Terms of Service

Last Updated: May 1, 2020

PLEASE READ THESE TERMS OF SERVICE (THESE “TERMS OF SERVICE”) BEFORE USING ONTIC’S PLATFORM AND SERVICES. BY ACCESSING OR USING ONTIC’S SERVICES OFFERING OR BY CLICKING ON THE “I ACCEPT” BUTTON, YOU (“CUSTOMER”) SIGNIFY ACCEPTANCE OF AND AGREE TO THESE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THESE TERMS OF SERVICE, DO NOT ACCESS OR USE THE ONTIC SERVICES. IF THE PARTIES HAVE A FULLY-EXECUTED AGREEMENT THAT EXPRESSLY GOVERNS ORDERS FOR ONTIC’S SERVICES, SUCH AGREEMENT SHALL SUPERSEDE THESE TERMS OF SERVICE.

SUBJECT TO THESE TERMS OF SERVICE, INCLUDING ALL PAYMENT OBLIGATIONS, CUSTOMER MAY ACCESS THE ONTIC SERVICES SOLELY FOR CUSTOMER’S INTERNAL BUSINESS FOR THE TERM SET FORTH IN THE ORDER FORM EXECUTED BY THE PARTIES (“ORDER FORM” or “ORDER”).  WE WILL CONTACT YOU ABOUT EXECUTING AN ORDER FORM UPON YOUR ACCEPTANCE OF THESE TERMS OF SERVICE.  THESE TERMS OF SERVICE AND THE ORDER, IF EXECUTED, WILL CONSTITUTE THE ENTIRE AGREEMENT OF THE PARTIES AND, TOGETHER, ARE REFERRED TO AS THE TERMS OF SERVICE.  HOWEVER, IF THE PARTIES DO NOT EXECUTE AN ORDER FORM WITHIN 60 DAYS AFTER THE ACCEPTANCE OF THESE TERMS OF SERVICE, THEN THESE TERMS OF SERVICE SHALL AUTOMATICALLY TERMINATE AND BE OF NO FURTHER FORCE AND EFFECT.

These Terms of Service are entered by and between Customer and Ontic Technologies, Inc., a Delaware corporation (“Ontic”), with its principal place of business at 1005 W. 38th St., Suite 300, Austin, Texas 78705, to be effective as of the date of acceptance by Customer.  Ontic and Customer agree that the following terms and conditions will apply to the services provided under these Terms of Service and all Orders executed pursuant to these Terms of Service:

1.       DEFINITIONS

Affiliate(s)” means any entity which is directly or indirectly controlling, controlled by, or under common control with a party to this Agreement.

Customer Client” means a third party that is a client of Customer and has a written contract with Customer.

“Customer Content” means any data or information entered into the Platform by a Customer User, or by Customer on behalf of a Customer client and has a written contract with Customer to use the Services.

“Customer User(s)” means an individual located in the United States who is authorized by Customer to use the Platform and receive the Services through an account created by Customer. Customer Users may include only Customer’s employees and contractors and no other third parties.

“Documentation” means Ontic materials made available to Customer through the support portal to assist Customer Users’ use of the Platform, as such materials may be updated during the Term.

“Force Majeure Event” means circumstances beyond a party’s reasonable control, including but not limited to, acts of God, fire, labor difficulties, terrorism, failure of third party data providers, networks, servers or service providers, hosted service or Internet disruptions involving hardware, software or systems not within such party’s reasonable control, power outages, or governmental demands or restrictions.

Intellectual Property” means all copyrights (including software programs and related documentation), user-interface patterns and conventions, templates, mask work rights, inventions, ideas, improvements, enhancements, concepts, designs and discoveries (whether patentable or not), trademarks, service marks, trade names, moral rights and trade secrets and all reissues, divisions, continuations, continuations-in-part, renewals, enhancements, derivatives and extensions of the foregoing.

Intellectual Property Rights” means any and all common law, statutory, legal, equitable and contractual rights and associated rights of action associated with the subject Intellectual Property, including, without limitation, the right to sue for, settle or release claims with respect to any past, present of future wrongful use or infringement of the subject Intellectual Property.  Such Intellectual Property Rights include, without limitation, rights under trademarks and service marks, rights under trademark or service mark registrations, rights under trademark or service mark applications for registration, patent rights, rights under patent applications, common law copyrights, rights under copyright applications for registration, rights under copyright registrations, trade secrets, moral rights for all purposes and uses, or other similar property rights, whether protected under the laws of the United States of America, or some other jurisdiction.

 “Ontic Customer User Account” means a Customer User’s password restricted account to access and use the Platform. Sharing of the Ontic Customer User Account with more than one person is strictly forbidden.

“Order Form” or “Order” means a written order executed by the parties that identifies the relevant Platform information for the Customer implementation, such as, features purchased, term, renewal term and associated fees.

“Platform” means Ontic’s proprietary, multi-tenant platform (including any related APIs), which is accessed by Customer Users via the Internet, as specified in the applicable Order Form and including any Updates.

“Professional Services” means development work and other related professional services that Customer elects to receive as described in an executed SOW.

SLA” means Ontic’s Service Level Agreement (SLA) attached hereto as Exhibit A.

“SOW” (Statement of Work) means a written Statement of Work executed by the parties that identifies the Professional Services ordered by Customer, including the description, deliverables and associated fees for such Professional Services.

“Services” means Ontic’s software as a service (SaaS) and the reports, alerts and/or other information produced by the Platform for the Customer Users.

“Updates” means modifications, “bug” fixes and minor changes made by Ontic to the Platform that Ontic makes generally available to its customers at no additional fee(s).  Updates, however, exclude new releases, features, functions and capabilities that are offered for an additional fee.

2.       LICENSE GRANT; INTELLECTUAL PROPERTY; SECURITY

2.1        Subject to Customer’s compliance with the terms and conditions of this Agreement, Ontic hereby grants to Customer the non-exclusive, non-transferable and non-sublicensable (except as expressly provided in this Agreement) right to use the Platform solely to provide the Services to the Customer Clients for such Customer Client’s own internal use; provided, however, that the Customer Client(s) shall not have direct access to the Platform (and related portals) and all Customer Content shall be entered into the Platform by Customer (on behalf of the applicable Customer Client).   Customer may not provide the Services to more than the maximum number of Customer Client(s) specified in the applicable Order, and Customer Clients are strictly prohibited from reselling or otherwise licensing the Services (or any data or Service Outputs (as defined below) pertaining to the Services) to any third party.

2.2        Ontic owns and will own and have the sole and exclusive right, title and ownership in and to (i) the Platform, Documentation, the Services, and the alerts, reports and other outputs from the Services (the “Service Outputs”), (ii) all Intellectual Property associated with the Platform (including, without limitation, the API Technology (as defined below)), the Documentation, the Services, and the Service Outputs, (iii) all Intellectual Property developed pursuant to this Agreement or any SOW, and (iv) all Intellectual Property Rights related to any of the foregoing (collectively, the “Ontic IP”).  Notwithstanding the foregoing, Ontic acknowledges that Customer owns the Customer Content and Customer’s trademarks or service marks.

2.3        Ontic and its licensors reserve all rights not expressly granted to Customer in this Agreement, and nothing in this Agreement or the relationship between Ontic and Customer shall be deemed to grant any implied right or license.  Except for the license rights expressly granted herein, this Agreement grants no additional or express license, right or interest in the Ontic IP.

2.4        Customer and Client Customer grants to Ontic during the term of this Agreement a royalty-free, non-exclusive, non-transferable, worldwide right and license: (i) to copy, cache, store, reproduce, perform, display, use, distribute, transmit and generally make available the Customer Content in electronic form via the Internet, through wireless communications services and social media through the Platform in order to provide the Services to Customer and the Customer Users in accordance with, and as contemplated by, this Agreement; and (ii) to access Customer’s accounts through the Platform in order to provide the Services as contemplated hereby.

2.5        Ontic has the worldwide, perpetual, irrevocable right and license to use aggregated, anonymized, and statistical data derived from the operation and use of the Ontic Services (“Statistical Data”) for business and/or operating purposes, provided that Ontic does not share with any third party Statistical Data which reveals the identity of Customer, Customer Users, or Customer’s Confidential Information except as permitted pursuant to Section 8.

2.6        Ontic will provide the Ontic Services in accordance with the SLA.

2.7        Customer shall not disassemble, reverse engineer, decrypt, decompile, create derivative works from, modify, store, render, archive, retain, scrape or translate the Ontic IP or any portion or component thereof, or recreate or attempt to recreate the Ontic IP, in whole or in part by reference to the Ontic IP, or perform any process intended to determine the source code for the Platform (or any component thereof), except to the extent that the foregoing restriction is prohibited by applicable Laws (as defined below).  For clarity’s sake, Customer acknowledges that Customer shall not have any access to the data or information used to produce the Services.  Except as permitted pursuant to the terms of this Agreement, Customer shall not sublicense, distribute, deliver, disclose or otherwise provide to a third party the Ontic IP or any portion or component thereof, and any unauthorized attempt to assign, sublicense or grant other rights to the Ontic IP shall be immediately and automatically void.

2.8        Customer acknowledges that information available through the Services includes personally identifiable information (“PII”) and it is Customer’s obligation to keep all such PII secure.  Accordingly, Customer shall (a) restrict access to the Services to those Customer Users who have a need to know as part of their official duties, (b) ensure that no Customer Users shall (i) obtain and/or use information from the Services for personal reasons, or (ii) not transfer any information received through the Services to any party except as permitted or required by this Agreement, a SOW or required by Law, (c) immediately notify Ontic to deactivate the user identification number of any Customer User who no longer has a need to know or any terminated Customer User on or prior to the date of termination, (d) keep all user identification numbers confidential and prohibit the sharing of user identification or similar numbers, and (e) unless required by law, purge all information received through the Services within 90 days of receipt or expiration of Customer’s retention period required by Law (as defined below).

2.9        Customer shall, and shall use commercially reasonable efforts to cause Customer Client and their respective agents and representatives to, keep all PII confidential and may use and disclose PII only as necessary to carry out its obligations and responsibilities set forth herein.  Customer will, and will require Customer Client and their respective agents and representatives to, implement and maintain an appropriate security program, firewall and other measures for the PII to (a) ensure the security and confidentiality of PII, (b) protect against any threats or hazards to the security or integrity of PII, and (c) prevent unauthorized access to or use of PII.  Customer shall notify Ontic in writing within 48 hours if it becomes aware of any disclosure, dissemination or use of any PII by Customer or its agents in breach of this Agreement (a “Security Incident”).  From time to time, upon at least five (5) days’ prior written notice, Ontic shall have the right to review, at Ontic’s expense, Customer’s compliance with the foregoing security requirements.  Customer shall fully cooperate with Ontic and any requests in conjunction with such review including, but not limited to, requests to correct any deficiencies discovered within a period of time that is mutually agreed upon and/or to suspend any further transmission of Services until such deficiencies are corrected.  Customer’s obligation to comply with the provisions of this Section, shall, in no event, be deemed contingent upon, or otherwise affected by, Ontic’s rights in this Section.

3.       TERM AND TERMINATION

3.1        The term of this Agreement will begin on the Effective Date and continue until expiration or termination of all Order Forms and/or SOWs (the “Term”).  Each Order Form and SOW will have its own term (or renewal term, if any) as stated in such document.

3.2        Either party may terminate this Agreement and all Order Forms and SOWs by providing the other party written notice in the event that (i) the other party is in material breach of this Agreement, any Order Form and/or any SOW, which has not been cured within thirty (30) days following receipt of written notice of such breach, or (ii) 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.

3.3        Upon expiration or termination of this Agreement:  (i) all rights to use the Platform and the Services shall immediately cease and the provision of Professional Services (if any) shall immediately end; (ii) within thirty (30) days, each party will return or destroy at the disclosing party’s request the other party’s Confidential Information; and (iii) Sections 2.7 – 2.9, inclusive, and 6 – 10 shall survive the expiration or termination of this Agreement, as well as such other provisions that by their nature are intended to survive expiration or termination of the Agreement.

3.4         For a time period of thirty (30) days after the termination or expiration of the Agreement (other than a termination by Ontic under Section 3.2(i) above), Customer may send Ontic a written notice requesting that Ontic extract all then available Customer Content from the Platform, which extraction will be addressed as soon as is reasonably practicable after receiving such request. Both parties will agree to a mutually acceptable secure transfer methodology for the Customer Content, which is typically using an SFTP for the transfer. If Customer does not send a written request within the thirty (30) day time period, Ontic shall have no obligation to maintain and/or return any Customer Content.  Any reasonable expenses incurred by Ontic as a result of this extraction and transfer shall be the responsibility of Customer.

4.       FEES AND PAYMENT

4.1        Customer shall pay Ontic all fees set forth in this Agreement and each applicable Order Form and/or SOW (collectively, “Fees”) within thirty (30) days of the invoice date. Customer may withhold payment of any Fees that are the subject of a good faith dispute of which Customer has provided Ontic written notice within five (5) business days of invoice receipt (“Disputed Fees”); provided that all Fees which are not Disputed Fees shall be timely paid, and the Disputed Fees shall be paid within ten (10) days of resolution of the dispute.  Unless stated otherwise in an applicable Order Form and/or SOW, all Fees are denominated and payable in United States Dollars.

4.2        All Fees set forth in an Order Form are payable in advance. Except as may be expressly stated in this Agreement, all Fees are non-cancelable, non-refundable and are based on the Services purchased and not based on usage. Customer shall reimburse Ontic for all reasonable out-of-pocket expenses incurred in performing the Services as described in the applicable Order Form and/or SOW upon the submission to Customer of applicable receipts or other documentation.

4.3        Ontic reserves the right to charge Customer interest at the rate of the lesser of 1.5% per month, or, the maximum rate permitted by Law on any Fees not received by Ontic within fifteen (15) days of the payment due date.  Additionally, in the event any Fees or expenses are more than thirty (30) days overdue, Ontic may (a) suspend its performance of the Services, and (b) require full payment before Ontic resumes performance.  If any collection efforts are required, Customer shall be liable for, and agrees to pay, all costs of collection, including, without limitation, attorneys’ fees, costs and expenses.

4.4        All Fees exclude taxes and Customer will be solely responsible for, and agrees to pay, any applicable federal, state and local taxes charged, levied or assessed arising from this Agreement in a timely manner, other than those income taxes based on Ontic’s net income.  If Customer is tax-exempt, Customer shall provide Ontic with its tax-exemption number and certificate within five (5) business days after the Effective Date. Customer shall be responsible for any liability or expense incurred by Ontic as a result of Customer’s failure or delay in paying taxes due or if Customer’s claimed tax exemption is rejected. If Customer is legally required to withhold tax from its payment of Fees to Ontic, Customer agrees to gross up all Fees that are subject to such withholding tax, such that the net payment received by Ontic is the full originally stated amount of such Fees.

5.       REPRESENTATIONS AND WARRANTIES; COVENANTS; AUDITS

5.1        Customer represents and warrants that Customer’s use of the Services shall be for only legitimate Use, and Customer shall not use the Services for advertising or marketing purposes or resell (or broker) the Services to any third party (except as contemplated by this Agreement).  Customer shall not access the Services from an Internet Protocol address located outside the United States or its territories.    Customer shall not use the Services (or any information contained therein) to create a competing product nor remove or obscure the copyright notice or other notices contained on materials accessed through the Services.  Customer shall not use the Services as a factor in establishing any third party’s eligibility for credit or insurance to be used primarily for personal, family or household purposes, employment purposes, a government license or benefit, or for any other purpose governed by the Fair Credit Reporting Act, 15 U.S.C. Section 1681, et seq. (“FCRA”), as amended.

5.2        Customer represents and warrants to Ontic that the Customer Content shall not (i) contain or cause to be placed on Ontic’s (or any other third party’s) Platform or systems any Trojan horses, worms, viruses or programming routines intended to interfere, damage, corrupt, surreptitiously intercept, expropriate or otherwise adversely affect any computer software, hardware or network, system, data or personal information; (ii) violate any applicable local, state or federal law, rule or regulation, including privacy laws and privacy standards (collectively, “Laws”); (iii) infringe or violate any third party rights; or (iv) contain any health, medical, financial, credit card or other payment information, or (v) contain any information of any person under the age of 13. Customer Content that does not comply with clauses (i) – (v) above is referred to as “Prohibited Content.” Customer further represents and warrants that it has all requisite consent, authority and approval to enter the Customer Content into the Platform on behalf of the Customer Client.  Customer is responsible for reviewing and approving all Customer Content created or entered through or in its Ontic Account. Ontic does not pre-screen Customer Content; however, Ontic has the right in its sole discretion, but not the obligation, to remove Prohibited Content from, or refuse to process any Prohibited Content on, the Platform and to make it unavailable through the Platform. In addition, Ontic may terminate or suspend use by any Customer User that created or entered or processed such Prohibited Content.

5.3        Customer represents and warrants to Ontic that (i) Customer shall comply with the Twitter Terms of Service found at https://twitter.com/tos and the YouTube Terms of Service found at https://www.youtube.com/t/terms, each as may be updated from time to time, and (ii) Customer has all the right, title, permissions and interest in the Customer Content to make it available to Ontic’s data suppliers for processing as contemplated by this Agreement.

5.4        Each party represents and warrants to the other that it has the right and authority to enter into and perform its obligations under this Agreement and that such party will comply with all applicable Laws in connection with its performance under this Agreement.

5.5        Ontic warrants that during the Term, when used by Customer as expressly permitted hereunder, the Platform 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 or SOW.

5.6        Should Ontic suspect abuse or any fraudulent and/or unlawful activity, Ontic will have the right to review Customer’s (and its agents’) use of the Services and Customer’s records, processes and procedures relating to the use of the Services to assure compliance with the terms of this Agreement, as may be amended from time to time, and any applicable Law.   Customer will be responsible for assuring full cooperation with Ontic in connection with such review(s) and will provide Ontic or obtain for Ontic access to such properties, records and personnel during normal business hours as Ontic may reasonably require for such purpose.

6.       INDEMNIFICATION

6.1        Ontic shall indemnify, defend and hold harmless Customer and its officers, directors, employees and stockholders (the “Customer Parties”) from and against any  damages, penalties, and fines awarded, levied or paid in settlement (“Losses”) of  a claim, suit, action or proceeding brought by a third party (a “Claim”) against any Customer Party to the extent the Claim arises out of or resulting from: (a) Ontic’s failure to comply with any applicable Laws, (b) the gross negligence or willful misconduct of Ontic, or (c) a Claim that the Services as and when furnished by Ontic directly infringe any valid and enforceable United States patent, trademark, trade secret, copyright, service mark or license rights of that third party, provided that Ontic may, at its election (i) secure a right or license to allow Customer to continue using the Services, (ii) provide other data or require use of the Services in such a way that avoids the claim, (iii) modify the Services or use to the extent minimally required to avoid the claim, or, if none of the foregoing is available on a commercially reasonable basis, then (iv) terminate the particular feature of the Services that is the result of the claim.  Notwithstanding the foregoing, the infringement indemnification in subsection (c) shall not be provided by Ontic: (I) if the Service was used in breach of this Agreement, (II) if the Service is altered by a party other than Ontic, if the infringement claim could have been avoided by using the unaltered version of the Services, or (III) to the extent the claim is based on a product or service not provided by Ontic or is based on the combination of a product or service not provided by Ontic.

6.2        Customer shall indemnify, defend and hold harmless Ontic and its officers, directors, employees and stockholders  (the “Ontic Parties”) from and against any Losses incurred by any Ontic Party to the extent the Claim arises out of or resulting from: (a) any breach of Customer’s obligations or representations, warranties or covenants under this Agreement, (b) the gross negligence or willful misconduct of Customer, or (c) Customer’s failure to comply with any applicable Laws.

6.3        In order for a party seeking indemnification under this Agreement (the “Indemnified Party”) to be entitled to any such indemnification, the Indemnified Party must provide prompt written notice of the Claim to the party obligated to provide such indemnification (the “Indemnifying Party”).  Such notice shall be no less than thirty (30) calendar days from the date the Indemnified Party knew or reasonably should have known of the Claim.  After receipt of such notice, the Indemnifying Party shall have the right to assume sole control over the defense, compromise or settlement of the Claim at its expense; provided, however, that the Indemnifying Party shall not consent to the entry of any judgment or enter into any settlement that provides for injunctive relief or that does not unconditionally release the Indemnified Party, without the written consent of the Indemnified Party.  The Indemnified Party may, at its sole option, and at its own expense, engage separate counsel to participate in (but not control) the defense, compromise or settlement of the Claim.  The Indemnified Party shall provide to the Indemnifying Party all information, assistance and authority reasonably requested in order to evaluate the Claim and effect any defense, compromise or settlement thereof.  If the Indemnifying Party chooses not to assume the defense of the Claim as provided herein, the Indemnified Party may defend, compromise or settle the Claim in any manner it reasonably deems appropriate, provided that the Indemnifying Party shall remain responsible for paying the Indemnified Party’s reasonable legal fees and expenses incurred in defending, compromising or settling the Claim.

6.4        THIS SECTION STATES EACH PARTY’S ENTIRE LIABILITY TO THE OTHER AND EACH PARTY’S SOLE REMEDY FOR ANY THIRD PARTY CLAIM DESCRIBED IN THIS SECTION.

7.       LIMITATIONS OF LIABILITY

7.1        EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH ABOVE, ONTIC MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, UNDER THIS AGREEMENT.  ONTIC FURTHER DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED WARRANTIES REGARDING THE PLATFORM, THE SERVICES OR ANY DATA OR INFORMATION CONTAINED THEREIN, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF ACCURACY, VALIDITY, OR COMPLETENESS OF THE SERVICES OR THE RELATED DATA OR INFORMATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY REGARDING CUSTOMER’S USE OF A SERVICE IN AN EFFORT TO COMPLY WITH LAWS.

7.2        NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL ONTIC BE LIABLE TO THE CUSTOMER, UNDER ANY LEGAL OR EQUITABLE THEORY, FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES OF ANY KIND, INCLUDING DAMAGES TO BUSINESS REPUTATION, DAMAGES ARISING FROM LOSS OF BUSINESS WITH THIRD PARTIES, LOST PROFITS OR LOST SALES, ARISING OUT OF, UNDER OR RELATING TO THIS AGREEMENT, WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES.

7.3        NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, ONTIC’S AGGREGATE LIABILITY TO CUSTOMER AND/OR ITS AFFILIATES FOR DAMAGES (A) CONCERNING THE PERFORMANCE OR NON-PERFORMANCE BY ONTIC OF ITS OBLIGATIONS HEREUNDER, OR (B) IN ANY WAY RELATED TO OR ARISING OUT OF OR IN CONNECTION WITH THE SUBJECT MATTER OF THIS AGEEMENT (INCLUDING THE PROVISION OF THE SERVICES, AND INCLUDING PURSUANT TO ONTIC’S INDEMNIFICATION OBLIGATIONS SET FORTH UNDER THIS AGREEMENT), REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED ON CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE FEES PAID BY CUSTOMER TO ONTIC DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM AROSE.   CUSTOMER COVENANTS THAT CUSTOMER WILL NOT SUE ONTIC FOR ANY AMOUNT GREATER THAN SUCH AMOUNT.

8.       CONFIDENTIALITY

8.1        As used in this Agreement, “Confidential Information” means: (i) business or technical information, including product plans, platforms and platform designs, source code, marketing plans, business opportunities, personnel, research, development or know-how (all of the foregoing as they relate to the Ontic Services, including the Platform (current or planned), are Ontic’s Confidential Information, and all of the foregoing as they relate to Customer’s business, are Customer’s Confidential Information); and (ii) information designated by the disclosing party as “confidential” or “proprietary” or which, under the circumstances taken as a whole, would reasonably be deemed to be confidential. Confidential Information includes information disclosed prior to or during the Term of this Agreement. Confidential Information shall not include information which: (i) is or becomes generally available to the public other than as a result of wrongful disclosure by the receiving party; (ii) is or becomes available to the receiving party on a non-confidential basis from a third party that rightfully possesses the Confidential Information and has the legal right to make such disclosure; or (iii) is developed independently by the receiving party without use of any of disclosing party’s Confidential Information and by persons without access to such Confidential Information.

8.2        Customer and Ontic each agree not to use any Confidential Information of the other party for any purpose other than as necessary to perform its obligations under this Agreement.  During and after the Term, neither receiving party will disclose any Confidential Information of the disclosing party to any third party without the prior written consent of the disclosing party, except as may be required by Laws (provided that the party obligated to make the disclosure shall give the other party advance notice of such requirement to the extent legally permitted). Each receiving party shall be responsible for compliance with this Section and applicable provisions of this Agreement by its employees and agents (including any contractors or consultants) , and shall obtain the agreement by each employee and agents to keep the Confidential Information of the disclosing party confidential and to use it solely as required for the performance of the receiving party’s obligations hereunder. For purposes of clarity, Customer may publicly disclose the fact that it is using the Ontic Services, but all details about the uses, functionalities or other aspects of the Ontic Services (including screenshots and specific features of the Platform) are Confidential Information of Ontic and may not be disclosed.

8.3        For avoidance of doubt, the Ontic IP shall include, and Customer may only use (and may not grant a license or sublicense to use to any third party) any of Ontic’s APIs and mechanisms for secure API calls or related Platform services and technology, including without limitation the API interface and specifications (the API Technology”), for the sole purpose of allowing Ontic to deliver the Services to the Customer Users in accordance with the terms and conditions of this Agreement.  Customer agrees that the API Technology is owned by Ontic and is deemed Confidential Information and cannot be repurposed or resold by Customer for use by Customer or any third party in any way without the prior written consent of Ontic.

9.       GOVERNING LAW AND VENUE

This Agreement is governed by the laws of the State of Texas, without reference to conflict of law principles. The parties irrevocably consent to the exclusive jurisdiction of the state or federal courts located in Travis County, Texas, over any suit, action or proceeding arising out of or relating to this Agreement or the relationship of the parties contemplated hereby. The Prevailing Party in any legal proceeding based on or arising from or in connection with this Agreement may recover reasonable attorneys’ fees, investigation costs, and other costs incurred in connection with such legal proceeding from the party that is not the Prevailing Party, in addition to any other relief to which such Prevailing Party is entitled.  The reasonableness of such costs and attorneys’ fees shall be determined by the court and not the jury.  As used herein, the term “Prevailing Party” means that the court finds and/or declares that the applicable party is the prevailing party, whether or not that party obtains monetary, declaratory, injunctive, equitable or nominal relief.  With respect to any monetary claim, no award of damages shall be necessary in order for a party to be found by the court to have prevailed.  With respect to any non-monetary claim, no equitable relief shall be necessary in order for a party to be found by the court to have prevailed.  This subsection shall survive the expiration or termination of this Agreement.

10.    MISCELLANEOUS

10.1     This Agreement together with each Order Form and/or SOW is the entire agreement between the parties relating to this subject matter, and supersedes (i) any pre-printed terms on a purchase order, which shall have no effect, and (ii) all prior or contemporaneous understandings of the parties related thereto, including any separate non-disclosure agreement between the parties relating to this subject matter as it relates to confidential information disclosed after the date of and pursuant to this Agreement. This Agreement, any Order Form and SOW may be amended or any right waived only in writing signed by the parties.

10.2     Neither party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to a Force Majeure Event.

10.3     Each party acknowledges and agrees that any breach of this Agreement with respect to the other party’s Intellectual Property Rights or Confidential Information could cause such other party to incur irreparable harm and significant injury that would be difficult to ascertain and would not be compensable by damages alone.  Accordingly, each party acknowledges and agrees that, in addition to any and all remedies that the non-breaching party may have at law or otherwise with respect to such a breach, the non-breaching party may be entitled to seek specific performance, injunction or other appropriate equitable relief without posting bond and without being obligated to prove actual damage or harm.

10.4     No delay or omission or failure to exercise any right or remedy provided for herein will be deemed to be a waiver thereof and any single or partial exercise of any such right or remedy, power or privilege will not preclude any later exercise thereof.

10.5     In the event that any provision of this Agreement is held to be invalid, illegal or unenforceable under present or future laws, then such provision will be fully severable and this Agreement will be construed and enforced as if such invalid, illegal or unenforceable provision were not a part hereof.

10.6       Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld);  provided, however, either party may assign this Agreement in its entirety in connection with a merger, acquisition, corporate reorganization or a sale 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 and their respective successors and permitted assigns.

10.7     Customer will reasonably cooperate with Ontic if it desires to issue a press release regarding the provision of the Ontic Services to Customer. Ontic may identify Customer as an Ontic Customer in Ontic’s marketing materials, promotional presentations, customer lists, website and other written and electronic materials. Any other uses of either party’s name shall be subject to the prior review and written approval of the owning party.  In the event that Ontic consents in writing to the use of the Ontic name and/or marks in Customer’s marketing materials, then Customer shall conspicuously disclose the use of the Ontic Services in the approved marketing materials.  Further, Customer may not market and/or advertise the Services in any manner without the prior written consent of Ontic and, if Ontic provides such prior written consent, Customer must clearly and conspicuously disclose in such marketing and/or advertising materials, literature, websites, social media or other marketing media or channels that Ontic is the provider of the Services.

10.8     The parties are independent contractors.  Nothing in this Agreement will create any association, partnership, fiduciary relationship or joint venture between the parties.  No party has been induced to enter into this Agreement by, nor is any party relying on, any representation or warranty outside those expressly stated in this Agreement.

10.9     In the event of a conflict between any provision of this Agreement and any SOW or Order Form, the terms of the SOW or Order Form shall prevail with respect to the matters covered by the applicable SOW and/or Order Form.

10.10   This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.  A facsimile or electronic delivery of the signature page hereto shall be deemed an original for all purposes hereof.

10.11   Notices under this Agreement must be in writing (including electronic format) and sent by postage prepaid first class mail or receipted courier service to the address below or to such other address (including facsimile or e-mail) as specified below and will be effective upon receipt:

To Customer:  to the contact information provided above or as subsequently provided in writing

To Ontic:  Ontic Technologies, Inc., 1005 W. 38th St., #300, Austin, Texas  78705  Attn:  President or CEO

EXHIBIT A

Service Level Agreement (SLA)

  1. Definitions

“Emergency Maintenance” means maintenance that is performed by Ontic due to a major service affecting issue that is outside of the Scheduled Maintenance Window and is a result of conditions or events beyond the Company’s reasonable control.

“Scheduled Maintenance Window” means the designated time periods during which Ontic may limit or suspend access to the Platform so that planned maintenance may be performed, which is generally between 12:00 a.m. and 6:00 a.m. Central time.

“Scheduled Maintenance” means maintenance of the Platform so long as (i) such maintenance is performed by Ontic during a Scheduled Maintenance Window, or (ii) Ontic has provided notice using e-mail (or other) method to Customer not less than twelve (12) hours before the commencement of such maintenance, which notice specifies the nature of such maintenance and the anticipated impact of such maintenance upon availability and/or performance of the Platform.

  1. Support

2.1       E-mail Support

Ontic e-mail support is available 24 x 7 x 365 at an email to be provided by Ontic, subject to circumstances beyond Ontic’s reasonable control and reasonable maintenance.  All questions, issues and requests can be logged via email to Ontic.

2.2       Live Phone Support

Phone support is available 9:00am (Central time) – 5:00pm (Central time) Monday-Friday at a phone number to be provided by Ontic, subject to circumstances beyond Ontic’s reasonable control and reasonable maintenance.

  1. Service Performance

3.1       Availability of the Platform

Ontic shall use commercially reasonable efforts to maintain availability of the Platform for 99.0% of the time during each calendar monthly reporting period (“Availability”), excluding for purposes of computing Availability:  (i) any Scheduled Maintenance or any Emergency Maintenance; (ii) unavailability caused by acts or omissions of Customer or its agents; (iii) unavailability caused by network unavailability or bandwidth limitations outside of the Ontic network; (iv) issues arising from problems in the software, firmware or hardware of Ontic’s suppliers; (v) hacks, malicious introduction of viruses, disabling devices, and other forms of attacks that disrupt access to the Platform; (vi) power outages or other telecommunications or Internet failures; and/or (vii) any Force Majeure Event (collectively, “Permitted Downtime”).

The Availability of the Platform for a given calendar month (subject to any Permitted Downtime) will be calculated on a monthly basis according to the following formula: Where: Total minutes in the month= TMM; Total minutes in month Unavailable = TMU; and: Availability = (TMM-TMU) x 100/TMM.  Ontic’s records and data will be the sole basis for all SLA calculations and determinations.

3.2       Service Level Credits

Customer will notify Ontic in writing of any non-compliance with the service levels set forth in this SLA Exhibit.  If the Platform does not meet the Availability requirement during any calendar month and after Ontic has received written notice thereof, then Customer, as Customer’s sole and exclusive remedy for such breach of this Service Level Agreement, will be entitled to receive a credit on Fees based on the number of hours that the Platform was not Available (a “Service Credit”), which Service Credit will be computed based on then current annual Fees paid for the Services, as pro-rated for the time period that the Platform was not Available.  The Service Level Credit will be applied to the license fee(s) for the next succeeding renewal period under this Agreement.  In order to receive the Service Credit, Customer must notify Ontic in writing within thirty (30) days from the time Customer becomes eligible to receive a Service Credit.  Failure to comply with this requirement will result in a forfeiture of the right to receive the Service Credit. Service Credits shall be Customer’s sole and exclusive remedy for any non-compliance with the service levels set forth in this SLA Exhibit.

3.3       Scheduled Maintenance Window

Ontic may change the Scheduled Maintenance Window to a different period on advance notice (via email or in-app notification) to Customer at least forty eight (48) hours prior to such change.  Ontic will use commercially reasonable efforts to minimize the impact for Customers using the Platform by typically utilizing only one or two Scheduled Maintenance Windows per month and performing operations to minimize Customer impact.

3.4       Emergency Maintenance

Ontic reserves the right to perform any required Emergency Maintenance work outside of the Scheduled Maintenance Window. Ontic will use commercially reasonable efforts to notify Customer as soon as reasonably possible upon identifying the required emergency work via email or phone call to the Customer’s System Administrator before commencing any Emergency Maintenance outside of the Scheduled Maintenance Window.