READ THIS TERMS OF SERVICE AGREEMENT (the or this “AGREEMENT”) CAREFULLY BEFORE CONTINUING THE USE OF THE SERVICE. YOUR USE OF THE SERVICE IS SUBJECT TO THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST NOT USE THE SERVICE.  

In consideration of the mutual covenants and promises set forth herein, and other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Adronite, Inc., a Washington state corporation (“Adronite”), and You and/or the entity you represent (“Customer”) agree as follows:

1. SERVICES
   1. Purpose. This Agreement sets forth the Terms of Service under which Adronite agrees to provide (i) a “software as a service” (“Subscription Services”) for its software coding applications (each such application together with any applicable documentation thereto, and programming and user interfaces therefor, a “Platform”) to Authorized Users, as further set forth on an order form (“Order Form” which form is incorporated by reference herein) and (ii) if applicable and confirmed in the Order Form, all other implementation services, including where applicable, integration, data import and export, monitoring, technical support, maintenance, training, backup and recovery (“Professional Services” together with Subscription Services, referenced as the “Services”) related to Customer’s access to, and use of, such Subscription Services.
   2. The Services; Access and Use License. Subject to the terms and conditions of this Agreement, during the Term, and subject to the terms and conditions of this Agreement, during the Term, Adronite hereby grants Customer and Authorized Users a non-exclusive, non-sublicensable, non-transferable, worldwide license to access and use the licensed Subscription Services solely for internal business purposes as set forth herein.
   3. Subscription Services. Each applicable Order Form shall specify and further describe the Subscription Services to be licensed as set forth herein and shall identify each applicable Platform, user limitations, fees, subscription terms, and other applicable terms and conditions.
   4. Changes to the Platform. Adronite may, in its sole discretion, make any changes to any Platform that it deems necessary or useful, including without limitations to (i) maintain or enhance (a) the quality or delivery of Adronite’s products or services to its customers, (b) the competitive strength of, or market for, Adronite’s products or services, (c) such Platform’s cost efficiency or performance, or (ii) to comply with applicable law.
   5. Services Level. [LEFT BLANK TO CONFIRM]
2. PLATFORM ACCESS AND AUTHORIZED USER
   1. Authorized Users. Customer may allow only such a number of Customer’s employees as indicated on an Order Form to use the applicable Platform on behalf of Customer as an “Authorized User.” Authorized User subscriptions are for designated Authorized Users and cannot be shared or used by more than one Authorized User but may be reassigned to new Authorized Users replacing former Authorized Users who no longer require ongoing use of the applicable Platform.
   2. Authorized User Conditions to Use. As a condition to accessing and use of a Platform, (i) each Authorized User shall agree to abide by the terms of Adronite’s end-user terms of use, which it may adopt from time to time; and (ii) any permitted Customer users shall agree to abide by the terms of this Agreement, and, in each case, Customer shall ensure such compliance. Customer shall immediately notify Adronite of any violation of the terms of any of the foregoing by any Authorized User upon becoming aware of such violation and shall be liable for any breach of this Agreement by any Authorized User.
   3. Account Responsibility. Customer will be responsible for (i) all uses of any account that Customer has access to, whether or not Customer has authorized the particular use or user, and regardless of Customer’s knowledge of such use, and (ii) securing its Adronite account, passwords (including but not limited to administrative and user passwords) and files. Adronite is not responsible for any losses, damage, costs, expenses, or claims that result from stolen or lost passwords.
3. ADDITIONAL RESTRICTIONS AND RESPONSIBILITIES
   1. Software Restrictions. Customer will not, nor permit or encourage any third party to, directly or indirectly, (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or derive the source code, object code or underlying structure, ideas, know-how or algorithms relevant to a Platform or any software, documentation or data related to a Platform including the software of such Platform (“Software”); (ii) modify, translate, or create derivative works based on a Platform or any Software; (iii) use a Platform or any Software for timesharing or service bureau purposes or other computer service to a third party; (iv) modify, remove or obstruct any proprietary notices or labels; or (v) use any Software or a Platform in any manner to assist or take part in the development, marketing or sale of a product potentially competitive with such Software or Platform. For the avoidance of doubt, Software, including all user-visible aspects of the Services, are the Confidential Information of Adronite, and Customer will comply with Section 4 with respect thereto.
   2. Customer Compliance. Customer shall use, and will ensure that all Authorized Users use, each Platform, Software, and the Services in full compliance with this Agreement, and all applicable laws and regulations. Customer represents and warrants that it (i) has accessed and reviewed any terms of use or other policies relating to a Platform provided by Adronite, (ii) understands the requirements thereof, and (iii) agrees to comply therewith. Adronite may suspend Customer’s account and access to each Platform and performance of the Services at any time and without notice if Adronite believes that Customer is in violation of this Agreement. Although Adronite has no obligation to monitor Customer’s use of a Platform, Adronite may do so and may prohibit any use it believes may be (or alleged to be) in violation of the foregoing.
   3. Cooperation. Customer shall provide all cooperation and assistance as Adronite may reasonably request to enable Adronite to exercise its rights and perform its obligations under, and in connection with, this Agreement, including providing Adronite with such access to Customer’s premises and its information technology infrastructure as is necessary for Adronite to perform the Services in accordance with this Agreement.
   4. Training and Education. Adronite may provide to Customers education and training in a manner in its sole discretion, related to the use and operation of a Platform such Customer Users utilize, if such education and training is provided in an applicable Order Form. 
   5. Customer Systems. Customer shall be responsible for obtaining and maintaining—both the functionality and security of—any equipment and ancillary services needed to connect to, access or otherwise use each Platform, including modems, hardware, servers, software, operating systems, networking, web servers and the like.
   6. Restrictions on Export. Customer may not remove or export from the United States or allow the export or re-export of the Software or anything related to a Platform, Software or Services, or any direct product thereof in violation of any restrictions, laws or regulations of any United States or foreign agency or authority.
   7. DFARS. Software, each Platform and the Services and any documentation provided by Adronite are deemed to be “commercial computer software” and “commercial computer software documentation” pursuant to Defense Federal Acquisition Regulation Supplement, codified under Chapter 2 of Title 48, United States Code of Federal Regulations, Section 227.7202, and Federal Acquisition Regulation, codified in Title 48 of the United States Code of Federal Regulations, Section 12.12. Any use, modification, reproduction, release, performance, display, or disclosure of the Software or documentation by the United States Government is governed solely by this Agreement and is prohibited except to the extent expressly permitted by this Agreement.
4. CONFIDENTIALITY
   1. Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has been, and may be, exposed to or acquired business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information”). Confidential Information of Adronite includes non-public information regarding features, functionality and performance of each Platform and Software. Confidential Information of Customer includes non-public data provided by Customer to Adronite to enable the provision of access to, and use of, the Services as well as all content, data and information recorded and stored by each Platform for Customer (“Customer Data”). The terms and conditions of this Agreement, including all pricing and related metrics, are Adronite’s Confidential Information.
   2. Exceptions. Notwithstanding anything to the contrary contained herein, Confidential Information shall not include any information that the Receiving Party can document (i) is or becomes generally available to the public, (ii) was in its possession or known by it prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party or, (vi)  is required to be disclosed by any applicable laws, judicial processes, government body, pr the rules or regulations of any government with authority of law to require such disclosure.
   3. Non-use and Non-disclosure. With respect to Confidential Information of the Disclosing Party, the Receiving Party agrees to: (i) use the same degree of care to protect the confidentiality, and prevent the unauthorized use or disclosure, of such Confidential Information it uses to protect its own proprietary and confidential information of like nature, which shall not be less than a reasonable degree of care, (ii) hold all such Confidential Information in strict confidence and not use, sell, copy, transfer reproduce, or divulge such Confidential Information to any third party, (iii) not use such Confidential Information for any purposes whatsoever other than the performance of, or as otherwise authorized by, this Agreement.
   4. Remedies for Breach of Obligation of Confidentiality. The Receiving Party acknowledges that breach of its obligation of confidentiality may cause irreparable harm to the Disclosing Party for which the Disclosing Party may not be fully or adequately compensated by recovery of monetary damages. Accordingly, in the event of any violation, or threatened violation, by the Receiving Party of its obligations under this Section, the Disclosing Party shall be entitled to seek injunctive relief from a court of competent jurisdiction in addition to any other remedy that may be available at law or in equity, without the necessity of posting bond or proving actual damages.
5. PROPRIETARY RIGHTS
   1. Ownership. Adronite shall own and retain all right, title and interest in and to (i) each Platform, Software and the Services and all improvements, enhancements or modifications thereto, including any modifications provided to Adronite by Customer, (ii) any software, applications, inventions, intellectual property and proprietary rights or other technology developed solely by Adronite or in collaboration with Customer in connection with the Services, and (iii) all intellectual property and proprietary rights in and related to any of the foregoing (collectively, “Services IP”). To the extent Customer acquires any right, title or interest in any Services IP, Customer hereby assigns all its right, title and interest in such Services IP to Adronite and shall assist Adronite with the confirmation of such assignment.
   2. No Other Rights. No rights or licenses are granted to Customer except as expressly set forth herein.
6. FEES & PAYMENT
   1. Fees. Customer will pay Adronite the then-applicable Subscription Terms and Fees then described in an Order Form as applicable, in accordance with the terms set forth therein, including, for the avoidance of doubt, any fees incurred through Customer’s use of a Platform exceeding a services capacity parameter specified on an Order Form.
   2. Renewal Fees. Upon the commencement of each Renewal Term, (i) Customer shall be liable to Adronite for payment of a Renewal Fee. Customer hereby consents to Adronite using a payment method, associated with Customer’s account without needing to provide any further notice or receive any further consent. Each “Renewal Fee” shall equal the Service Fee or Renewal Fee, as applicable, due to Adronite during the previous term as may be increased in Adronite’s sole discretion, provided, if the Initial Term was greater than one (1) year, for purposes of calculating the initial Renewal Fee the Service Fee shall be prorated to one (1) year. Notwithstanding the foregoing, if Customer is not liable to Adronite for a Service Fee under an Order Form, no Renewal Fees shall be charged to Customer with respect to such Order Form. 
   3. Reimbursable Expenses. In addition to the Fees, if applicable, Customer shall reimburse Adronite for reasonable out-of-pocket expenses incurred by Adronite in connection with performing any service authorized by Customer related to Adronite’s implementation and support of Customer’s use of the Platform and Software.
   4. Payment. Adronite may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Adronite thirty (30) days after the mailing date of the invoice (unless otherwise specified on the applicable Order Form). Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all collection expenses. In addition to any other remedies available, Adronite may suspend Services in the event of payment delinquency.
   5. Payment Disputes. If Customer believes that Adronite has billed Customer incorrectly, Customer must contact Adronite no later than ten (10) days after the closing date on the first billing statement in which the believed error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to Adronite’s Customer contact.
   6. Taxes. Customer shall pay and be liable for all taxes relating to Adronite’s provision of the Services hereunder. 
   7. No Deductions or Setoffs. All amounts payable to Adronite hereunder shall be paid by Customer to Adronite in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason except as required by applicable law.
   8. Subpoena Expenses. If Adronite must provide information in response to a subpoena related to Customer’s account, then Adronite may charge Customer for Adronite’s costs. Such charges may include fees for attorney and employee time spent retrieving records, preparing documents, participating in depositions or another legal process, and other costs incurred in complying with such legal processes.
7. TERM AND TERMINATION
   1. Term. This Agreement shall remain in effect until its termination as provided below (the “Term”). The term of each Subscription Services shall begin on the applicable “Services Effective Date” and continue for the “Service Term,” in each case as specified in such Subscription Services. Each Order Form shall renew for additional (i) one (1) year periods if the Service Term is equal to or greater than one (1) year, or (ii) periods equal to the Service Term if the Service Term is less than one (1) year (each, a “Renewal Term”), unless written notice of non-renewal is received by the other party at least sixty (60) days, but not less than thirty (30) days, prior to the expiration of the then current term.
   2. Termination. Adronite may terminate this Agreement upon written notice to Customer if no Subscription Services is in effect. In addition to any other remedies it may have, either party may also terminate this Agreement upon written notice if the other party fails to pay any amount when due or otherwise materially breaches this Agreement and fails to cure such breach within thirty (30) days or as agreed upon by both parties after receipt of written notice of such breach from the non-breaching party. Notwithstanding the foregoing, if Customer is a state agency or a political subdivision of a state, or a federal agency or a political subdivision of the federal government, Customer may terminate this Agreement at any time (i) for convenience upon ninety (90) days’ written notice to Adronite, or (ii) if adequate funds to pay Adronite all fees owed hereunder are not appropriated to such Customer during the Term, unless otherwise authorized by law; provided, it is expressly agreed that Customer shall not activate this non-appropriation provision for its convenience, substation for another procurement system or solution, or to circumvent the requirements of this Agreement in any way.
   3. Effect of Termination. Upon termination of the Agreement, each outstanding Subscription Services, if any, shall terminate and Customer shall immediately cease all use of, and all access to, the Subscription Services and Adronite shall immediately cease providing the Professional Services. If (i) Adronite terminates this Agreement pursuant to the second sentence of Section 7.2, or (ii) Customer terminates this Agreement pursuant to clause (i) of the last sentence of Section 7.2, all Fees that would have become payable had each outstanding Statement of Service remained in effect until expiration of its current term will become immediately due and payable.
   4. Survival. Sections [3.1, 3.6,3.7,4.1-4.4,5.1-5.2,6.1,7.3,8-17] shall survive any termination or expiration of this Agreement. All other rights and obligations shall be of no further force or effect.
8. WARRANTY DISCLAIMER
   1. Disclaimer. ADRONITE DOES NOT GUARANTEE OR WARRANT THAT THE PLATFORM, SOFTWARE, OR RELATED SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED OR THAT ADRONITE WILL CORRECT ALL RELATED ERRORS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, ADRONITE DOES NOT WARRANT THAT ACCESS TO THE PLATFORMS, SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES ADRONITE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. FURTHER, ADRONITE MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SERVICES PROVIDED BY THIRD PARTY TECHNOLOGY SERVICE PROVIDERS RELATING TO OR SUPPORTING A PLATFORM, INCLUDING HOSTING AND MAINTENANCE SERVICES, AND ANY CLAIM OF CUSTOMER ARISING FROM OR RELATING TO SUCH SERVICES SHALL, AS BETWEEN ADRONITE AND SUCH SERVICE PROVIDER, BE SOLELY AGAINST SUCH SERVICE PROVIDER. THE PLATFORMS, SOFTWARE AND SERVICES ARE PROVIDED “AS IS,” AND ADRONITE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
9. LIMITATION OF LIABILITY

IN NO EVENT SHALL (I) ANDRONITE’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY EXCEED IN THE AGGREGATE THE TOTAL FEES PAID OR OWED BY CUSTOMER TO ADRONITE, AND ACTUALLY RECEIVED BY ADRONITE, HEREUNDER DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE EVENT GIVING RISE TO THE CLAIM (SUCH AMOUNT BEING INTENDED AS A CUMULATIVE CAP AND NOT PER INCIDENT), AND (II) ADRONITE SHALL NOT HAVE ANY LIABILITY TO CUSTOMER FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, COVER, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, HOWEVER, CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT ADRONITE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS AND DISCLAIMERS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

10. INDEMNIFICATION

10.1 Indemnification by Customer. If a third party makes a claim against Adronite that the Client Content infringes any patent, copyright, or trademark or misappropriates any trade secret, Client, with Adronite’s sole discretion to participate in defense of any such claim, shall defend Adronite and its directors, officers, and employees against the claim at Client’s expense, and Client shall pay all losses, damages, and expenses (including reasonable attorneys; fees) finally awarded against such parties or agreed to in a written settlement agreement signed by Client, to the extent arising from the claim.

11. GOVERNING LAW AND DISPUTE RESOLUTION

This Agreement is governed in all respects by the laws of the State of Washington, without giving effect to its rules relating to conflict of laws. Neither any adoption of the Uniform Computer Information Transactions Act nor the U.N. Convention on the International Sale of Goods applies to this Agreement or to the rights or duties of the parties under this Agreement. Any dispute arising out of or relating to this Agreement or its subject matter shall be resolved exclusively by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). Either party may send a notice to the other party of its intention to file a case with the AAA under this Section (“Arbitration Notice”). The arbitration will be conducted in Seattle, Washington by a single arbitrator knowledgeable in contracting matters and the commercial aspects of “software as a service” arrangements and intellectual property. The parties will mutually appoint an arbitrator within thirty (30) days of the Arbitration Notice. If the parties are unable to agree on an arbitrator, then the AAA will appoint an arbitrator who meets the foregoing knowledge requirements. The arbitration hearing will commence within sixty (60) days after the appointment of the arbitrator, and the hearing will be completed. An award will be rendered in writing within sixty (60) days after the commencement of the hearing. Prior to the hearing, each party will have the right to take up to four (4) evidentiary depositions and exchange two (2) sets of document production requests and two sets, each, of not more than ten (10) interrogatories. The arbitrator will provide detailed written explanations to the parties to support their award, and regardless of the outcome, each party shall pay its own costs and expenses (including attorneys’ fees) associated with the arbitration proceeding and fifty percent (50%) of the fees of the arbitrator and the AAA. The arbitration award will be final and binding and may be enforced in any court of competent jurisdiction.

12. SECURITY

Adronite may, from time to time, host and/or maintain a Platform using a third-party technology service provider, and Customer acknowledges that Adronite cannot offer any additional or modified procedures other than those put in place by such technology provider with respect to such technology service.

13. PUBLICITY

Customer agrees that Adronite may identify Customer as a customer and use Customer’s logo and trademark in Adronite’s promotional materials. Notwithstanding anything herein to the contrary, Customer acknowledges that Adronite may disclose the existence and terms and conditions of this Agreement to its advisors, actual and potential sources of financing, and to third parties for due diligence purposes.

14. NOTICES

All notices, consents, and other communications between the parties under or regarding this Agreement must be in writing (which includes email and facsimile) and be addressed according to information provided on an Order Form.

All notices, consents and other communications between the parties under a Subscription Services will be sent to the recipient’s address specified thereon. All communications will be deemed to have been received on the date received. Either party may change its address for notices by giving written notice of the new address to the other party in accordance with this Section.

15. FORCE MAJEURE

Adronite is not responsible nor liable for any delays or failures in performance from any cause beyond its control, including, but not limited to acts of God, changes to law or regulations, embargoes, war, terrorist acts, acts or omissions of third-party technology providers, riots, fires, earthquakes, floods, power blackouts, strikes, weather conditions or acts of hackers, internet service providers or any other third party or acts or omissions of Customer or any Authorized User.

16. ASSIGNMENT

Adronite may assign or sublicense any or all of its obligations under this Agreement to any third party without the prior written consent of Customer; Customer may not assign this Agreement without the written consent of Adronite provided that no consent is required in connection with an assignment to an affiliate or in connection with any merger, reorganization, consolidation, sale of assets or similar transaction. 

17. GENERAL PROVISIONS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement, together with the Subscription Services entered into hereunder and all exhibits, annexes, and addenda hereto and thereto, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in writing and signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither party has the authority to bind the other party in any respect whatsoever. In the event of a conflict between this Agreement and any Subscription Services, such Subscription Services shall prevail unless otherwise expressly indicated in this Agreement or such Subscription Services. The heading references herein are for convenience purposes only and shall not be deemed to limit or affect any of the provisions hereof. Unless otherwise indicated to the contrary herein by the context or use thereof: (i) the words “hereof,” “hereby,” “herein,” “hereto,” and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular Section or paragraph of this Agreement; (ii) the words “include,” “includes” or “including” are deemed to be followed by the words “without limitation;” (iii) references to a “Section” or “Exhibit” are references to a section of, or exhibit to this Agreement, and (iv) derivative forms of defined terms will have correlative meanings.