the International Sale of Goods shall not apply.

o   Illegality. Should any term of this Agreement be declared invalid, void, or unenforceable by any court of competent jurisdiction, that provision shall be modified, limited, or eliminated to the minimum extent necessary to effectuate the original intent, and such declaration shall have no effect on the remaining terms hereof, which shall continue in full force and effect. Either party may terminate this Agreement to the extent it is determined that use or access to Solution as contemplated herein is illegal, and upon any such termination, Digital DNA will refund to Customer any unused, prepaid subscription fees paid to Digital DNA for the relevant Subscription Term.

o   Assignment. This Agreement may not be assigned or transferred without the other party’s prior written consent, provided each party expressly reserves the right to assign this Agreement to a successor in the interest of all or substantially all of its business or assets who agrees in writing to be bound by this Agreement. Any action or conduct in violation of the foregoing shall be void and without effect. All validly assigned rights and obligations of the parties hereunder shall be binding upon and inure to the benefit of and be enforceable by and against the successors and permitted assigns.

o   Headings. The heading references herein are for convenience purposes only, do not constitute a part of this Agreement, and will not be deemed to limit or affect any of the provisions hereof.

o   Entire Agreement; Modifications. This Agreement constitutes the entire agreement between the parties with respect to the Solution and other Professional Services or products delivered by Digital DNA hereunder. Except as expressly provided herein, this Agreement supersedes and cancels all previous written and previous or contemporaneous oral communications, proposals, representations, and agreements relating to the subject matter contained herein. This Agreement prevails over any pre-printed terms or other conflicting or additional terms of any purchase order, ordering document, acknowledgment or confirmation, or other document issued by Customer, even if signed and returned. Except as expressly provided herein, this Agreement may be amended, or any term or condition set forth herein waived, only by a writing executed by both parties.

o   Disclosures. Digital DNA offers services hereunder at 420 Lexington Ave, New York, NY 10170 and email: support@digitaldnagroup.com.  If Customer is a New York resident, Customer may have this same information emailed to Customer by sending a letter to the foregoing address with Customer’s email address and a request for this information.

o   Claims. CUSTOMER AGREES THAT ANY CAUSE OF ACTION ARISING UNDER THIS AGREEMENT THAT CUSTOMER MAY BRING AGAINST DIGITAL DNA IN CONNECTION WITH THE SOLUTION OR ITS USE OF THE SOLUTION MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.

Exhibit A

Support and Maintenance Services

1. Service Levels.

Subject to the terms herein, Digital DNA agrees to (a) use commercially reasonable efforts to make the Solution available 24 hours a day, seven days a week, except for:

• planned downtime (of which Digital DNA shall give at least 8 hours notice via the Digital DNA Support Portal and/or notification within the service and which Digital DNA shall schedule to the extent practicable during the hours from 6:00 p.m. Pacific time to 3:00 a.m. Pacific time);

• any unavailability caused by circumstances beyond the Digital DNA’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or Internet service provider failures or delays, or denial of service attacks, or limitations/exclusions described below.

2. Standard Support and Maintenance Services.

Subject to the terms herein, Digital DNA agrees to provide the following “Support and Maintenance” services:

• Maintenance. Digital DNA will provide Customer with all updates, upgrades, maintenance releases, and bug fixes to the Solution, to the extent created and generally released to other Digital DNA customers who have purchased the relevant subscription to the Solution.

• Digital DNA Support Portal. Digital DNA provides support through its online web-based support portal, made available to Customer Users during the Subscription Term. Through this Support Portal, customers may submit support issues, receive guidance and troubleshooting regarding the usage of the Solution, obtain online training, and view an online knowledge base of information and solutions that supplements the Documentation.

• Email Support to Designated Support Contacts. Digital DNA will provide Customer’s “Designated Support Contacts” the following support: (a) email support during support hours identified below. As used herein, “Designated Support Contacts” shall be comprised of up to five (5) individuals designated by Customer. Customer may change Designated Contacts within Customer’s organization at any time by providing an email or written notification to Digital DNA of such change.

• Email Support Coverage Hours. Email Technical Support is available from 9:00 a.m. ET to 5:00 p.m. EST on business days (Monday through Friday, excluding U.S. public holidays).

3. Issue Reporting.

Customer Designated Support Contacts shall be responsible for reporting any issues with the Solution through the Digital DNA case tracking system available in the Digital DNA Support Portal. Customer will reasonably cooperate with Digital DNA in its bug investigation by phone, email, and through Digital DNA’s case tracking system. Digital DNA will provide Customer with a trouble ticket number that Customer will use to track the status of any confirmed error or malfunction in the Solution (i.e., any confirmed failure for the Solution to meet the Digital DNA specifications described in the Documentation) (“Confirmed Error”). Digital DNA reserves the right to close the trouble ticket without further responsibility if Customer does not provide appropriate feedback to Digital DNA within thirty (30) days of receiving a patch or workaround or if Customer fails to respond to a request for additional information.

4. Limitations/Exclusions.

Digital DNA shall be responsible only for correcting Confirmed Errors in the Solution. Digital DNA’s support obligations exclude any errors or incidents pertaining to the following:

• third-party data and integrations or linkages or technical interfaces with third-party data providers that are not in Digital DNA control;

• changes to internal client security policies that adversely affect the use of the Solution;

• browser or operating system changes outside of Digital DNA’s control;

• incorporation or appendix of a feature, program, or device to the Solution or any part thereof;

• any non-conformance caused by unauthorized misuse, alteration, modification, or enhancement of the Solution; or

• use of the Solution not in accordance with the Documentation, or violation of the terms of use identified in the Agreement, or use other than for the specific purpose for which the Solution was designed;

• failures due to Customer, Customer Affiliates or Customer Users, or their respective network, connections, infrastructure, equipment or hardware or, including failures due to

• abuse or misuse of Solution (or any component thereof) or

• use or maintenance of the Solution (or any component thereof) in a manner not conforming to the requirements described in the Documentation or the Agreement, or

• use of an unsupported platform, equipment or hardware or devices or

• modifications or alterations to the Solution or any component thereof by Customer or Customer Users, or

• Customer’s failure to implement updates or upgrades (where relevant) which are delivered to Customer.