THESE TERMS OF SERVICE (THE "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 STRIKE GRAPH PLATFORM, 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 CUSTOMER DOES NOT AGREE WITH ALL OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE THE STRIKE GRAPH PLATFORM. STRIKE GRAPH MAY MAKE CHANGES TO THE STRIKE GRAPH PLATFORM 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 STRIKE GRAPH PLATFORM AND, IF YOU HAVE AN ACCOUNT WITH STRIKE GRAPH (AS DESCRIBED BELOW), STRIKE GRAPH NOTIFYING YOU OF SUCH CHANGES VIA EMAIL. IF YOU DO NOT AGREE TO CHANGES IN THESE TERMS, THEN CANCEL YOUR ACCOUNT BY SENDING AN E-MAIL TO ACCOUNTMANAGEMENT@STRIKEGRAPH.COM STATING YOUR INTENT TO CANCEL YOUR SUBSCRIPTION. YOUR USE OF THE STRIKE GRAPH PLATFORM FOLLOWING SUCH NOTICE SHALL BE DEEMED YOUR ACCEPTANCE OF SUCH CHANGES.
PLEASE NOTE: THESE TERMS CONTAINS A DISPUTE RESOLUTION AND ARBITRATION PROVISION THAT AFFECTS CUSTOMER’S RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES CUSTOMER MAY HAVE WITH STRIKE GRAPH.
1. DEFINITIONS.
1.1 “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.
1.2 “Authorized Purposes” means Customer’s internal business purposes, subject to any scope limitations set forth herein or in Customer’s applicable Order Form(s).
1.3 “Authorized Users” means Customer’s employees, consultants, contractors, and/or agents: (a) who are authorized by Customer to access and use the Strike Graph 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).
1.4 “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, and received and analyzed by the Strike Graph Platform.
1.5 “Customer System” means Customer’s internal computers, servers and other equipment and software used to access and use the Strike Graph Platform.
1.6 “Documentation” means the printed or electronic user instructions and help files made available by Strike Graph for use with the Strike Graph Platform, as may be updated from time to time by Strike Graph.
1.7 “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.
1.8 “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
1.9 “Open Source Software” means all software that is available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that approved by the Open Source Initiative (www.opensource.org).
1.10 “Order Form” means the Strike Graph ordering documents required for the purchase of Services that are entered into by the parties from time to time, including any mutually acceptable modifications, supplements and addenda thereto. Order Forms are incorporated herein.
1.11 “Services” means the Strike Graph Platform, Ancillary Services and Support Services.
1.12 “Strike Graph Platform” means the hosted software platform provided by Strike Graph, provided that such definition excludes any Open Source Software that may be used to provide such platform.
1.13 “Subscription Term” means the period for which Customer is permitted to access and use the Strike Graph Platform and/or receive Ancillary Services and Support Services. The applicable Subscription Term(s) shall be set forth in applicable Order Form(s).
1.14 “Support Services” means the support and maintenance services provided by Strike Graph to Strike Graph Platform subscribers, as further described in applicable Order Form(s).
2. ORDER FORMS; LICENSES; RESTRICTIONS.
2.1 Order Forms. Subject to the terms of this Agreement, Customer may order Services by entering into one or more Order Forms. 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
2.2 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 Strike Graph Platform in accordance with the Documentation in each case solely for Customer’s Authorized Purposes and not for the benefit of any other person or entity. Customer’s use of the Strike Graph Platform may be subject to certain limitations – for example, certain functionality or the number of Authorized Users permitted to use the Strike Graph Platform may be limited, as further described in the applicable Order Form.
2.3 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 Strike Graph Platform; (b) modify, translate, or create derivative works based on any element of the Strike Graph Platform or any related Documentation; (c) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the Strike Graph Platform; (d) use the Strike Graph Platform 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 Strike Graph Platform for any purpose other than its intended purpose; (g) interfere with or disrupt the integrity or performance of the Strike Graph Platform; (h) introduce any Open Source Software into the Strike Graph Platform; or (i) attempt to gain unauthorized access to the Strike Graph Platform, its related systems or networks, or to the content and data uploaded by other users.
2.4 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.
3. THIRD PARTY HOSTING. Strike Graph may use the services of one or more third parties to deliver all or part of the Strike Graph Platform. 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.
4. ACCOUNTS AND PASSWORDS.
4.1 Accounts. Customer and all Authorized Users will be required to have an account with Strike Graph before being permitted to access and use the Strike Graph Platform. To create an account, the user must complete the registration process by providing Strike Graph with current, complete and accurate information. All the information provided when registering for an account must be accurate, complete and up to date. 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 untrue, inaccurate, incomplete or not current.
4.2 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 Strike Graph Platform that occurs using any Authorized User’s account. Customer shall not share, 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 set forth in this Section.
4.3 No Circumvention of Security. Neither Customer nor any Authorized User may circumvent or otherwise interfere with any user authentication or security of the Strike Graph Platform. Customer will immediately notify Strike Graph of any breach, or attempted breach, of security known to Customer.
5. CUSTOMER OBLIGATIONS.
5.1 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 Strike Graph 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.
5.2 Acceptable Use. Customer shall be solely responsible for its actions and the actions of its Authorized Users while using the Strike Graph 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 Strike Graph Platform, including without limitation the provision and storage of Customer Data; (b) not to send or store data on or to the Strike Graph 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 Strike Graph 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 Strike Graph Platform for illegal, fraudulent, unethical or inappropriate purposes; (f) not to interfere or disrupt networks connected to the Strike Graph Platform or interfere with other ability to access or use the Strike Graph Platform; (g) not to distribute, promote or transmit through the Strike Graph 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 Strike Graph Platform; (j) not to use the Strike Graph Platform in any manner that impairs the Strike Graph Platform, including without limitation the servers and networks on which the Strike Graph Platform is provided; (k) to comply with all regulations, policies and procedures of networks connected to the Strike Graph Platform and Strike Graph’s service providers; and (l) to use the Strike Graph 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 Strike Graph Platform or transmitted through the Strike Graph 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 Strike Graph 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 Strike Graph Platform. Customer shall be solely responsible for ensuring compliance with applicable laws and regulations in its use of the Strike Graph Platform.
5.3 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 Services, issue invoices or accept payment, or contact Customer for other account-related purposes. Customer agrees to keep any online 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 e-mail 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 e-mail addresses.
5.4 Temporary Suspension. Strike Graph may temporarily suspend Customer’s or its Authorized Users’ access to the Strike Graph Platform in the event that either Customer or any of its Authorized Users is engaged in, or Strike Graph in good faith suspects Customer or any of its Authorized Users is engaged in, any unauthorized conduct (including, but not limited to any violation of these Terms). Strike Graph will attempt to contact Customer prior to or contemporaneously with such suspension; provided, however, that Strike Graph’s exercise of the suspension rights herein shall not be conditioned upon Customer’s receipt of any notification. A suspension may take effect for Customer’s entire account and Customer understands that such suspension would therefore include its Authorized Users’ accounts. Customer agrees that Strike Graph shall not be liable to Customer, Authorized Users, or any third party if Strike Graph exercises its suspension rights as permitted by this Section. Upon determining that Customer has ceased the unauthorized conduct leading to the temporary suspension to Strike Graph’s reasonable satisfaction, Strike Graph shall reinstate Customer’s and its Authorized Users’ access to and use of the Strike Graph Platform. Notwithstanding anything in this Section to the contrary, Strike Graph’s suspension of access to the Strike Graph Platform is in addition to any other remedies that Strike Graph may have under these Terms or otherwise, including but not limited to termination of these Terms for cause. Additionally, if there are repeated incidences of suspension, regardless of the same or different cause and even if the cause or conduct is ultimately cured or corrected, Strike Graph may, in its reasonable discretion, determine that such circumstances, taken together, constitute a material breach.
6. AVAILABILITY; SECURITY.
6.1 Availability. Subject to the terms and conditions of these Terms, Strike Graph will use commercially reasonable efforts to make the Strike Graph 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. Certain enhancements to the Strike Graph Platform made generally available at no cost to all users during the applicable Term will be made available to Customer at no additional charge. However, the availability of some new enhancements to the Strike Graph 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 Strike Graph Platform includes, any enhancements, updates, upgrades and new modules to the Strike Graph Platform provided in connection therewith and subsequently provided by Strike Graph to Customer hereunder.
6.2 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 users. 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 users’ use of the Strike Graph Platform.
7. ANCILLARY SERVICES.
7.1 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) any work product or other deliverables to be provided to Customer (each a “Deliverable”), (c) the schedule for the provision of Ancillary Services, and (d) 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. In the event the Ancillary Services are not performed in accordance with the terms of the applicable Order Form, Customer shall notify Strike Graph in writing no later than thirty (30) calendar days after performance of the affected Ancillary Services, Customer’s notice shall specify the basis for non-compliance with the Order Form and if Strike Graph agrees with the basis for non-compliance, then at Strike Graph’s sole option, Strike Graph shall re-perform the Ancillary Services at no additional charge to Customer or refund to Customer the applicable fees for the affected Deliverable or Ancillary Service. THE FOREGOING CONSTITUTES CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND STRIKE GRAPH’S SOLE AND EXCLUSIVE LIABILITY WITH RESPECT TO PERFORMANCE OR NON-PERFORMANCE OF THE ANCILLARY SERVICES.
7.2 Personnel.
a) Suitability. 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 its sole discretion with other suitably qualified employees or subcontractors.
7.3 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. Customer warrants that it has the right to provide the foregoing license with respect to any Customer-Furnished Item provided under these Terms and that neither the Customer-Furnished Items themselves nor their use for purposes of these Terms will infringe or misappropriate any patent right, copyright, trademark right, trade secret right, moral right, design right, database right, business process or method or other intellectual property or proprietary right of any third party. Customer agrees to defend, indemnify, and hold harmless Strike Graph from and against all claims, proceedings, liabilities, costs or damages arising from any breach of the foregoing warranty, or Strike Graph’s or its designated consultants’ and subcontractors’ use of any Customer-Furnished Item, provided that such use is in accordance with this Agreement.
8. FEES AND PAYMENT.
8.1 Fees. Customer agrees to pay all applicable fees, as specified in the Order Form(s), using one of the payment methods Strike Graph supports. Except as otherwise specified in these Terms, (a) fees are based on 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.
8.2 Payment. Billing terms shall be specified in the Order Form(s). 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(s). 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 Form(s).
8.3 IMPORTANT NOTICE – AUTOMATIC RENEWAL: UNLESS OTHERWISE SPECIFIED IN THE ORDER FORM(S) 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 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(S) WITH THE APPLICABLE ANNUAL SUBSCRIPTION FEE AND ANY TAXES (AS DEFINED BELOW) THAT MAY BE IMPOSED ON CUSTOMER’S PAYMENT. EACH RENEWAL PERIOD IS FOR ONE YEAR.
CUSTOMER MAY CANCEL ITS SUBSCRIPTION AT ANY TIME BY SENDING AN E-MAIL TO ACCOUNTMANAGEMENT@STRIKEGRAPH.COM STATING THEIR INTENT TO CANCEL THEIR SUBSCRIPTION. SUBSCRIPTION FEES ARE NOT REFUNDABLE. IF CUSTOMER CANCELS ITS SUBSCRIPTION FEWER THAN THIRTY (30) DAYS PRIOR TO THE LAST DAY OF THE THEN-CURRENT SUBSCRIPTION TERM, THE SUBSCRIPTION WILL AUTOMATICALLY RENEW AND CUSTOMER WILL NOT RECEIVE A REFUND, BUT WILL CONTINUE TO ENJOY ITS SUBSCRIPTION BENEFITS FOR THE REMAINDER OF THE SUBSCRIPTION(S) FOR WHICH IS HAS PAID.
8.4 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 Services on payment terms shorter than those specified in Section 8.2 (Payment).
8.5 Suspension of Service. If any amounts owed by Customer for the Services 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 Strike Graph Platform and suspend Ancillary 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.
8.6 Taxes. “Taxes” means all taxes, levies, imposts, duties, fines or similar governmental assessments imposed by any jurisdiction, country or any subdivision or authority thereof including, but not limited to federal, state or local sales, use, property, excise, service, transaction, privilege, occupation, gross receipts or similar taxes, in any way connected with 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. Notwithstanding the foregoing, Taxes shall not include payroll taxes attributable to the compensation paid to workers or employees and each party shall be responsible for its own federal and state payroll tax collection, remittance, reporting and filing obligations. 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. Customer shall comply with all applicable tax laws and regulations. Customer hereby agrees to indemnify Strike Graph for any Taxes and related costs paid or payable by Strike Graph attributable to Taxes that would have been Customer’s responsibility under this Section 8.6 if invoiced to Customer. Customer shall promptly pay or reimburse Strike Graph for all costs and damages related to any liability incurred by Strike Graph as a result of Customer’s non-compliance or delay with its responsibilities herein. Customer’s obligation under this Section 8.6 shall survive the termination or expiration of these Terms.
9. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
9.1 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.
9.2 Disclaimer. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 9, THE STRIKE GRAPH PLATFORM, ANCILLARY SERVICES AND SUPPORT SERVICES ARE PROVIDED ON AN AS-IS BASIS. CUSTOMER’S USE AND RECEIPT OF THE STRIKE GRAPH PLATFORM, ANCILLARY SERVICES AND SUPPORT SERVICES IS AT ITS OWN RISK. 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 STRIKE GRAPH PLATFORM IS LICENSED AND NOT SOLD.
NO AGENT OF STRIKE GRAPH IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF STRIKE GRAPH AS SET FORTH HEREIN. STRIKE GRAPH DOES NOT WARRANT THAT: (A) THE USE OF THE STRIKE GRAPH PLATFORM WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT IT WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE STRIKE GRAPH PLATFORM WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (E) THE SERVICES WILL BE ERROR-FREE OR THAT ERRORS OR DEFECTS IN THE STRIKE GRAPH PLATFORM WILL BE CORRECTED; OR (F) THE SERVER(S) THAT MAKE THE STRIKE GRAPH PLATFORM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. STRIKE GRAPH IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
CUSTOMER ACCEPTS FULL RESPONSIBILITY FOR ANY AND ALL DECISIONS OR TRANSACTIONS (INCLUDING, WITHOUT LIMITATION, ANY INVESTMENT DECISIONS, PURCHASES OR TRANSACTIONS) MADE BY CUSTOMER AND ITS AUTHORIZED USERS IN USING THE SERVICES. CUSTOMER ACKNOWLEDGES AND AGREES THAT (a) USE OF THE SERVICES IS AT THE SOLE RISK OF CUSTOMER AND ITS AUTHORIZED USERS; (b) STRIKE GRAPH SHALL NOT BE RESPONSIBLE FOR ANY INTERRUPTION IN USE OF THE SERVICES, DELAYS OR ERRORS CAUSED BY CUSTOMER'S USE OF THE SERVICES, OR ANY PART THEREOF; (C) STRIKE GRAPH IS NOT A BROKER AND IS NOT PROVIDING ANY INVESTMENT ADVICE, IS NOT EXECUTING, ACCEPTING OR DIRECTING ANY TRADES FOR OR ON BEHALF OF ANY PERSON OR ENTITY, IS NOT PROVIDING ANY CLEARING SERVICES, IS NOT PROVIDING ANY TRADE OR ORDER CONFIRMATION AND IS NOT PROVIDING ANY SERVICES THAT REQUIRE LICENSING OR REGISTRATION WITH ANY REGULATORY BODY OR EXCHANGE; AND (D) STRIKE GRAPH SHALL NOT BE RESPONSIBLE FOR (i) THE PROPER EXECUTION OR CLEARING OF ANY ORDER SENT USING THE SERVICES OR (ii) THE MANAGEMENT AND OVERSIGHT OF ANY AND ALL ORDERS PLACED, TAKEN AND/OR SUBMITTED BY CUSTOMER, INCLUDING, WITHOUT LIMITATION, THE CANCELLATION OF ANY SUCH ORDERS AND/OR THE OPENING AND CLOSING OF ANY TRADING ACCOUNTS. 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 SERVICES INCLUDING, WITHOUT LIMITATION, THE TRANSMISSION OF ANY ORDER USING THE SERVICES.
10. INDEMNIFICATION. 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 Strike Graph 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.
11. CONFIDENTIALITY.
11. 1Confidential 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 Strike Graph 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 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 (x) assert the confidential nature of the Confidential Information to the agency; (y) immediately 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.
11.2 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 bond and without the necessity of showing actual monetary damages.
12. PROPRIETARY RIGHTS.
12.1 Strike Graph Platform. As between Strike Graph and Customer, all right, title and interest in the Strike Graph Platform 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 Strike Graph 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 Strike Graph Platform (collectively, “Feedback”) and all Intellectual Property Rights in the Feedback.
12.2 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 Strike Graph Platform, Customer hereby grants to Strike Graph a limited, sublicenseable 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 Services to Customer. Strike Graph may modify, copy, translate or make any derivative works of Customer Data in connection with its provision of the Strike Graph Platform as required to format such Customer Data for presentation within the Strike Graph Platform, to continually improve the Strike Graph Platform and to develop new services and offerings.
12.3 Aggregated Statistics. Notwithstanding anything else in these Terms or otherwise, Strike Graph may monitor Customer’s use of the Services and use Customer Data and other data and information related to such use, in an aggregate and anonymous manner, including to compile statistical and performance information related to Strike Graph Platform and its users (“Aggregated Statistics”). As between Strike Graph and Customer, all right, title and interest in the Aggregated Statistics and all Intellectual Property Rights therein, belong to and are retained solely by Strike Graph. Customer acknowledges that Strike Graph will be compiling Aggregated Statistics based on Customer Data and information input by other customers into the Strike Graph Platform and Customer agrees that Strike Graph may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Customer or its Confidential Information.
12.4 Pre-Existing Intellectual Property. As between Customer and Strike Graph, Strike Graph shall retain all right, title and interest (including all intellectual property rights) in and to any Pre-Existing Intellectual Property. Inclusion of any Pre-Existing Intellectual Property in a Deliverable does not change its character as Pre-Existing Intellectual Property. Customer will not obtain any rights in Pre-Existing Intellectual Property other than to use the Pre-Existing Intellectual Property as incorporated into a Deliverable, in conjunction with Customer’s permitted use of such Deliverable. For purposes of this Agreement, the term “Pre-Existing Intellectual Property” means the following, whether developed by Strike Graph and/or its designated consultants and subcontractors in the course of performing the Ancillary Services under this Agreement or independently of this Agreement: (a) software programs, specifications, algorithms or other tangible property (including all intellectual property rights embodied therein) developed by Strike Graph and/or its consultants and subcontractors; (b) any business methods, methodologies, processes, techniques, know-how or other intangible property (including all intellectual property rights therein) which are developed by Strike Graph and/or its consultants and subcontractors; and (c) any derivative works, enhancements, improvements and/or modifications to any of the foregoing items listed in (a) or (b) above.
12.5 Deliverables. Subject to Customer’s compliance with these Terms and Strike Graph’s and its designated consultants’ and subcontractors’ ownership of Pre-Existing Intellectual Property, Customer shall own all Deliverables provided as a result of the performance of Ancillary Services. Notwithstanding any other provision of these Terms: (i) nothing herein shall be construed to assign or transfer any Intellectual Property Rights in the proprietary tools, software, templates, libraries, know-how, techniques and expertise (“Tools”) used by Strike Graph and/or its designated consultants and subcontractors to develop the Deliverables, and to the extent such Tools are delivered with or as part of the Deliverables, they are licensed, not assigned, to Customer; and (ii) the term “Deliverables” shall not include the Tools.
13. LIMITATION OF LIABILITY.
13.1 No Consequential Damages. NEITHER STRIKE GRAPH 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 STRIKE GRAPH 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 STRIKE GRAPH 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.
13.2 Limits on Liability. NEITHER STRIKE GRAPH 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 SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED.
13.3 Essential Purpose. CUSTOMER 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.
14. TERM AND TERMINATION.
14.1 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
14.2 Termination for Cause. A party may terminate these Terms upon written notice to the other party in the event the other party (a) files a petition for bankruptcy or has a petition for bankruptcy filed against it that is not dismissed within sixty (60) days after filing or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or (b) 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.
14.3 Termination for Convenience. Strike Graph shall have the right to terminate any Subscription Term for convenience on at least thirty (30) days prior written notice to Customer. If Strike Graph exercises such termination right, Strike Graph shall refund to customer the amount of any pre-paid fees for the terminated Subscription Term.
14.4 Effects of Termination. Upon expiration or termination of these Terms, (a) Customer’s use of and access to the Strike Graph Platform and Strike Graph's performance of all Support Services and Ancillary Services shall cease; (b) Customer and its Authorized Users shall cease all use of and destroy any copies of images shared by other users of the Strike Graph Platform that Customer has downloaded; and (c) 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 ten (10) 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.
14.5 Survival. This Section and Sections 1, 2.3, 2.4, 5.2, 10, 11, 12, 13, 14.4, 15 and 16 shall survive any termination or expiration of these Terms.
15. DISPUTES BETWEEN USERS; INTELLECTUAL PROPERTY INFRINGEMENT.
15.1 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 Strike Graph Platform. Customer does not have any authority whatsoever to bind Strike Graph in any respect. The parties agree that Strike Graph is a technology company whose primary business is providing a platform upon which users can share medical imaging and data. Neither Strike Graph nor any users of the Strike Graph Platform may direct or control the day-to-day activities of the other, or create or assume any obligation on behalf of the other.
15.2 Disputes Between Users.
a) Customer’s interactions with individuals and/or organizations found on or through the Strike Graph Platform, including Customer’s decision to use materials, advice or other information provided by such individuals and/or organizations is Customer’s decision for which Customer alone is responsible. Customer understands and agrees that Strike Graph does not and cannot make representations as to the suitability of (i) any images, information and/or data Customer may access via the Strike Graph Platform; (ii) any individual Customer may decide to interact with on or through the Strike Graph Platform and/or (iii) the accuracy or suitability of any advice, information, or recommendations made by any Customer.
b) IF THERE IS A DISPUTE BETWEEN USERS OF THE STRIKE GRAPH PLATFORM, OR BETWEEN ANY USER OF THE STRIKE GRAPH PLATFORM AND ANY OTHER THIRD PARTY, CUSTOMER ACKNOWLEDGES AND AGREES THAT STRIKE GRAPH IS UNDER NO OBLIGATION TO BECOME INVOLVED. IN THE EVENT THAT A DISPUTE ARISES BETWEEN CUSTOMER AND ANY OTHER USER OR THIRD PARTY, CUSTOMER HEREBY RELEASES STRIKE GRAPH, ITS OFFICERS, MANAGERS, MEMBERS, DIRECTORS, EMPLOYEES, ATTORNEYS, AGENTS, AND SUCCESSORS IN RIGHTS FROM ANY CLAIMS, DEMANDS, AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND OR NATURE, KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, FORESEEABLE OR UNFORESEEABLE, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR IN ANY WAY RELATED TO SUCH DISPUTES. IF CUSTOMER IS A CALIFORNIA RESIDENT, CUSTOMER WAIVES CALIFORNIA CIVIL CODE §1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY."
16. MISCELLANEOUS.
16.1 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, effective (A) when the sender receives an automated message from the recipient confirming delivery or (B) one hour after the time sent (as recorded on the device from which the sender sent the email) unless the sender receives an automated message that the email has not been delivered, whichever happens first, but if the delivery or receipt is on a day which is not a business day or is after 5:00 pm (addressee’s time) it is deemed to be received at 9:00 am on the following business day, 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.
16.2 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 administered by the American Arbitration Association under its rules. The number of arbitrators shall be one (1). The parties shall endeavor to agree upon the sole arbitrator and jointly nominate the arbitrator. If the parties cannot agree upon the sole arbitrator within a time prescribed by AAA, the parties shall request the AAA to propose five (5) arbitrators and each party shall rank the proposed arbitrators. The AAA shall appoint an arbitrator from the list of five (5), based upon the parties' rankings. The seat, or legal place of arbitration shall be Washington, United States. Notwithstanding the foregoing, Strike Graph has the right to pursue equitable relief in the state and federal courts located Washington, and Customer agrees to the exclusive jurisdiction and venue of such courts.
16.3 Publicity. 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.
16.4 Export. The Strike Graph 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 Strike Graph 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 Strike Graph 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 Strike Graph 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 Strike Graph Platform, is or will be used for nuclear activities, chemical or biological weapons, or missile projects.
16.5 Compliance with Laws. The Strike Graph software and Service 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 Service, 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 or sensitive financial information regulated under the Gramm- Leach-Bliley Act of 1999.
16.6 General. Customer shall not assign its rights hereunder, or delegate the performance of any of its duties or obligations hereunder, whether by merger, acquisition, sale of assets, operation of law, or otherwise, without the prior written consent of Strike Graph. 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. Except as otherwise specified in these Terms, these Terms may be amended or supplemented only by a writing that refers explicitly to these Terms and that is signed on behalf of both parties. 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. 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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