Strike Graph Terms of Service

Updated May 2024

THESE STRIKE GRAPH TERMS OF SERVICE ("TERMS") ARE A LEGAL AGREEMENT BETWEEN YOU ("CUSTOMER") AND STRIKE GRAPH INC. ("STRIKE GRAPH"). BY EXECUTING A STRIKE GRAPH ORDER FORM THAT INCLUDES THIS AGREEMENT BY REFERENCE OR BY USING THE PLATFORM OR SERVICES, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS REVIEWED AND ACCEPTS THESE TERMS. IF YOU ARE AGREEING TO THESE TERMS AS AN INDIVIDUAL, CUSTOMER REFERS TO YOU INDIVIDUALLY. IF YOU ARE AGREEING TO THESE TERMS AS A REPRESENTATIVE OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND CUSTOMER REFERS TO THAT ENTITY. IF YOU DO NOT AGREE WITH ALL OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THE PLATFORM. STRIKE GRAPH MAY MAKE CHANGES TO THE PLATFORM AND SERVICES AT ANY TIME. IN ADDITION, STRIKE GRAPH MAY MAKE CHANGES TO THESE TERMS AT ANY TIME, AND SUCH MODIFICATIONS SHALL BE EFFECTIVE IMMEDIATELY UPON NOTICE, WHICH MAY BE ACCOMPLISHED BY POSTING THE MODIFIED AGREEMENT ON THE PLATFORM OR STRIKE GRAPH WEBSITE AND, ONLY FOR MATERIAL CHANGES, IF YOU HAVE AN ACCOUNT WITH STRIKE GRAPH, BY STRIKE GRAPH NOTIFYING YOU OF SUCH MATERIAL CHANGES VIA EMAIL. IF YOU DO NOT AGREE TO THE MATERIAL CHANGES IN THESE TERMS, THEN YOU MAY CANCEL YOUR ACCOUNT BY SENDING AN EMAIL TO ACCOUNTMANAGEMENT [AT] STRIKEGRAPH [DOT] COM STATING YOUR INTENT TO CANCEL. YOUR USE OF THE PLATFORM AND SERVICES FOLLOWING SUCH NOTICE SHALL BE DEEMED YOUR ACCEPTANCE OF SUCH MATERIAL CHANGES. 

PLEASE NOTE: THESE TERMS CONTAINS A DISPUTE RESOLUTION AND ARBITRATION PROVISION THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS. 

1. DEFINITIONS.
   1. "Ancillary Services" means implementation, training, consulting, or other professional services that Strike Graph (or a third party on Strike Graph's behalf) may perform as described in an applicable Order Form.
   2. "Authorized Users" means Customer's employees, consultants, contractors, and/or agents: (a) who are authorized by Customer to access and use the Platform on Customer's behalf, and (b) who have been supplied user identifications and passwords for such purpose by Customer (or by Strike Graph at Customer's request).
   3. "Customer Data" means all information, content, and other data submitted, stored, posted, displayed, or otherwise transmitted by or on behalf of Customer or its Authorized Users to Strike Graph.
   4. "Customer System" means Customer's internal computers, servers, and other equipment and software used to access and use the Platform.
   5. "Documentation" means the printed or electronic user instructions and help files made available by Strike Graph for use with the Platform, as may be updated from time to time by Strike Graph.
   6. "Intellectual Property Rights" means all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.
   7. "Malicious Code" means viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents, or programs.
   8. "Order Form" means the Strike Graph ordering documents required for the purchase of the Platform and Services that are entered into by the parties from time to time, including any mutually agreed modifications, supplements, and addenda thereto.
   9. "Platform" means the hosted software platform provided by Strike Graph.
   10. "Services" means the Ancillary Services and Support Services.
   11. "Subscription Term" means the period for which Customer is permitted to access and use the Platform and/or receive Ancillary Services and Support Services. The applicable Subscription Term shall be set forth in the applicable Order Form.
   12. "Support Services" means the support and maintenance services provided by Strike Graph, as further described in the applicable Order Form.
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3. ORDER FORMS; LICENSES; RESTRICTIONS. 
   1. Order Forms. Subject to the terms of this Agreement, Customer may order the Platform and Services by entering into one or more Order Forms. 
   2. Future Functionality. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features, nor dependent on any oral or written public comments made by Strike Graph regarding any future functionality or features.
   3. Access and Use License. Subject to Customer's compliance with the terms and conditions contained in these Terms, Strike Graph, during the relevant Subscription Term, hereby grants Customer and, if applicable, its Authorized Users, a limited, non-exclusive, non-transferable right to access and use the Platform and Services in accordance with the Documentation in each case solely for Customer's internal business purposes and not for the benefit of any other person or entity. Customer's use of the Platform and Services may be subject to certain limitations – for example, certain functionality or the number of Authorized Users permitted to use the Platform and Services may be limited, as further described in the applicable Order Form. Strike Graph does not provide any custom deliverables or services under these Terms which would qualify as work-made-for-hire.
   4. Restrictions. Customer shall not, directly or indirectly, and Customer shall not permit any Authorized User or third party to: (a) reverse engineer, decompile, disassemble, or otherwise attempt to discover the object code, source code, or underlying ideas or algorithms of the Platform or Services; (b) modify, translate, or create derivative works based on any element of the Platform or Services or any related Documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Platform or services; (d) use the Platform or Services for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer and Authorized Users; (e) remove any proprietary notices from the Documentation; (f) use the Platform or Services for any purpose other than its intended purpose; (g) interfere with or disrupt the integrity or performance of the Platform or Services; (h) introduce any open source software into the Platform or Services; or (i) attempt to gain unauthorized access to the Platform or Services, or related systems or networks, or to the content and data uploaded by other subscribers.
   5. Reservation of Rights. Except as expressly granted in these Terms, there are no other licenses granted to Customer or any Authorized User, express, implied, or by way of estoppel. All rights not granted in these Terms are reserved by Strike Graph.
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5. THIRD PARTY HOSTING. Strike Graph may use the services of one or more third parties to deliver all or part of the Platform and Services. Strike Graph will pass through any warranties to the extent that Strike Graph receives any from its then current third-party service provider that it can provide to Customer. Customer agrees to comply with any acceptable use policies and other terms of any third-party service provider that are provided or otherwise made available to Customer from time to time.
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7. ACCOUNTS AND PASSWORDS.
   1. Accounts. Customer and all Authorized Users will be required to have an account with Strike Graph before being permitted to access and use the Platform. To create an account, the user must complete the registration process by providing Strike Graph with current, complete, and accurate information. Authorized Users may change, correct, or remove their account information by logging into the account directly and making the desired changes. Strike Graph reserves the right to terminate any account for which the provided information is inaccurate, incomplete, or not current.
   2. Passwords. Customer and its Authorized Users shall be responsible for maintaining the confidentiality of all user logins and passwords and for ensuring that each user login and password is used only by the person to which it was issued. Customer is solely responsible for any and all access and use of the Platform that occurs using any Authorized User's account. Customer shall not share passwords, and shall restrict its Authorized Users from sharing passwords. Customer agrees to immediately notify Strike Graph of any unauthorized use of any account or login and password issued to Customer and/or its Authorized Users. Strike Graph shall have no liability for any loss or damage arising from Customer's or its Authorized Users' failure to comply with the Terms.
   3. No Circumvention of Security. Neither Customer nor any Authorized User may circumvent or otherwise interfere with any user authentication or security of the Platform. Customer will immediately notify Strike Graph of any breach, or attempted breach, of security known to Customer. 
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9. CUSTOMER OBLIGATIONS.
   1. Customer System. Customer is responsible for (a) obtaining, deploying, and maintaining the Customer System; (b) contracting with third party ISP, telecommunications, and other service providers to access and use the Platform via the Internet; and (c) paying all third party fees and access charges incurred in connection with the foregoing. Except as specifically set forth in these Terms or a separate agreement between Customer and Strike Graph referencing these Terms, Strike Graph shall not be responsible for supplying any hardware, software, or other equipment to Customer under these Terms.
   2. Acceptable Use. Customer shall be solely responsible for its actions and the actions of its Authorized Users while using the Platform. Customer acknowledges and agrees: (a) to abide by all local, state, national, and international laws and regulations applicable to Customer's use of the Platform, including without limitation the provision and storage of Customer Data; (b) not to send or store data on or to the Platform which violates the rights of any individual or entity established in any jurisdiction; (c) not to upload in any way any information or content that contain Malicious Code or data that may damage the operation of the Platform or another's computer or mobile device; (d) not to upload in any way any data regarding an individual's financial or economic identity, sexual orientation, religious beliefs, medical or physical identity, or an individual's first name and last name, or first initial and last name, in combination with any one or more of the following data elements that relate to such individual: Social Security number, driver's license number or state-issued identification card number, financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number, or password, that would permit access to an individual's financial account; (e) not to use the Platform for illegal, fraudulent, unethical, or inappropriate purposes; (f) not to interfere or disrupt networks connected to the Platform or interfere with other ability to access or use the Platform; (g) not to distribute, promote, or transmit through the Platform any unlawful, harmful, obscene, pornographic, or otherwise objectionable material of any kind or nature; (h) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (i) not to interfere with another user's use and enjoyment of the Platform; (j) not to use the Platform in any manner that impairs the Platform, including without limitation the servers and networks on which the Platform is provided; (k) to comply with all regulations, policies, and procedures of networks connected to the Platform and Strike Graph's service providers; and (l) to use the Platform only in accordance with the Documentation. Customer acknowledges and agrees that Strike Graph neither endorses any Customer communications or Customer Data, nor does Strike Graph assume any responsibility for any offensive material contained therein, any infringement of third party Intellectual Property Rights arising therefrom, or any crime facilitated thereby. Strike Graph may, but is not required to, remove any violating content posted or stored using the Platform or transmitted through the Platform, without notice to Customer. Notwithstanding the foregoing, Strike Graph does not guarantee and is not obligated to verify, authenticate, monitor, edit, or remove the Customer Data or any other information or data input into or stored in the Platform for completeness, integrity, legality, quality, accuracy, compliance with these Terms, or otherwise. Customer shall be responsible and liable for the completeness, integrity, legality, quality and accuracy, of Customer Data and other information input into the Platform. Customer shall be solely responsible for ensuring compliance with applicable laws and regulations in its use of the Platform. 
   3. Accuracy of Customer's Contact Information; Email Notices. Customer agrees to provide accurate, current, and complete information as necessary for Strike Graph to communicate with Customer from time to time regarding the Platform and Services, issue invoices or accept payment, or contact Customer for other account-related purposes. Customer agrees to keep any account information current and inform Strike Graph of any changes in Customer's legal business name, address, email address, and phone number. Customer agrees to accept emails from Strike Graph at the email addresses specified by it for login purposes. In addition, Customer agrees that Strike Graph may rely and act on all information and instructions provided to Strike Graph by Authorized Users from the above-specified email addresses.
   4. Temporary Suspension. Any use of the Platform and/or Services in breach of these Terms by Customer or Authorized Users that in Strike Graph's judgment threatens the security, integrity, or availability of Strike Graph's Platform and/or Services, may result in the immediate suspension of access to the Platform and/or Services, however Strike Graph will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.
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11. AVAILABILITY; SECURITY.
    1. Availability. Subject to the terms and conditions of these Terms, Strike Graph will use commercially reasonable efforts to make the Platform available with minimal downtime 24 hours a day, 7 days a week; provided, however, that the following are excepted from availability commitments: (a) planned downtime, or (b) unavailability caused by circumstances beyond Strike Graph's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, or other labor problems, or Internet service provider failures or delays. 

1. Enhancements. The Platform and Services are regularly updated and enhanced using a continuous delivery model during the Subscription Term. In some cases Strike Graph may deprecate, diminish, or remove certain features and functionality, but such changes will not have a materially adverse impact on Customer’s use of the Platform and Services unless Customer consents to such change. Certain enhancements to the Platform made generally available at no cost to all subscribers during the applicable Term will be made available to Customer at no additional charge. However, the availability of some new enhancements to the Platform may require the payment of additional fees, and Strike Graph will determine in its sole discretion whether access to any other such new enhancements will require an additional fee. These Terms will apply to, and the Platform includes, any enhancements, updates, upgrades, and new modules to the Platform provided in connection therewith and subsequently provided by Strike Graph to Customer hereunder.

1. Security; Privacy Policy. Strike Graph will use commercially reasonable efforts to maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of Customer Data in a manner consistent with what Strike Graph supplies generally to its other subscribers. Please review Strike Graph's privacy policy, which is available at https://www.strikegraph.com/privacy (the "Privacy Policy") which further explains how Strike Graph collects and uses the Customer Data and other information that Strike Graph collects through use of the Platform. 
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2. ANCILLARY SERVICES; PERSONNEL; CUSTOMER RESPONSIBILITIES.
   1. Ordering Ancillary Services. Strike Graph shall use commercially reasonable efforts to perform the Ancillary Services as set forth in applicable Order Forms. Each such Order Form will include, at a minimum: (a) a description of the Ancillary Services, (b) the schedule for the provision of Ancillary Services, and (c) the applicable fees and payment terms for such Ancillary Services. Order Forms that include Ancillary Services (including but not limited to attestation and assessment services) will also contain additional terms and conditions that apply to the provision of such Ancillary Services. Such additional terms are incorporated herein by reference. Strike Graph and Customer shall cooperate to enable Strike Graph to perform the Ancillary Services set forth in each applicable Order Form. In addition, Customer shall perform any Customer obligations specified in each Order Form.
   2. Personnel. Strike Graph shall assign employees, consultants, and subcontractors with qualifications suitable for the work described in the relevant Order Form. Strike Graph may replace or change employees, consultants and/or subcontractors in Strike Graph's sole discretion with other suitably qualified employees, consultants, and/or subcontractors.
   3. Customer Responsibilities. Customer shall have an active Subscription Term and be in good standing. Customer shall make available in a timely manner at no charge to Strike Graph all data, documentation, and/or other information and resources of Customer required for the performance of the Ancillary Services ("Customer-Furnished Items") as specified in the applicable Order Form or requested by Strike Graph and/or the consultants and subcontractors performing the Ancillary Services. Customer shall be responsible for, and assumes the risk of, any problems resulting from, the content, accuracy, completeness, and consistency of all such data, materials, and information supplied by Customer. Customer shall provide, at no charge to Strike Graph, access to premises, work sites, and/or equipment solely to the extent reasonably required to perform the Ancillary Services. Customer hereby grants to Strike Graph and Strike Graph's designated consultants and subcontractors a non-exclusive, worldwide, royalty-free, fully paid-up license to use, publicly perform, publicly display, modify, prepare derivative works of, reproduce, make, have made, import and otherwise exploit each item of the Customer-Furnished Items as reasonably required for the performance of the Ancillary Services.
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4. FEES AND PAYMENT.
   1. Fees. Customer agrees to pay all applicable fees, as specified in the Order Form, using one of the payment methods Strike Graph supports. Except as otherwise specified in these Terms, (a) fees are based on the Platform and Services purchased, regardless of actual usage, and (b) payment obligations are non-cancelable and fees paid are non-refundable. Subscription fees are based on annual periods that begin on the Subscription Term start date and each anniversary thereof. All amounts payable under these Terms will be made without setoff or counterclaim, and without any deduction or withholding.
   2. Payment. Billing terms shall be specified in the Order Form. If Customer elects to pay by direct debit, Strike Graph or Strike Graph's third-party payment processor will charge the Customer on the date as specified in the Order Form. By providing a payment method, Customer expressly authorizes Strike Graph and/or Strike Graph's third-party payment processor to charge the applicable fees on said payment method as well as Taxes and other charges incurred thereto. Customer agrees that Strike Graph may invoice Customer for any unpaid fees, including without limitation any amounts owed by Customer that cannot be processed. Customer is responsible for providing complete and accurate billing and contact information to Strike Graph and notifying Strike Graph of any changes to such information. Customer agrees to pay all invoiced amounts within fifteen (15) calendar days of the invoice date, unless otherwise specified in the Order Forms. 
   3. AUTOMATIC RENEWAL: UNLESS OTHERWISE SPECIFIED IN THE ORDER FORM OR CUSTOMER CANCELS SUCH SUBSCRIPTIONS AT LEAST THIRTY (30) DAYS PRIOR TO THE END OF THE THEN-CURRENT SUBSCRIPTION TERM, STRIKE GRAPH WILL AUTOMATICALLY RENEW SUBSCRIPTIONS FOR THE PLATFORM AND SERVICES ON THE FIRST BUSINESS DAY FOLLOWING THE END OF THE SUBSCRIPTION TERM AND, AS AUTHORIZED BY CUSTOMER DURING THE REGISTRATION PROCESS, WILL CHARGE CUSTOMER'S PAYMENT METHOD, AS SPECIFIED IN THE ORDER FORM WITH THE APPLICABLE ANNUAL SUBSCRIPTION FEE AND ANY TAXES THAT MAY BE IMPOSED ON CUSTOMER'S PAYMENT. EACH RENEWAL PERIOD IS FOR ONE (1) YEAR. 
   4. Overdue Charges. If Strike Graph does not receive fees by the due date, then at Strike Graph's discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and (b) Strike Graph may condition future purchases of the Platform and Services on payment terms shorter than those specified in Section 8.2 (Payment).
   5. Suspension of Service. If any amounts owed by Customer are more than thirty (30) days overdue, Strike Graph may, without limiting Strike Graph's other rights and remedies, suspend Customer's and its Authorized Users' access to the Platform and suspend Services until such amounts are paid in full; provided that Strike Graph agrees that it will not exercise its rights under this Section if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
   6. Taxes. "Taxes" means all local, state, provincial, federal, or foreign taxes (including value-added, sales, or use taxes), or fees, duties or other governmental charges, resulting from these Terms or any instrument, Order Form, or agreement required hereunder, and all interest, penalties, or similar liabilities with respect thereto, except such taxes imposed on or measured by a party's net income or payroll taxes. Fees and charges imposed under these Terms shall not include Taxes except as otherwise provided herein. Customer shall be responsible for all of such Taxes. If, however, Strike Graph has the legal obligation to pay Taxes and is required or permitted to collect such Taxes for which Customer is responsible under this section, Customer shall promptly pay the Taxes invoiced by Strike Graph unless Customer has furnished Strike Graph with valid tax exemption documentation regarding such Taxes. 
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6. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
   1. Mutual Representations and Warranties. Each party represents, warrants, and covenants that: (a) it has the full power and authority to enter into these Terms and to perform its obligations hereunder; and (b) its acceptance of and performance under these Terms shall not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust. 
   2. Customer Representations and Warranties. Customer warrants that it has the right to provide the foregoing license in in these Terms with respect to any Customer-Furnished Item provided under these Terms and that neither the Customer-Furnished Items or Customer Data, nor their use for purposes of these Terms, will infringe or misappropriate any Intellectual Property Right of any third party.
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   4. Strike Graph Representations and Warranties.
      1. Platform and Services. Strike Graph warrants that the Platform as delivered to Customer will materially conform to the Documentation and specifications set forth in the applicable Order Form. Strike Graph further warrants that Strike Graph will perform the Services in a professional and workmanlike manner. Customer must notify Strike Graph of a claim under this warranty within 30 days of the date on which the condition giving rise to the claim first appears to Customer.
      2. Remedies. To the extent permitted by law, Customer's sole and exclusive remedy arising out of or in connection with a breach of warranty by Strike Graph is limited to replacement of the non-conforming portion of the Platform or re-performance of the Services, as applicable. If in Strike Graph's sole discretion replacement or re-performance is not commercially reasonable, Strike Graph may terminate the applicable portion of the Order Form and provide a refund of any prepaid unused fees for the applicable portion of the Platform or Services.
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   6. Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 9, THE PLATFORM AND SERVICES ARE PROVIDED ON AN AS-IS BASIS. STRIKE GRAPH DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY, AND IMPLIED REPRESENTATIONS AND WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE EXPRESS WARRANTIES MADE BY STRIKE GRAPH IN SECTION 9 ARE FOR THE BENEFIT OF CUSTOMER ONLY AND NOT FOR THE BENEFIT OF ANY THIRD PARTY. ANY SOFTWARE PROVIDED THROUGH THE PLATFORM IS LICENSED AND NOT SOLD.

CUSTOMER ACCEPTS FULL RESPONSIBILITY FOR ANY AND ALL DECISIONS OR TRANSACTIONS MADE BY CUSTOMER AND ITS AUTHORIZED USERS IN USING THE PLATFORM AND SERVICES. CUSTOMER ACKNOWLEDGES AND AGREES THAT (A) USE OF THE PLATFORM AND SERVICES IS AT THE SOLE RISK OF CUSTOMER AND ITS AUTHORIZED USERS; AND (B) STRIKE GRAPH SHALL NOT BE RESPONSIBLE FOR ANY INTERRUPTION IN USE OF THE PLATFORM AND SERVICES, DELAYS, OR ERRORS CAUSED BY CUSTOMER'S USE OF THE PLATFORM AND SERVICES, OR ANY PART THEREOF. CUSTOMER SHALL HOLD STRIKE GRAPH AND ITS DIRECTORS, MEMBERS, SHAREHOLDERS, OFFICERS, EMPLOYEES, AND AGENTS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, DAMAGES, LIABILITIES, COSTS, AND/OR EXPENSES (INCLUDING REASONABLE LEGAL FEES) ARISING OUT OF CUSTOMER'S USE OF THE PLATFORM AND SERVICES.

1. INDEMNIFICATION. 
   1. By Customer. Customer shall defend Strike Graph and its affiliates, licensors, and their respective officers, directors, and employees ("Strike Graph Indemnified Parties") from and against any and all actions, proceedings, claims, and demands by a third party (each a "Third-Party Claim") which arise out of or relate to: (a) a claim or threat that the Customer Data or Customer System (and the exercise by Strike Graph of the rights granted herein with respect thereto) infringes, misappropriates, or violates any third party's Intellectual Property Rights or privacy rights; or (b) Customer's use or alleged use of the Platform in violation of applicable law or other than as permitted under these Terms. Customer shall pay all damages, costs, and expenses, including attorneys' fees and costs (whether by settlement or award of by a final judicial judgment) paid to the Third Party bringing any such Third-Party Claim. Customer's obligations under this Section are conditioned upon (x) Customer being promptly notified in writing of any Third-Party Claim under this Section, (y) Customer having the sole and exclusive right to control the defense and settlement of the Third-Party Claim, and (z) Strike Graph providing all reasonable assistance (at Customer's expense and reasonable request) in the defense of such Third-Party Claim. In no event shall Strike Graph settle any such Third-Party Claim without Customer's prior written approval. Strike Graph may, at its own expense, engage separate counsel to advise Strike Graph regarding a Third-Party Claim and to participate in the defense of the claim, subject to Customer's right to control the defense and settlement.
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   3. By Strike Graph. Strike Graph shall defend Customer and its affiliates, licensors, and their respective officers, directors, and employees ("Customer Indemnified Parties") from and against any and all Third Party Claims which arise out of or relate to a claim or threat that the Platform or Services infringes, misappropriates, or violates any third party's Intellectual Property Rights or privacy rights. Strike Graph shall pay all damages, costs, and expenses, including attorneys' fees and costs (whether by settlement or award of by a final judicial judgment) paid to the Third Party bringing any such Third-Party Claim. Strike Graph's obligations under this Section are conditioned upon (x) Strike Graph being promptly notified in writing of any Third-Party Claim under this Section, (y) Strike Graph having the sole and exclusive right to control the defense and settlement of the Third-Party Claim, and (z) Customer providing all reasonable assistance (at Strike Graph's expense and reasonable request) in the defense of such Third-Party Claim. In no event shall Customer settle any such Third-Party Claim without Strike Graph's prior written approval. Customer may, at its own expense, engage separate counsel to advise Customer regarding a Third-Party Claim and to participate in the defense of the claim, subject to Strike Graph's right to control the defense and settlement.
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3. CONFIDENTIALITY. 
   1. Confidential Information. Each party (the "Receiving Party") hereby understands and acknowledges that the other party (the "Disclosing Party") has disclosed or may disclose business, technical, or financial information relating to the Disclosing Party's business (hereinafter referred to as "Confidential Information" of the Disclosing Party). Confidential Information of Strike Graph shall include any and all non-public information regarding features, functionality, and performance of the Platform. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of the Platform and Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the termination of this Agreement or any information that the Receiving Party can document (a) is or becomes generally available to the public; (b) was in its possession or known by it, prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; or (d) was independently developed without use of any Confidential Information of the Disclosing Party. Nothing in this Agreement shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall to the extent legally permissible (x) assert the confidential nature of the Confidential Information to the agency; (y) promptly notify the Disclosing Party in writing of the agency's order or request to disclose; and (z) cooperate fully with the Disclosing Party in protecting against any such disclosure and in obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.
   2. Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without the requirements of posting bond or proving actual monetary damages.
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5. PROPRIETARY RIGHTS. 
   1. Strike Graph's Platform and Services. As between Strike Graph and Customer, all right, title, and interest in the Platform, the Services, and any other Strike Graph materials furnished or made available hereunder, and all modifications and enhancements thereof, and all suggestions, ideas, and feedback proposed by Customer regarding the Platform, including all copyright rights, patent rights, and other Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Strike Graph or Strike Graph's licensors and providers, as applicable. Customer hereby does and will irrevocably assign to Strike Graph all evaluations, ideas, feedback, and suggestions made by Customer to Strike Graph regarding the Platform and Services (collectively, "Feedback") and all Intellectual Property Rights in the Feedback. 
   2. Customer Data; Customer-Furnished Items. As between Strike Graph and Customer, all right, title, and interest in the Customer Data and Customer-Furnished Items, belongs to and is retained solely by Customer. By posting, displaying, sharing, or distributing Customer Data on or through the Platform, Customer hereby grants to Strike Graph a limited, sub-licenseable, non-exclusive, royalty-free, worldwide license to reproduce, display, publicly perform, distribute, and otherwise use the Customer Data, and perform all acts with respect to the Customer Data as may be necessary for Strike Graph to provide the Platform and Services to Customer. Strike Graph may modify, copy, translate, or make any derivative works of Customer Data in connection with its provision of the Platform and Services as required to format such Customer Data for presentation within the Platform and Services, to continually improve the Platform and Services, and to develop new services and offerings.
   3. Performance Metrics. Customer acknowledges that a fundamental component of the Platform and Services is the use of machine learning and performance metrics for the purposes of providing and improving the Platform and Services. Notwithstanding anything to the contrary, Strike Graph may collect, use, aggregate, de-identify, and/or anonymize information related to Customer’s use of the Platform and Services and Customer Data to adjust Strike Graph's algorithms through machine learning techniques, monitor performance, create analytics and statistical data (and make them publicly available), or for any other purpose permitted by applicable law. Any such use of Customer Data will be anonymized and aggregated to the extent reasonably possible and will not identify Customer or its Confidential Information.
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7. LIMITATION OF LIABILITY.
   1. No Consequential Damages. NEITHER PARTY NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, EVEN IF THE PARTY OR ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE PLATFORM, ANCILLARY SERVICES, SUPPORT SERVICES AND/OR THE RESULTS THEREOF. STRIKE GRAPH WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
   2. Limits on Liability. NEITHER PARTY NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN AN AMOUNT EQUAL TO THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO STRIKE GRAPH UNDER THESE TERMS DURING THE PERIOD OF TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED.
   3. Essential Purpose. EACH PARTY ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 13 (LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
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9. TERM AND TERMINATION. 
   1. Term. The term of these Terms commence upon the execution of an applicable Order Form and continues until the expiration or termination of all Subscription Term(s), unless earlier terminated as provided in these Terms or in an applicable separate agreement between Customer and Strike Graph referencing these Terms
   2. Termination for Cause. A party may terminate these Terms upon written notice to the other party in the event the other party commits a material breach of any provision of these Terms and does not remedy such breach within thirty (30) days after receipt of notice from the other party or such other period as the parties may agree. In no event shall any termination relieve the Customer of the obligation to pay any fees payable to Strike Graph for the period prior to the effective date of termination.
   3. Effects of Termination. Upon expiration or termination of these Terms, (a) Customer's use of and access to the Platform and Strike Graph's performance of all Support Services and Ancillary Services shall cease; and (b) all fees and other amounts owed to Strike Graph shall be immediately due and payable by Customer. Strike Graph shall have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete or retain all Customer Data in its systems or otherwise in its possession or under its control. In addition, within thirty (30) days of the effective date of termination each Receiving Party shall: (a) return to the Disclosing Party, or at the Disclosing Party's option, the Receiving Party shall destroy, all items of Confidential Information (other than the Customer Data) then in the Receiving Party's possession or control, including any copies, extracts, or portions thereof, and (b) upon request shall certify in writing to Disclosing Party that it has complied with the foregoing. 
   4. Survival. The termination or expiration of the Terms will not affect any provisions of the Terms which by their nature survive termination or expiration, including this Section and Sections 1, 2.3, 2.4, 5.2, 10, 11, 12, 13, 14.3, 15 and 16, which shall survive any termination or expiration of these Terms. 
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11. NO AGENCY OR PARTNERSHIP. No agency, partnership, joint venture, or employment is created as a result of these Terms or Customer's use of any part of the Platform or Services. Neither party has any authority to bind the other party in any respect.
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13. MISCELLANEOUS.
    1. Notices. All notices which any party to these Terms may be required or may wish to give may be given by addressing them to the other party at: 1004 Commercial Ave #360, Anacortes, WA 38221, for notices sent to Strike Graph and, for notices sent to Customer, at the address currently maintained in Strike Graph's records by (a) personal delivery, (b) sending such notices by commercial overnight courier with written verification of actual receipt, (c) by email (to Strike Graph at contracts [at] strikegraph [dot] com), effective the second business day after sending by email or (d) sending them by registered or certified mail. If so mailed or otherwise delivered, such notices shall be deemed and presumed to have been given on the earlier of the date of actual receipt or three (3) days after mailing or authorized form of delivery. All communications and notices to be made or given pursuant to these Terms shall be in the English language.
    2. Governing Law and Venue. These Terms and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the United States and the State of Washington as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms. The parties further agree to waive and opt-out of any application of the Uniform Computer Information Transactions Act ("UCITA"), or any version thereof, adopted by any state of the United States in any form. Any dispute arising out of or in connection with these Terms, including but not limited to any question regarding its existence, interpretation, validity, performance, or termination, or any dispute between the parties arising from the parties' relationship created by these Terms, shall be referred to and finally resolved by arbitration with a single arbitrator administered by the American Arbitration Association under its rules. The parties shall endeavor to agree upon the sole arbitrator and jointly nominate the arbitrator. The seat, or legal place of arbitration, shall be Washington, United States. Notwithstanding the foregoing, each party has the right to pursue equitable relief in the state and federal courts located Washington, and each party agrees to the exclusive jurisdiction and venue of such courts.
    3. Publicity. Unless otherwise provided for in an Order Form, Strike Graph has the right to reference and use Customer's name and trademarks and disclose the nature of the Services provided hereunder in each case in Strike Graph business development and marketing efforts, including without limitation Strike Graph's web site.
    4. Export. The Platform utilizes software and technology that may be subject to United States and foreign export controls. Customer acknowledges and agrees that the Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Platform, Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Platform may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Customer agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Strike Graph and its licensors make no representation that the Platform is appropriate or available for use in other locations. Any diversion of the Customer Data contrary to law is prohibited. None of the Customer Data, nor any information acquired through the use of the Platform, is or will be used for nuclear activities, chemical or biological weapons, or missile projects.
    5. Compliance with Laws. The Platform and Services are of U.S. origin. Customer shall adhere to all applicable state, federal, local and international laws and treaties in all jurisdictions in which Customer uses the Platform and Services, including all end-user, end-use and destination restrictions issued by U.S. and other governments and the U.S. Export Administration Act and its associated regulations. Customer will not upload any data or information to the Service for which Customer does not have full and unrestricted rights. Notwithstanding anything to the contrary in this Agreement or any other agreement between the parties, Customer will not upload any data or information that is subject to government regulation, including without limitation, protected health information regulated under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), sensitive financial information regulated under the Gramm-Leach-Bliley Act of 1999, or any other sensitive personal information as defined by any applicable law or regulation.
    6. General. Neither party shall assign its rights hereunder, or delegate the performance of any of its duties or obligations hereunder, except to an affiliate or by merger, acquisition, sale of assets, operation of law, without the prior written consent of the other party. Any purported assignment in violation of the preceding sentence is null and void. Subject to the foregoing, these Terms shall be binding upon, and inure to the benefit of, the successors and assigns of the parties thereto. There are no third-party beneficiaries to these Terms. No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted. If any of these Terms is found invalid or unenforceable that term will be enforced to the maximum extent permitted by law and the remainder of the Terms will remain in full force. The parties are independent contractors, and nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. These Terms constitute the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral. 
    7. Force Majeure. Except for Customer's payment obligations hereunder, neither party shall be liable to the other party or any third party for failure or delay in performing its obligations under these Terms when such failure or delay is due to any cause beyond the control of the party concerned, including, without limitation, acts of God, governmental orders or restrictions, fire, or flood, provided that upon cessation of such events such party shall thereupon promptly perform or complete the performance of its obligations hereunder.
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