Clusio, Inc.

END-USER LICENSE AGREEMENT

EFFECTIVE DATE: January 1st, 2017

This End-User License Agreement (the 'Agreement') is a binding contract between You and Vendor (as defined below). PLEASE READ THE TERMS AND CONDITIONS OF THE AGREEMENT CAREFULLY BEFORE INSTALLING, DOWNLOADING, ACCESSING, OR USING THE CLIENT SOFTWARE (AS DEFINED BELOW) OR THE SOFTWARE SERVICE (AS DEFINED BELOW) OR ANY DESKTOP OR MOBILE APPLICATION THAT YOU MAY USE IN CONNECTION THEREWITH (COLLECTIVELY, THE 'SOFTWARE SYSTEM').

(A) YOU ARE LICENSED TO USE THE SOFTWARE SYSTEM ONLY IF YOU ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT SET FORTH BELOW.

(B) READ THIS AGREEMENT CAREFULLY. YOU MAY INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT BY CLICKING ON THE [ACCEPT] BUTTON BELOW, OR BY INSTALLING, DOWNLOADING, ACCESSING, OR USING THE SOFTWARE SYSTEM OR ANY PART THEREOF. IN DOING SO YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY, AND TERMINATION PROVISIONS, AND YOU AGREE THAT THIS AGREEMENT IS AS BINDING AND ENFORCEABLE AS ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU.

(C) IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK ON THE [DECLINE] BUTTON BELOW IN WHICH CASE YOU WILL NOT BE PERMITTED TO, AND YOU AGREE NOT TO, INSTALL, DOWNLOAD, ACCESS, OR USE THE SOFTWARE SYSTEM.

DEFINITIONS

In addition to the terms defined elsewhere in this Agreement, the following terms, when used in this Agreement, shall have the following meanings:

  1. 'You' means the single end-user customer or entity entering into this Agreement.
  2. 'Vendor' means Clusio Inc, a Delaware limited liability company having its primary place of business at 526 S Main St, Suite 2X, Akron, Ohio 44311, USA.
  3. 'Client Software' means that that portion of the Clusio healthcare enterprise software that resides on a Device, including any remote or mobile access and interface means or applications (each, an 'Application'), instructions, or statements in machine readable form, and related documentation, user manuals and listings, training documentation, whether in machine-readable, human-readable form or printed form, and all copies of the foregoing, and any supplements, updates, or fixes thereto, as provided by Vendor to You.
  4. 'Field of Use' means the field for which a Device and the Software System have been authorized by Vendor in a separate master services or other agreement between Vendor and You, between Vendor and its customer, or otherwise.
  5. 'Software Service' means the Clusio healthcare enterprise software online service and related documentation, user manuals and listings, training documentation, whether in machine-readable, human-readable form or printed form, and all copies of the foregoing, and any supplements, updates, or fixes thereto.
  6. 'Device' means and includes (a) an internet-based remote and automated industrial vending and point-of-work technology provided by Vendor to You and (b) any mobile device by which you access the Software System through an Application provided by or for Vendor for that purpose, that in either instance includes, utilizes or interacts with, or is configured to utilize or interact with, the Software System, and which is properly in Your possession and control.
  7. 'Authorized Server' means a server and/or computer system that is remote from You and Your Device, is controlled by Vendor, and which hosts the Software Service.

LICENSE GRANT AND RESTRICTIONS

  1. Limited License Grant. So long as You are in compliance with all terms and conditions of this Agreement, You are granted a limited, non-exclusive, non-sublicensable, personal, non-assignable, non-transferable right to install and use the Client Software on a Device solely for Your internal business purposes. In addition, so long as You are in compliance with all terms and conditions of this Agreement, You are granted a limited, non-exclusive, non-sublicensable, personal, non-assignable, non-transferable right and license to use the Software Service in conjunction with a Device via an Authorized Server solely for Your internal business purposes. You agree and acknowledge that the Client Software and Software Service shall be used only in conjunction with a Device purchased, leased or otherwise properly commercially acquired from Vendor or on a mobile Device on which an Application is used and installed with Vendor's authorization.
  2. Payment. You may be required to pay Vendor for use of the Client Software and the Software Service in accordance with a payment schedule agreed to by You and Vendor, which is incorporated herein. Your failure to make timely payments in accordance with such payment schedule shall result in a revocation of the rights and licenses granted in Section 2.1 and Vendor shall have the right to terminate this Agreement as specified in Article 3.
  3. Server Access. Vendor shall provide You reasonable access to an Authorized Server via internet connectivity. Vendor reserves the right to change the identity, equipment, and/or configuration of the Authorized Server at any time. You shall provide and maintain an ISP account with a PPTP internet connection for communicating with the Authorized Server. Vendor will provide You all necessary information to access the Software Service on an Authorized Server via the Client Software, including internet address and/or portal information, username and password information which shall be considered confidential information and treated as such by You.
  4. Your Restrictions. You hereby agree that You shall not:
    • use a Device, an Application on a Device, or the Software System outside the Field of Use or for any purpose other than the operation of Your business in its ordinary course;
    • make any copies of, or otherwise reproduce or distribute, the Client Software;
    • use the Software System otherwise than in accordance with the express terms of this Agreement;
    • permit any third party to use or access the Software System in any way whatsoever without Vendor's prior written consent, or use the Software System for the benefit of any third party, or use the Software System in any manner to provide service bureau, leasing, time-sharing, or other computer services to third parties, or publicly display the Software System;
    • adapt, modify, decompile, disassemble, decrypt, translate, extract, or otherwise reverse engineer the Software System or permit any third party to do so unless local law gives You the right to reduce the Software System to human readable form (whether by reverse engineering, decompilation, or disassembly) in order to obtain information necessary to ensure interoperability of the Software System with independently created software, in which case You shall first notify Vendor of the information reasonably required in this respect (Vendor shall have the right to impose reasonable conditions such as a reasonable fee for providing such information to You), and then You shall receive or obtain only as much information as is necessary to comply with such local law;
    • create derivative works based upon any of the Software System;
    • export or seek to export all or part of the Software System;
    • attempt to circumvent any technological measures that control or restrict access to or use of any portion of the Software System;
    • share the internet address and/or portal information of an Authorized Server with any third party, or share Your username and password information with any third party;
    • request, permit, or authorize anyone, other than Vendor or its authorized representatives, to provide any maintenance or support services with respect to the Software System;
    • remove any copyright, proprietary, or attribution notices from the Software System; or
    • use the Software System other than in conjunction with a Device purchased, leased, or otherwise properly commercially acquired from Vendor or on a mobile Device on which an Application is used and installed with Vendor's authorization.
  5. Your Obligations. You hereby agree that You will:
    • institute and maintain appropriate security measures to safeguard the Client Software and access to the Software Service, or any other information designated by Vendor as confidential, from access or use by any third party;
    • retain the Client Software and any authorized copies thereof in Your possession under Your effective control;
    • ensure that all copyright, proprietary, or attribution rights notices on the Client Software are retained thereon and reproduced and applied to any authorized copies of the same;
    • install, maintain, and properly use reasonable security features such as firewalls and security systems to protect the Software System;
    • notify Vendor immediately if You become aware of any unauthorized use of the whole or any part of the Software System; and
    • indemnify, defend, and hold Vendor harmless against all damages, expenses (including, without, limitation attorneys' fees), costs, judgments, and losses that result from Your unauthorized use of or modification to the Software System.
  6. Vendor Replacement of Software. Vendor shall have the right to replace or change all or any part of the Software System so long as the revised Software System provides at least substantially the same functionality as the Software System originally provided to or accessed by You.
  7. Selection and Nature of Software System. You accept full responsibility for the selection of the Software System to achieve its intended results. You acknowledge that data collected and provided by the Software System is subject to the possibility of machine errors, omissions, delays, and losses, including inadvertent loss of data or damage to media that may give rise to loss or damage. You agree that Vendor is not liable for any such selection, errors, omissions, delays, or losses. You also agree to comply with all applicable laws pertaining to the use, transmission, and disclosure of data.
  8. Other Services. Unless specified otherwise in a written agreement between You and Vendor, You agree and acknowledge that Vendor shall not be required to provide any support, maintenance, data management, repair, installation, configuration, or re-configuration services for the Software System, the Devices, or an Application. In addition, except for any modifications required under the Limited Warranty in accordance with Section 5.1, Vendor shall not be required to provide any updates, error corrections, enhancements, or new releases of the Software System to You. Vendor may choose in its sole discretion to offer such updates, error corrections, enhancement, or new releases to You, possibly at an additional fee to be determined by Vendor. If such updates, error corrections, enhancements, or new releases are properly installed, downloaded, accessed, or used by You, such updates, error corrections, enhancements, or new releases shall be considered to be included in the Software System and shall be subject to the terms and conditions of this Agreement.

TERM AND TERMINATION

  1. Vendor Termination. Vendor may terminate this Agreement and the licenses and rights granted hereunder to You if:
    • You are in breach of any term of this Agreement including, without limitation, Sections 2.2, 2.3, 2.4, or 2.5; or
    • You fail to pay any amounts owed to Vendor for the supply, support, or maintenance of the Software System, or any amounts owed to Vendor under any agreement related to the Software System or the Devices (or parts, services, or accessories thereof).
  2. Your Termination. You may terminate this Agreement at any time provided You provide written notice to Vendor, immediately and on a going forward basis cease all downloading, installing, access, and use of the Software System, and return to Vendor the Device upon which the Client Software resides if provided by Vendor.
  3. Effects of Termination. Upon termination of this Agreement for any reason:
    • all rights, privileges, and licenses granted to You under this Agreement shall cease;
    • You shall immediately and on a going forward basis cease all downloading, installing, access, and use of the Software System and shall uninstall and disable all Applications;
    • You shall immediately pay to Vendor any amounts owed to Vendor for the supply, support, or maintenance of the Software System or any amounts owed to Vendor under any agreement related to the Software System or the Devices (or parts, services, or accessories thereof);
    • Vendor shall no longer be obligated to provide any support or maintenance of the Software System under this Agreement or any other agreement between You and Vendor;
    • Vendor shall be permitted to de-activate or block any access to the Authorized Server to prevent Your further downloading, installing, access, and use of the Software System; and
    • Any termination of this Agreement shall not affect the continuing obligations of the parties described in Sections 2.2, 2.4, 2.5, 2.7, 3.3, 4.1, 5.5, 5.6, 6.1, 6.2, and 7.1-7.10, which shall survive termination

OWNERSHIP

  1. Your Ownership Acknowledgement. You agree and acknowledge that Vendor owns all right, title, and interest in and to the Software System. The Software System may contain structures, data, concepts formulas, algorithms, and code, which are the valuable trade secrets owned by Vendor, and is also protected by copyright, trade secret laws, moral rights provisions, and international treaty provisions. Vendor reserves all rights not expressly granted to You in this Agreement.

LIMITED WARRANTY AND DISCLAIMERS OF WARRANTY

  1. Limited Warranty. Vendor warrants that the Software System will perform substantially in accordance with Vendor's then-current specifications therefor as published by Vendor for a period of thirty (30) days ('Warranty Period') from the date of first download, installation, access, or use by You (hereinafter the 'Limited Warranty').
  2. Limited Nature of Warranty. The Limited Warranty is void if the failure of the Software System to meet Vendor's then-current specifications is due to software or hardware products not provided by Vendor, Your failure to properly maintain Your site or equipment on which the Software System is downloaded, installed, used, or accessed, or Your misuse, improper use, or unauthorized modification of the Software System.
  3. IMPLIED WARRANTY OR CONDITION. IF AN IMPLIED WARRANTY OR CONDITION IS CREATED BY YOUR JURISDICTION AND APPLICABLE LAW PROHIBITS DISCLAIMER OF SUCH AN IMPLIED WARRANTY OR CONDITION, YOU SHALL ALSO HAVE SUCH AN IMPLIED WARRANTY OR CONDITION, BUT ONLY AS TO DEFECTS DISCOVERED DURING THE THIRTY (30) DAY PERIOD OF THIS LIMITED WARRANTY. FOR ANY DEFECTS DISCOVERED AFTER THE THIRTY (30) DAY PERIOD, THERE IS NO WARRANTY OR CONDITION OF ANY KIND.
  4. SUPPLEMENT OR UPDATES. ANY SUPPLEMENTS OR UPDATES TO THE SOFTWARE SYSTEM, INCLUDING, WITHOUT LIMITATION, ANY (IF ANY) FIXES PROVIDED TO YOU AFTER THE EXPIRATION OF THE THIRTY (30) DAY LIMITED WARRANTY PERIOD, ARE NOT COVERED BY ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED, OR STATUTORY.
  5. SOLE WARRANTY. THE LIMITED WARRANTY SET FORTH ABOVE IS THE ONLY WARRANTY MADE TO YOU AND IS PROVIDED IN LIEU OF ANY OTHER EXPRESS WARRANTIES OR SIMILAR OBLIGATIONS (IF ANY) CREATED BY ANY ADVERTISING, DOCUMENTATION, PACKAGING, OR OTHER COMMUNICATIONS. EXCEPT FOR THE LIMITED WARRANTY SET FORTH ABOVE AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, VENDOR PROVIDES THE SOFTWARE SYSTEM 'AS IS' AND WITH ANY AND ALL FAULTS, AND HEREBY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES, DUTIES, OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF RELIABILITY OR AVAILABILITY, OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, OF WORKMANLIKE EFFORT, OR OF LACK OF VIRUSES.
  6. NO OTHER WARRANTIES. VENDOR PROVIDES NO WARRANTIES OR CONDITIONS OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, OR NON-INFRINGEMENT.

REMEDY FOR BREACH OF WARRANTY

  1. Exclusive Remedy. Vendor's entire liability and Your exclusive remedy for any breach of the Limited Warranty and for any other breach of the Agreement by Vendor or for any other liability relating to the Software System on behalf of Vendor shall be, at Vendor's option, limited to one of the following: (a) return of the amount paid (if any) for the Software System; or (b) repair or replacement of the Software System that does not meet the Limited Warranty or causes such breach. You will receive the remedy elected by Vendor without charge, except that You are responsible for any expenses that Vendor may reasonably incur in delivering the elected remedy to You. Any replacement Software System provided under the Limited Warranty will be warranted for the remainder of the original warranty period or thirty (30) days, whichever is longer, and Vendor will use commercially reasonable efforts to provide the remedy to You within a commercially reasonable time of Your compliance with Vendor's warranty remedy procedures.
  2. NO OTHER DAMAGES. EXCEPT FOR ANY REFUND ELECTED BY VENDOR, YOUR ARE NOT ENTITLED TO ANY DAMAGES, INCLUDING, BUT NOT LIMITED TO, CONSEQUENTIAL DAMAGES, IF THE SOFTWARE SYSTEM DOES NOT MEET VENDOR'S LIMITED WARRANTY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL VENDOR BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR LOSS OF PRIVACY, OR FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SOFTWARE SYSTEM OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF CONTRACT, OR BREACH OF WARRANTY OF VENDOR, AND EVEN IF VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

MISCELLANEOUS

  1. Trademarks. Clusio and Clusio, as well as other marks, are the trademarks and/or trade names of Vendor, and You are not granted any rights to use such trademarks or trade names except to the extent such trademarks or trade names are placed on Devices or the Software System by Vendor.
  2. Relationship of Parties. Nothing contained in this Agreement is intended to implicitly, or is to be construed to, constitute a partnership in the legal sense. No party hereto shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement, or undertaking with any third party.
  3. Force Majeure. Neither party will be liable for any failure or delay in performing any obligation under this Agreement that is due to causes beyond its reasonable control and without its fault or negligence, including, without limitation, acts of God, natural catastrophes, governmental acts, or interruption of power or of other essential services or supplies.
  4. No Waiver. No delay or omission by either party hereto to exercise any right or power occurring upon any noncompliance or default by the other party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof. A waiver by either of the parties hereto of any of the covenants, conditions, or agreements to be performed by the other shall not be construed to be a waiver of any succeeding breach thereof or of any covenant, condition, or agreement contained herein.
  5. Entire Agreement. This Agreement (and the other agreements referenced herein) constitutes the entire agreement between the parties, and there are no understandings or agreements relative hereto other than those that are expressed herein. No change, amendment, waiver, or discharge hereof shall be valid unless in writing and properly executed by the party against whom such change, waiver, or discharge is sought to be enforced.
  6. Severability Enforcement. The invalidity of any portion of this Agreement shall not affect the validity, force, or effect of the remaining portions hereof. If it is ever held that any restriction hereunder is too broad to permit enforcement of such restriction to its fullest extent, each party agrees that a court of competent jurisdiction may enforce such restriction to the maximum extent permitted by law, and each party hereby consents and agrees that such scope may be judicially modified accordingly in any action, suit, or proceeding brought to enforce such restriction.
  7. Parties Benefited; Assignment. The provisions of this Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns, but You may not assign this Agreement or any rights hereunder without the express written consent of Vendor, and any such assignment or attempted assignment without Vendor's consent shall be void. Vendor may freely assign its rights and delegate its duties under this Agreement without Your consent.
  8. Neutral Interpretation. This Agreement shall be deemed to have been drafted jointly by the parties, and no rule of construction or interpretation shall apply against any particular party based on a contention that the Agreement was drafted by one of the parties.
  9. Applicable Law. This Agreement is governed by and shall be construed in accordance with the law of the State of Delaware.
  10. Jurisdiction. You irrevocably agree to submit to the exclusive jurisdiction of the federal and state courts located in the Northern District of Ohio with respect to any action, suit, or proceeding commenced by You or Vendor arising out of or in connection with this Agreement (including non-contractual disputes or claims). You irrevocably and unconditionally waive any objection to the laying of venue of any such action, suit, or proceeding in the federal or state courts located in the Northern District of Ohio and hereby further irrevocably and unconditionally waive and agree not to plead or claim in any such court that any such action, suit, or proceeding brought in any such court has been brought in an inconvenient forum.