Datashutl Service Agreement (“Agreement” or “Service Agreement”).  This Agreement includes and any referenced or attached policies and documents

1.      Service

1.      Access and Use. During the Subscription Period and subject to the terms of this Agreement, you (you are referred to herein as “Customer”) may (a) access and use the Service; and (b) use the included Software and Documentation only as needed to access and use the Service, in each case, for its internal business purposes.

2.      Support. During the Subscription Period, Provider will provide technical support by email.

3.      User Accounts. Customer is responsible for all actions on Users’ accounts and for all Users’ compliance with this Agreement. Customer and Users must protect the confidentiality of their passwords and login credentials. Customer will promptly notify Provider if it suspects or knows of any fraudulent activity with its accounts, passwords, or credentials, or if they become compromised.

4.      Feedback and Usage Data. Customer may, but is not required to, give Provider Feedback, in which case Customer gives Feedback "AS IS". Provider may use all Feedback freely without any restriction or obligation. In addition, Provider may collect and analyze Usage Data, and Provider may freely use Usage Data to maintain, improve, enhance, and promote Provider’s products and services without restriction or obligation. However, Provider may only disclose Usage Data to others if the Usage Data is aggregated and does not identify Customer or Users.

2.      Restrictions & Obligations

1.      Restrictions on Customer. a. Except as expressly permitted by this Agreement, Customer will not (and will not allow anyone else to): (i) reverse engineer, decompile, or attempt to discover any source code or underlying ideas or algorithms of the Product (except to the extent Applicable Laws prohibit this restriction); (ii) provide, sell, transfer, sublicense, lend, distribute, rent, or otherwise allow others to access or use the Product; (iii) remove any proprietary notices or labels; (iv) copy, modify, or create derivative works of the Product; (v) conduct security or vulnerability tests on, interfere with the operation of, cause performance degradation of, or circumvent access restrictions of the Product; (vi) access accounts, information, data, or portions of the Product to which Customer does not have explicit authorization; (vii) use the Product to develop a competing service or product; (viii) use the Product with any High Risk Activities or with any activity prohibited by Applicable Laws; (ix) use the Product to obtain unauthorized access to anyone else’s networks or equipment; or (x) upload, submit, or otherwise make available to the Product any Customer Content to which Customer and Users do not have the proper rights. b. Use of the Product must comply with all Documentation and Use Limitations.

2.      Suspension. If Customer (a) has an outstanding, undisputed balance on its account for more than 30 days; (b) breaches Section 2.1 (Restrictions on Customer); or (c) uses the Product in violation of the Agreement or in a way that materially and negatively impacts the Product or others, then Provider may temporarily suspend Customer’s access to the Product with or without notice. However, Provider will try to inform Customer before suspending Customer’s account when practical. Provider will reinstate Customer’s access to the Product only if Customer resolves the underlying issue.

3.      Privacy & Security

1.      Personal Data. Before submitting Personal Data governed by GDPR, Customer must enter into a data processing agreement with Provider. If the parties have a DPA, each party will comply with its obligations in the DPA, the terms of the DPA will control each party’s rights and obligations as to Personal Data, and the terms of the DPA will control in the event of any conflict with this Agreement.

2.      Prohibited Data. Customer will not (and will not allow anyone else to) submit Prohibited Data to the Product.

3.      Nothing in this Agreement shall be construed to limit Provider’s obligations under all Applicable Data Protection Laws.

4.      Datashutl’s Privacy Policy can be found here. [LINK]

4.      Payment & Taxes

1.      Fees. All Providers fees and charges of any kind (“Fees”) are in U.S. Dollars and are exclusive of taxes. Except for the prorated refund of prepaid Fees allowed with specific termination rights given in the Agreement, Fees are non-refundable.

2.      Advance Payment. Fees and applicable taxes are payable in advance for the Subscription Period.  Upon payment, an invoice will be made available by email.

3.      Automatic Payment. After payment for Customer’s first Subscription Period, payment for additional Subscription Periods will be automatic unless Customer terminates as provided herein.

4.      Taxes. Customer is responsible for all duties, taxes, and levies that apply to Fees, including sales, use, VAT, GST, or withholding. However, Customer is not responsible for Provider’s income taxes.

5.      Payment. Customer will pay Provider Fees and taxes in U.S. Dollars.

6.      Payment Dispute. If Customer has a good-faith disagreement about the Fees charged, Customer must notify Provider about the dispute within five (5) business days. The Customer and Provider will attempt in good faith to resolve the dispute within fifteen (15) days.

5.      Term & Termination

1.      This Agreement will start on Customer’s execution of this Agreement, continue through the Subscription Period, and automatically renew for additional Subscription Periods unless earlier terminated as provided herein.

2.      Termination.  This Agreement will terminate upon the expiration or termination of all pre-paid Subscription Periods.  In addition, either party may terminate immediately: a. if the other party fails to cure a material breach of this Agreement following a 30 days written notice; b. immediately upon notice if the other party (i) materially breaches this Agreement in a manner that cannot be cured; (ii) dissolves or stops conducting business without a successor; (iii) makes an assignment for the benefit of creditors; or (iv) becomes the debtor in insolvency, receivership, or bankruptcy proceedings that continue for more than 60 days.

3.      Force Majeure. Either party may terminate an affected Order Form upon notice if a Force Majeure Event prevents the Product from materially operating for 30 or more consecutive days. Provider will pay to Customer a prorated refund of any prepaid Fees for the remainder of the Subscription Period. A Force Majeure Event does not excuse Customer’s obligation to pay Fees accrued prior to termination.

4.      Effect of Termination. Upon any expiration or termination: a. Customer will no longer have any right to use the Product. b. Upon Customer’s request, Provider will delete Customer Content within 60 days. c. Each Recipient will return or destroy Discloser’s Confidential Information in its possession or control.

5.      Survival. a. The following sections will survive expiration or termination of the Agreement: Section 1.4 (Feedback and Usage Data), Section 2.1 (Restrictions on Customer), Section 4 (Payment & Taxes) for Fees accrued or payable before expiration or termination, Section 5.4 (Effect of Termination), Section 5.5 (Survival), Section 6 (Representations & Warranties), Section 7 (Disclaimer of Warranties), Section 8 (Limitation of Provider’s Liability), Section 9 (Indemnification), Section 10 (Confidentiality), Section 11 (Reservation of Rights), Section 12 (General Terms), and Section 13 (Definitions). b. Each Recipient may retain Discloser’s Confidential Information in accordance with its standard backup or record retention policies maintained in the ordinary course of business or as required by Applicable Laws, in which case Section 3 (Privacy & Security) and Section 10 (Confidentiality) will continue to apply to retained Confidential Information.

6.      Representations & Warranties

1.      Mutual. Each party represents and warrants to the other that: (a) it has the legal power and authority to enter into this Agreement; (b) it is duly organized, validly existing, and in good standing under the Applicable Laws of the jurisdiction of its origin; (c) it will comply with all Applicable Laws in performing its obligations or exercising its rights in this Agreement; and (d) it will comply with the Additional Warranties.

2.      From Customer. Customer represents and warrants that it, all Users, and anyone submitting Customer Content each have and will continue to have all rights necessary to submit or make available Customer Content to the Product and to allow the use of Customer Content as described in the Agreement.

3.      From Provider. Provider represents and warrants to Customer that it will not materially reduce the general functionality of the Service during the Subscription Period.

4.      Provider Warranty Remedy. If Provider breaches the warranty in Section 6.3 (Representations & Warranties from Provider), Customer must give Provider notice (with enough detail for Provider to understand or replicate the issue) within 45 days of discovering the issue. Within 45 days of receiving sufficient details of the warranty issue, Provider will attempt to restore the general functionality of the Service. If Provider cannot resolve the issue, Customer may terminate this Agreement and Provider will pay to Customer a prorated refund of prepaid Fees for the remainder of the Subscription Period. Provider’s restoration obligation, and Customer’s termination right, both as provided in this Section 6.4, are Customer’s only remedy if Provider does not meet the warranty in Section 6.3 (Representations & Warranties from Provider).

7.      DISCLAIMER OF WARRANTIES

1.      PROVIDER MAKES NO GUARANTEES THAT THE PRODUCT WILL ALWAYS BE SAFE, SECURE, OR ERROR-FREE, OR THAT IT WILL FUNCTION WITHOUT DISRUPTIONS, DELAYS, OR IMPERFECTIONS. THE WARRANTIES IN SECTION 6 (REPRESENTATIONS & WARRANTIES) DO NOT APPLY TO ANY MISUSE OR UNAUTHORIZED MODIFICATION OF THE PRODUCT, OR TO ANY PRODUCT OR SERVICE PROVIDED BY ANYONE OTHER THAN PROVIDER. EXCEPT FOR THE WARRANTIES IN SECTION 6 (REPRESENTATIONS & WARRANTIES), PROVIDER AND CUSTOMER EACH DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THESE DISCLAIMERS APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS.

8.      Limitation of Provider’s Liability

1.      Maximum Liability. a. Except as provided in Section 8.4 (Exceptions), Provider’s total cumulative liability for all claims arising out of or relating to this Agreement will not exceed Fees paid by Customer in any twelve (12) month period.

2.      Damages Waiver. Except as provided in Section 8.4 (Exceptions), under no circumstances will either party be liable to the other for lost profits or revenues (whether direct or indirect), or for consequential, special, indirect, exemplary, punitive, or incidental damages relating to this Agreement, even if the party is informed of the possibility of this type of damage in advance.

3.      Applicability. The limitations and waivers contained in Sections 8.1 (Maximum Liability) and 8.2 (Damages Waiver) apply to all liability, whether in tort (including negligence), contract, breach of statutory duty, or otherwise.

4.      Exception. Nothing in this Agreement will limit, exclude, or restrict a party's liability to the extent prohibited by Applicable Laws.

9.      Indemnification

1.      Protection by Customer. Customer will indemnify, defend, and hold harmless Provider from and against all claims made by someone other than Provider or its Affiliates, and all out-of-pocket damages, awards, settlements, costs, and expenses, including reasonable attorneys’ fees and other legal expenses, that arise from the Customer’s use of the Product.

2.      Procedure. Provider will, as promptly as reasonably practical, notify Customer of any claim for which it seeks indemnification hereunder, and will provide reasonable assistance to Customer at Customer’s expense.  Customer shall not agree to any settlement without the prior written consent of the Provider.

10.    Confidentiality

1.      Non-Use and Non-Disclosure. Except as otherwise authorized in the Agreement or as needed to fulfill its obligations or exercise its rights under this Agreement, Recipient will not (a) use Discloser’s Confidential Information; nor (b) disclose Discloser’s Confidential Information to anyone else. In addition, Recipient will protect Discloser’s Confidential Information using at least the same protections Recipient uses for its own similar information but no less than a reasonable standard of care.

2.      Exclusions. Confidential Information does not include information that (a) Recipient knew without any obligation of confidentiality before disclosure by Discloser; (b) is or becomes publicly known and generally available through no fault of Recipient; (c) Recipient receives under no obligation of confidentiality from someone else who is authorized to make the disclosure; or (d) Recipient independently developed without use of or reference to Discloser’s Confidential Information.

3.      Required Disclosures. Recipient may disclose Discloser’s Confidential Information to the extent required by Applicable Laws if, unless prohibited by Applicable Laws, Recipient provides Discloser reasonable advance notice of the required disclosure and reasonably cooperates, at Discloser’s expense, with Discloser’s efforts to obtain confidential treatment for the Confidential Information.

4.      Permitted Disclosures. Recipient may disclose Discloser’s Confidential Information to Users, employees, advisors, contractors, and representatives who each have a need to know the Confidential Information, but only if the person or entity is bound by confidentiality obligations at least as protective as those in this Section 10 (Confidentiality) and Recipient remains responsible for everyone’s compliance with the terms of this Section 10 (Confidentiality).

11.    Reservation of Rights

1.      Provider Ownership of Product. Except for the limited license to use Software and Documentation in Section 1.1 (Access and Use), Provider retains all right, title, and interest in and to the Product, whether developed before or after the Effective Date.

12.    General Terms

1.      Entire Agreement. This Agreement is the only agreement between the parties about its subject and this Agreement supersedes all prior or contemporaneous statements (whether in writing or not) about its subject. Provider expressly rejects any terms included in Customer’s purchase order or similar document, which may only be used for accounting or administrative purposes. No terms or conditions in any Customer documentation or online vendor portal will apply to Customer’s use of the Product unless expressly agreed to in a legally binding written agreement signed by an authorized Provider representative, regardless of what such terms may say.

2.      Modifications, Severability, and Waiver. Any waiver, modification, or change to the Agreement must be in writing and signed or electronically accepted by each party. If any term of this Agreement is determined to be invalid or unenforceable by a relevant court or governing body, the remaining terms of this Agreement will remain in full force and effect. The failure of a party to enforce a term or to exercise an option or right in this Agreement will not constitute a waiver by that party of the term, option, or right.

3.      Governing Law and Chosen Courts. The laws of the State of North Carolina will govern all interpretations and disputes about this Agreement, without regard to its conflict of laws provisions. The parties will bring any legal suit, action, or proceeding about this Agreement in the state or federal courts located in North Carolina and each party irrevocably submits to the exclusive jurisdiction of state or federal courts located in North Carolina.

4.      Injunctive Relief. Despite Section 12.3 (Governing Law and Chosen Courts), a breach of Section 10 (Confidentiality) or the violation of a party’s intellectual property rights may cause irreparable harm for which monetary damages cannot adequately compensate. As a result, upon the actual or threatened breach of Section 10 (Confidentiality) or violation of a party’s intellectual property rights, the non-breaching or non-violating party may seek appropriate equitable relief, including an injunction, in any court of competent jurisdiction without the need to post a bond and without limiting its other rights or remedies.

5.      Non-Exhaustive Remedies. Except where the Agreement provides for an exclusive remedy or maximum liability, seeking or exercising a remedy does not limit the other rights or remedies available to a party.

6.      Assignment. Neither party may assign any rights or obligations under this Agreement without the prior written consent of the other party. However, either party may assign this Agreement upon notice if the assigning party undergoes a merger, change of control, reorganization, or sale of all or substantially all its equity, business, or assets to which this Agreement relates. Any attempted but non-permitted assignment is void. This Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.

7.      Beta Products. If Provider gives Customer access to a Beta Product, the Beta Product is provided "AS IS" and Section 6.3 (Representations & Warranty From Provider) does not apply to any Beta Products. Customer acknowledges that Beta Products are experimental in nature and may be modified or removed at Provider’s discretion with or without notice.

8.      Logo Rights. Provider may identify Customer and use Customer’s name and logo in marketing to identify Customer as a user of Provider’s products and services.

9.      Notices. Any notice, request, or approval about the Agreement must be in writing and sent to the Notice Address. Notices will be deemed given (a) upon confirmed delivery if by email, registered or certified mail, or personal delivery; or (b) two days after mailing if by overnight commercial delivery.

10.    Independent Contractors. The parties are independent contractors, not agents, partners, or joint venturers. Neither party is authorized to bind the other to any liability or obligation.

11.    No Third-Party Beneficiary. There are no third-party beneficiaries of this Agreement.

12.    Force Majeure. Neither party will be liable for a delay or failure to perform its obligations of this Agreement if caused by a Force Majeure Event. However, this section does not excuse Customer’s obligations to pay Fees.

13.    Export Controls. Customer may not remove or export from the United States or allow the export or re-export of the Product or any related technology or materials in violation of any restrictions, laws, or regulations of the United States Department of Commerce, OFAC, or any other United States or foreign agency or authority. Customer represents and warrants that it is not (a) a resident or national of an Embargoed Country; (b) an entity organized under the laws of an Embargoed Country; (c) designated on any list of prohibited, restricted, or sanctioned parties maintained by the U.S. government or agencies or other applicable governments or agencies, including OFAC’s Specially Designated Nationals and Blocked Persons List and the UN Security Council Consolidated List; nor (d) 50% or more owned by any party designated on any of the above lists. Provider may terminate this Agreement immediately without notice or liability to comply, as determined in Provider’s sole discretion, with applicable export controls and sanctions laws and regulations.

14.    Government Rights. The Service and Software are deemed "commercial items" or "commercial computer software" according to FAR section 12.212 and DFAR section 227.7202, and the Documentation is "commercial computer software documentation" according to DFAR section 252.227-7014(a)(1) and (5). Any use, modification, reproduction, release, performance, display, or disclosure of the Product by the U.S. Government will be governed solely by the terms of this Agreement and all other use is prohibited.

15.    Anti-Bribery. Neither party will take any action that would be a violation of any Applicable Laws that prohibit the offering, giving, promising to offer or give, or receiving, directly or indirectly, money or anything of value to any third party to assist Provider or Customer in retaining or obtaining business. Examples of these kinds of laws include the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010.

16.    Titles and Interpretation. Section titles are for convenience and reference only. All uses of "including" and similar phrases are non-exhaustive and without limitation. The United Nations Convention for the International Sale of Goods and the Uniform Computer Information Transaction Act do not apply to this Agreement.

17.    Signature. This Agreement may be signed in counterparts, including by electronic copies or other acceptance mechanism or process at time of payment. Each copy will be deemed an original and all copies, when taken together, will be the same agreement.

13.    Definitions

1.      "Affiliate" means an entity that, directly or indirectly, controls, is under the control of, or is under common control with a party, where control means having more than fifty percent (50%) of the voting stock or other ownership interest.

2.      "Applicable Data Protection Laws" means the Applicable Laws that govern how the Service may process or use an individual’s personal information, personal data, personally identifiable information, or other similar term.

3.      "Applicable Laws" means the laws, rules, regulations, court orders, and other binding requirements of a relevant government authority that apply to or govern Provider or Customer.

4.      "Beta Product" means an early or prerelease feature or version of the Product that is identified as beta or similar, or a version of the Product that is not generally available.

5.      "Confidential Information" means information in any form disclosed by or on behalf of a Discloser, including before the Effective Date, to a Recipient in connection with this Agreement that (a) the Discloser identifies as "confidential", "proprietary", or the like; or (b) should be reasonably understood as confidential or proprietary due to its nature and the circumstances of its disclosure. Confidential Information includes the existence of this Agreement and the information on each Cover Page. Customer’s Confidential Information includes non-public Customer Content and Provider’s Confidential Information includes non-public information about the Product.

6.      "Customer Content" means data, information, or materials submitted by or on behalf of Customer or Users to the Product but excludes Feedback.

7.      "Discloser" means a party to this Agreement when the party is providing or disclosing Confidential Information to the other party.

8.      "Documentation" means the usage manuals and instructional materials for the Product, Service or Software that are made available by Provider.

9.      "Embargoed Country" means any country or region to or from where Applicable Laws generally restrict the export or import of goods, services, or money.

10.    "Feedback" means suggestions, feedback, or comments about the Product or related offerings.

11.    "Force Majeure Event" means an unforeseen event outside a party’s reasonable control where the affected party took reasonable measures to avoid or mitigate the impacts of the event. Examples of these kinds of events include unpredicted natural disasters like a major earthquake, war, pandemic, riot, act of terrorism, or public utility or internet failure.

12.    "GDPR" means European Union Regulation 2016/679 as implemented by local law in the relevant European Union member nation, and by section 3 of the United Kingdom’s European Union (Withdrawal) Act of 2018 in the United Kingdom.

13.    “High Risk Activities” means situations where the use or failure of the Product could be reasonably expected to lead to death, bodily injury, or environmental damage. Examples include full or partial autonomous vehicle technology, medical life-support technology, emergency response services, nuclear facilities operation, and air traffic control.

14.    "OFAC" means the United States Department of Treasury's Office of Foreign Assets Control.

15.    "Personal Data" will have the meaning(s) set forth in the Applicable Data Protection Laws for personal information, personal data, personally identifiable information, or other similar term.

16.    "Product" means the Service, Software, and Documentation.

17.    "Prohibited Data" means (a) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act; (b) credit, debit, bank account, or other financial account numbers; (c) social security numbers, driver’s license numbers, or other unique and private government ID numbers; (d) special categories of data as defined in the GDPR; and (e) other similar categories of sensitive information as set forth in the Applicable Data Protection Laws.

18.    “Provider” means Datashutl, LLC.

19.    "Recipient" means a party to this Agreement when the party receives Confidential Information from the other party.

20.    "Service" means the software-as-a-service known as Datashutl, provided to Customer by Provider.

21.    "Software" means the software or applications made available by Provider for Customer to install, download (whether onto a machine or in a browser), or execute as part of the Product.

22.    “Subscription Period” means the designated time frame, which will be either one (1) month or one (1) year, during which a Customer is entitled to access the SaaS Services upon payment of the applicable subscription fee, commencing on the effective date of the subscription and ending on the renewal date or termination of the agreement, whichever occurs first

23.    "Usage Data" means data and information about the provision, use, and performance of the Product and related offerings based on Customer’s or User’s use of the Product.

24.    "User" means any individual who uses the Product on Customer’s behalf or through Customer’s account.