DigitalEx - End User License Agreement

END USER LICENSE AGREEMENT

BY CLICKING ON THE "I AGREE” (OR SIMILAR BUTTON) FOR ACCESSING OR USING THE SOFTWARE (AS DEFINED BELOW) AND THE SUBSCRIPTION (AS DEFINED BELOW), YOU INDICATE YOUR ASSENT TO THE FOLLOWING TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ANY OF THE TERMS OF THIS AGREEMENT, YOU SHOULD NOT USE OR ACCESS THE SOFTWARE.

This End User License Agreement (the "Agreement”) is a binding contract between you the User of this Software and DigitalEx Inc, a Delaware corporation, and having its registered office at 6001 W Parmer Lane Suite 370 #623 Austin, TX 78727 ("Company”, "we” "our” or "us”) in furtherance to the Subscription of the Software. For sake of brevity, "Subscriber, will include any party which has availed Subscription from the Company under the SaaS (defined below). This Agreement provides and captures important legal information about the Subscription to the Company’s Software namely "DIGITALEX PLATFORM AI ", and Your usage, and access of the Software and Subscription of the same. By accessing and using the Software and Subscription, You confirm and agree to be bound by the terms of this Agreement.

1. DEFINITIONS

A. "Account(s)" means an account generated for You to use the Subscription for the Purpose. For the avoidance of doubt, an Account is specific to You and under no circumstance may an Account be shared with any third-party.

B. "Affiliate(s)” shall mean any corporation, association, or other entity that directly or indirectly Controls, is Controlled by, or is under common Control with Company or Subscriber, either currently or during the validity of this Agreement. As used in this definition, the terms "Control" or "Controlled" mean the direct or indirect ownership/possession of more than 50% of the voting interests of the subject entity.

C. "Content" means all data and materials provided and uploaded by You for use in connection with the Subscription or Software, from time to time.

D. "Documentation” shall mean any accompanying documents, content, data, user guides, release notes, training materials, provided by Company to the Subscriber that describes or supports the use of the Software.

E. "Enhancement(s)" shall mean any modification, update, upgrade or addition to the Software that, when made or added to the modules currently being used by the Subscriber, provides minor functionality enhancements, but does not change overall utility, functional capability, or application, where such modifications or additions are generally made available by Company to all its customers as a part of their subscription to the Software.

F. "Error” shall mean any verifiable and reproducible failure or inability of the Software to perform any material functions set forth in the Documentation due to any programming defect in the Software when used by the Subscriber as specified under this Agreement or the Documentation. The term "Error”, shall however, not include any failure or inability of the Software that (i) results from the misuse or improper use of the Software, (ii) does not materially affect the operation and use of the Software, (iii) results from any modification to the Software that is not a Company authorized change, (iv) results from any cause beyond reasonable control of Company including third party cloud environment, hardware, software, firmware, malicious code like virus, trojan or malware.

G. "Company Content” means all content accessible on the Software, which is not Your Content (as defined below) including without limitation the Reports (as defined below).

H. "Fixes” shall mean any modification or addition to the Software that, when made or added to the solution or modules currently being used by the Subscriber, corrects Errors but does not change overall utility, functional capability, or application, where such modifications or additions are generally made available by Company to all its customers as a part of their subscription.

I. "Licensable Activity” shall mean any activity encompassed by any intellectual property rights and in the absence of a license, would give rise to liability for infringement (or inducement of infringement or contributory infringement) of such intellectual property rights.

J. "Your” or "You” will mean any employee, consultant of the Subscriber, or any person authorized by the Subscriber who may use the Software in accordance with the terms SaaS.

K. "Software" shall mean software named "DIGITALEX PLATFORM AI " accessed by You under this Agreement and which [add a brief description].

L. "Subscription" shall mean a license to use the Software as offered by Company and as is made available for Your use for the Purpose.

M. "Purpose” shall mean Your internal business purpose.

N. "SaaS” will mean Software as a Service agreement entered into between the Subscriber and Company with respect to usage of the Subscription;

O. "Subscription Term” will mean the term as agreed in the SaaS during which the Subscriber has availed the Subscription to the Software.

2. GRANT OF SUBSCRIPTION AND RESTRICTIONS

a. Grant of Subscription:

Subject to compliance of the applicable terms and conditions herein, the Company grants You during the Subscription Term, a fixed-term, non-exclusive, non-transferable, revocable, non-sub-licensable and limited Subscription to use and access the Software for the Purpose. Nothing herein contained shall be construed as granting You any intellectual property right, including copyrights, regarding the Software except as expressly provided for hereunder.

b. Restrictions:

You shall not, directly or indirectly: i) copy, modify, adapt, translate, reverse engineer, decompile, disassemble, alter, reproduce or otherwise make any changes to the Software, or ii) use the Subscription in any manner to provide time-sharing, benchmarking or other computer services to third parties, or except as expressly provided herein, allow any third party to access or benefit from the functionality of the Software, or iii) use the Subscription for any purpose other than the Purpose specified under this Agreement, or iv) use the Subscription or portion thereof in violation of any applicable export control laws or regulations, or v) allow use of the Subscription by anyone other than You, xii) engage in any Licensable Activity, xiii) use any of the Software’s components, add-ons, files, modules, externals, contents including associated subscription material separately from the Software; xiv) remove or modify any trademarks, trade names, service marks, service names, logos or brands, or copyright or other proprietary notices on the Software or the Documentation or add any other markings or notices to the Software or the Documentation. You shall have no rights to the Software other than as specifically granted herein. All rights not specifically and unequivocally granted to You are reserved by the Company. You shall not use or permit the use of any software, hardware, application, or process that (A) interferes with the Software, (B) interferes with or disrupts servers, systems, or networks connected to the Software, or (C) accesses or attempts to access another customer’s accounts, servers, systems, or networks without authorization, or (D) harasses or interferes with another subscriber’s use and enjoyment of the Software, or (v) tamper with or breach the security of the Software.

c. Company Content:

At all times, including when Company permits certain Company Content to be downloaded, You agree to use the Company Content solely for Purpose. Further, You agree to delete all downloaded Company Content on termination or expiration of this Agreement. In no event may the Company Content be distributed, shared, transferred, sold or leased to any third party, and any attempt to do so will result in immediate termination of this Agreement. Except as set forth above, the Company Content may not be modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part, without the prior written permission of Company. Except as otherwise set forth in this Agreement, any use of the Company Content is strictly prohibited. All trademarks, logos, trade dress and service marks included within the Company Content are trademarks or registered trademarks of Company and its licensors and may not be copied, imitated, or used, in whole or in part, without the prior written permission of Company. Unless as otherwise set forth in this Agreement, when You access Subscription, You are allowed to view (but not download, print, copy or transfer in any manner) the Company Content. The Company Content includes the confidential and proprietary information of Company and its licensors and is protected by the U.S. Copyright Act and international treaties, and Company and its licensors owns all copyrights, trademarks, service marks, trade secrets, patents, moral rights, contract rights, and other proprietary rights included therein. You agree to use the Company Content solely for its internal business purposes. You agree to not use the Software in any manner that violates any state, local or federal law, including, without limitation, any applicable antitrust law, rule or regulation.

3. YOUR RESPONSIBILITIES

a. Account Management

As a condition for using the Subscription, You shall be required to register with the Company and select a password and enter Your email address on the Software. You shall provide the Company with accurate, complete, and updated registration information. You agree that failure to do so shall constitute a breach of this Agreement, which may result in immediate termination of Your account. You will use the Subscription as directed by the Subscriber, however, this shall in no manner undermine any authority or rights of the Company. You shall be responsible for maintaining the confidentiality of Your Account. The Company shall not be liable for any loss of data or functionality caused directly or indirectly by You.

b. Compliance with Laws:

You will comply with all applicable local, state, national and foreign laws in connection with its use of the Subscription, including those laws related to data privacy, international communications, and the transmission of technical or personal data. You acknowledge that the Company exercises no control over the content of the information transmitted by You to the Software. You will not upload, post, reproduce or distribute any information, or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.

c. Unauthorized Use; False Information:

You will: (i) notify the Company immediately of any unauthorized use of any Account, password or user id or any other known or suspected breach of security, (ii) report to the Company immediately and use reasonable efforts to stop any unauthorized use of the Subscription that is known or suspected by You, and (iii) not provide false identity information to gain access to the Software or use the Subscription.

d. System requirements:

You acknowledge that, for accessing and use of the Subscription may be required to use one or more compatible devices, internet services and certain software and may require obtaining updates or upgrades of the Software from time to time. Because the access and use of the Subscription involves hardware, software, and internet access, Your ability to access and use of the Subscription may be affected by the performance of these factors.

e. Subscriber Content:

You will be solely responsible for all Content transmitted on the Software, and for ensuring that Content does not (i) include anything that actually or potentially infringes or misappropriates the copyright, trade secret, trademark or other intellectual property right of any third party, or (ii) contain anything that is obscene, defamatory, harassing, offensive or malicious or (iii) introduce any software viruses or other harmful or deleterious computer code, files, or programs, such as trojan horses, worms, time bombs, or cancelbots, or (iv) include profanity, hate speech or other language that is inconsistent with generally accepted standards of decency, or (v) constitute a breach of any contractual obligation Company may have with a third party, or vi) violate or encourage violation of any applicable laws, rules or regulations. You acknowledge and agree that the Company uses certain third-party tools for analytical purposes and may use Content and track Your usage of the Subscription for any purpose including but not limited to research, analytics, and to improve Your services. You agree that Company shall, at all times, possess the right to refuse to include and/or to cause the removal of any or all Content for any reason at Company’s sole discretion. You understand that the Company will not store or back up any of the Content on the Software.

4. INTELLECTUAL PROPERTY RIGHTS

a. Any and all ownership rights to the Software, Documentation, Enhancements, and branding thereof, including intellectual property rights therein is the sole and exclusive property of the Company. This Agreement does not grant You, any rights, title and interest in and to Software, Documentation, Enhancements, its contents, and branding thereof, except where expressly and unequivocally licensed herein. Any rights not expressly and unequivocally granted to You are reserved.

b. From time to time, You may provide feedback, suggestions, requirements or recommendations ("Feedback”) regarding the Software or the Subscription. You hereby assigns to the Company, all right, title and interest to such Feedback and an exclusive right to create any developments based on such Feedback.

c. You shall retain title to and all ownership rights in the Content. You grant to Company a worldwide, non-exclusive, and non-transferable limited-term subscription to host, copy, transmit, analyze, process, display, store, configure, and perform the Content solely as necessary to provide the Subscription.

d. You acknowledge and agree the Software will provide the reports (the "Reports") with the use of Content provided by You into the Software. All intellectual property rights including the ownership rights in all such Reports generated through the Software, the trademarks, logos, trade dress and service marks in the same shall vest solely with the Company and its licensors (as the case maybe) and shall be used by You solely for the Purpose. Except as set forth above, the Reports including trademarks, logos, trade dress and service marks in the same may not be used, modified, copied, distributed, framed, reproduced, republished, downloaded, displayed, posted, transmitted, or sold in any form or by any means, in whole or in part.

e. You agree that the Subscriber shall not assert, or authorize or assist, or encourage any third party to assert, against Company or any of its Affiliates, vendors, business partners or licensors any infringement or misappropriation of Intellectual Property Rights related claim regarding the Software, Enhancements or Reports.

5. PRIVACY & SECURITY

Company states that it endeavors to protect the privacy of You and Your integrity and security of the personal information. The personal information collected by us is subject to and governed by our Privacy Policy located at https://www.digitalex.io/privacy.html. You understand and agree that by using the Subscription, You have consented to the collection, use and disclosure of Your personally identifiable information and aggregate data as set forth in our Privacy Policy, and to have Your personally identifiable information collected, used, transferred to and processed.

6. CONFIDENTIALITY

a. "Confidential Information" shall mean information disclosed by one Party to the other and which includes, without limitation the financial, business, technical and marketing information, business plans, methods, processes, inventions, techniques, designs, data, know-how, ideas, concepts, strategies, trade secrets, software product and services and any such other information. The Company's Confidential Information shall include the information about the Software, Documentation, Fixes and Enhancements. Confidential Information does not include information which: a) is or becomes available in the public domain without the disclosure by the receiving Party and without breach of any agreement or confidentiality obligations; (b) was known to the receiving Party at the time of such disclosure was made, or becomes known to the receiving Party from any third party without breach of any confidentiality agreement with such third party; (c) is independently developed by receiving Party without violating any confidentiality obligations stated herein; (d) is disclosed pursuant judicial order or requirement of the governmental agency or by operation of law.

b. The receiving Party shall only use the Confidential Information for the purpose, for which it is disclosed. The receiving Party shall keep Confidential Information and proprietary information and data received from the disclosing Party in strict confidence and shall not disclose it to any third parties except to a limited group of receiving Party's directors, officers, agents, authorized representatives on a need-to-know basis and each of whom shall be informed by receiving Party of the confidential nature of Confidential Information and agree to observe the same terms and conditions set forth herein as if specifically named a Party hereto. Receiving Party will use the same degree of care and discretion (but in any event no less than a reasonable degree of care and discretion) to avoid unauthorized disclosure or use of the disclosing Party's Confidential Information as that receiving Party uses to protect its own information of a similar nature from unauthorized disclosure or use.

c. In the event, the receiving Party is required to disclose the Confidential Information of the disclosing Party pursuant to a court order or government authority, then the Confidential Information shall be disclosed by the receiving Party, but only to the extent so ordered, and provided that the receiving Party promptly notifies the disclosing Party of the pending disclosure in writing so that the disclosing Party may attempt to obtain a protective order or otherwise protect the confidentiality of the Confidential Information. In the event of a possible disclosure under this sub-clause, if requested by the disclosing Party, the receiving Party will provide reasonable assistance to the disclosing Party (at the disclosing Party’s expense) in obtaining a protective order or otherwise protecting the confidentiality of the Confidential Information.

d. Upon request by the disclosing Party, the receiving Party shall immediately return to the disclosing Party, all Confidential Information disclosed by the disclosing Party and all copies thereof. Notwithstanding the disclosure of Confidential Information, all such information shall be and shall remain the sole property of the disclosing Party.

e. The receiving Party agrees that any violation of the confidentiality obligations will cause irreparable injury to the disclosing Party, entitling disclosing Party to obtain injunctive relief in addition to all legal remedies.

f. The confidentiality obligations stated herein shall survive for a period of three (3) years from the date of termination or expiration of this Agreement.

7. TERM AND TERMINATION

a. This Agreement will commence upon Your acceptance of the terms of this Agreement through or your access to the Software and the Subscription whichever occurs earlier, and unless earlier terminated as provided in this section (Term and Termination), will continue until the earlier occurrence of any of the following events:

i. the end of the applicable Subscription Term;
ii. termination of Your account by the Company; or
iii. this Agreement will immediately terminate upon Your breach of the terms of this Agreement.

b. Upon the termination of this Agreement, Your access to the Software and the Subscription will immediately cease to exist.

c. Sections 4, 5, 6, 7, 8, 9, 10, 11 and 12, will survive the termination of this Agreement.

8. INDEMNITY

You agree to indemnify, keep indemnified, defend ( at the Company’s option) and hold harmless the Company, its Affiliates and its respective directors, officers, employees, representatives, from and against any and all claims and resulting losses, allegations, costs, liabilities, and expenses (including reasonable attorney’s fees), arising as a result of or in connection with (a) Your breach of or violation of applicable laws and regulations including but not limited to any applicable data privacy laws, (b) use of the Software other than as permitted under this Agreement; (c) any acts or omissions on Your part; (d) a third party claim for infringement or misappropriation based upon the Your combination or use of the Software with, services, or products developed by You or third parties; (e) any breach of obligations, representations and warranties by You or (f) any violation of applicable laws, rules and regulations. The provisions of this section shall survive the termination of this Agreement.

9. WARRANTY DISCLAIMER

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SOFTWARE, ITS SUBSCRIPTION ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT ANY REPRESENTATIONS, CONDITIONS, WARRANTIES OR COVENANTS WHATSOEVER. THE COMPANY HEREBY DISCLAIMS ALL OTHER IMPLIED OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, SATISFACTORY QUALITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, LOSS OF DATA OR ARISING OTHERWISE IN LAW OR EQUITY OR FROM A COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED AND EXCLUDED. THE COMPANY FURTHER DISCLAIMS WARRANTIES THAT THE SOFTWARE WILL MEET THE YOUR'S REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ANY BUGS OR ERRORS OR DEFECTS WOULD BE FIXED OR THE SOFTWARE WILL OPERATE IN COMBINATION WITH CONTENT OR SOFTWARES, OR WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY THE COMPANY. ALL SPECIFICATIONS, INFORMATION, AND OTHER MATERIALS PROVIDED BY THE COMPANY TO YOU ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY OF ANY KIND, INCLUDING ANY STATUTORY WARRANTIES THAT MAY APPLY TO SUCH SPECIFICATIONS, INFORMATION OR MATERIALS. YOU ACKNOWLEDGE THAT THE COMPANY DOES NOT CONTROL THE ACCURACY OF THE REPORTS, THIRD PARTY CONTENT PUBLISHED BY USERS (OR PUBLISHED BY COMPANY ON BEHALF OF USERS), THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING, THE INTERNET, AND THAT THE SOFTWARE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. COMPANY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SOFTWARE AND/OR ANY AND ALL PERSONAL INFORMATION AND/OR, TECHNICAL INFORMATION STORED THEREIN, (II) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SOFTWARE BY ANY THIRD PARTY, AND/OR (III) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, COMMUNICATED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SOFTWARE OR THE SUBSCRIPTION. COMPANY AND ITS LICENSORS CANNOT GUARANTEE AND DO NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF SUBSCRIPTION AND THE COMPANY CONTENT.

10. LIMITATION OF LIABILITY

THE COMPANY WILL NOT BE LIABLE UNDER OR FOR CONTRACT, NEGLIGENCE, LIABILITY (A) FOR LOSS OR INACCURACY OF DATA OR, COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR TECHNOLOGY, (B) FOR ANY DIRECT OR INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS, LOSS OF CONFIDENTIAL OR OTHER INFORMATION, BUSINESS INTERRUPTION ARISING OUT OF OR IN ANY WAY RELATED TO YOUR USE OF OR INABILITY TO USE THE SOFTWARE AND/ OR SUBSCRIPTION. IN THE EVENT YOU ARE NOT SATISFIED WITH ANY TERMS OF THIS AGREEMENT OR THE SOFTWARE AND/OR THE SUBSCRIPTION, THE SOLE REMEDY AVAILABLE TO YOU WILL BE TO TERMINATE THIS AGREEMENT, WITHOUT ANY LIABILITY ON THE COMPANY. THE FOREGOING EXCLUSIONS OR LIMITATIONS OF LIABILITY SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED WARRANTY OR REMEDY HEREIN. NO CLAIM AGAINST COMPANY MAY BE BROUGHT MORE THAN ONE (1) YEAR AFTER THE FACTS GIVING RISE TO SUCH CLAIM HAVE ARISEN.

11. NOTICES

All notices, demands, or consents required or permitted under this Agreement will be in writing. Notice will be considered effective on the earlier of actual receipt or: (i) the day following transmission if sent by facsimile or email with pdf followed by written confirmation; (ii) one day (two days for international addresses) after posting when sent via an express commercial courier; or (iii) five days after posting when sent via post. Notice will be sent to the address for each party set forth on the first page of this Agreement, or at such other address as will be provided by either party to the other in writing.

12. GENERAL PROVISIONS

a. This Agreement along with other policies referred under this Agreement, constitutes the entire or sole legal agreement between You and Company and will govern the use of the Software and Subscription and will supersede and prevail over any prior agreements, whether oral or written, regarding the subject matter hereof.

b. If any court of law, having the jurisdiction to decide on this matter, rules that any provision contained under this Agreement is invalid, then that provision will be removed from the Agreement without affecting the rest of the Agreement. The remaining provisions of the Agreement will continue to be valid and enforceable.

c. You may not assign this Agreement without the prior written consent of Company. Any unauthorized assignment of this Agreement is void. The Company will have a right to assign this Agreement to its Affiliates or any third parties at any time without notice to You.

d. This Agreement shall be construed and governed by and in accordance with the laws of State of Delaware. The Parties shall resolve any difference or dispute arising out of this Agreement by way of negotiations. If such negotiation process fails, then all disputes arising from or related to this Agreement shall be resolved by litigation and the federal and state courts in State of Delaware shall have the exclusive jurisdiction to resolve the disputes between the Parties. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, THE PARTIES HEREBY WAIVE ANY RIGHTS THEY MAY HAVE TO TRIAL BY JURY. This Agreement shall not be governed by the conflict of law rules of any jurisdiction, the United Nations Convention on Contracts for the International Sale of Goods, or the Uniform Computer Information Transactions Act, the application of which is expressly excluded. If any action is pursued to enforce this Agreement, the prevailing party shall be entitled to reasonable attorneys’ fees and costs and any other relief to which such party may be entitled.

e. Any waivers and modifications must be in writing and signed by both parties. No delay or omission by either party in exercising any right or remedy under this Agreement or existing at law or equity will be considered a waiver of such right or remedy.

f. By registering the details with Company, You agree that we may contact You with important information relating to the Software or Subscription.

g. No agency, partnership, joint venture, or employment is created between you and the Company as a result of this Agreement, and You does not have any authority of any kind to bind Company in any respect whatsoever.

h. Company may update the terms and conditions of this Agreement, at its own discretion. Company hereby encourages You to check these terms and conditions on a regular basis to be aware of the changes made to it which are also available on https://www.digitalex.io/tos.html for the most recent version.

This Agreement was last modified in 12-JAN-2023.