Software as a Service (SaaS) Agreement – Slingshot

(Jun 2021)

PLEASE READ THIS SOFTWARE AS A SERVICE (SaaS) AGREEMENT (“AGREEMENT”) CAREFULLY. THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN INFRAGISTICS AND YOU AND BY ACCESSING THE SOFTWARE – THE SLINGSHOT WEBSITE AND ITS RELATED SOFTWARE COMPONENTS AND DOCUMENTATION – YOU ARE AGREEING THAT YOU HAVE READ ALL OF THE TERMS AND CONDITIONS SET FORTH BELOW, UNDERSTAND ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ENTITY, YOU REPRESENT THAT YOU ARE THE EMPLOYEE OR AGENT OF SUCH COMPANY (OR OTHER ENTITY) AND YOU HAVE THE AUTHORITY TO ENTER INTO THIS LICENSE ON BEHALF OF SUCH COMPANY (OR OTHER ENTITY).

WARNING —– INFRAGISTICS IS WILLING TO ALLOW YOU TO ACCESS THE SOFTWARE ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT.

I. OWNERSHIP; LICENSE GRANT

A. Ownership. As between the parties, Infragistics owns all right, title and interest in and to the computer software known as Slingshot, its related components and associated media and materials including any related documentation such as standard training, user or reference manuals delivered in machine readable form or on-line at the Infragistics website (collectively, the “SOFTWARE”) and any and all patents, copyrights, moral rights, trademarks, trade secrets, designs and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing embodied therein (“Intellectual Property Rights”).. There are no implied licenses and Infragistics retains all rights not expressly granted to You in this AGREEMENT. All corrections, bug fixes, enhancements, updates, additions, or new releases (“Updates”) created by or on behalf of Infragistics and provided or made available to You as part of the SOFTWARE will, together with all applicable Intellectual Property Rights, be owned by Infragistics, but will be included as part of the SOFTWARE for purposes of the access granted to You hereunder.

B. Access Rights. Infragistics hereby grants to You, and You accept non-exclusive, non-transferable right to access and use the SOFTWARE, as authorized in Section II of this AGREEMENT.

C. Data Security. Infragistics stores Your access credentials as an encrypted file. Additionally, Infragistics stores limited personal data, including Your name and email address. This personal data is used to identify You and is not shared with anyone outside of Infragistics. The user data You supply to be rendered into a dashboard using the SOFTWARE is encrypted, cached and stored in an INFRAGISTICS server. Customer Data comprises personal data and user data.

D. Data Use. By accessing the SOFTWARE, you agree to the terms and conditions of the Infragistics’ privacy policy located at https://www.infragistics.com/legal/privacy. Infragistics shall not share any personal data with any other company or individual.

E. Limited License to Use Customer Data. Subject to the terms and conditions of this AGREEMENT, You hereby grant Infragistics a limited, royalty-free, fully-paid up, non-exclusive, license to process Your Customer Data in the United States as necessary to facilitate Your use of the SOFTWARE for Your benefit as provided in this AGREEMENT.

F. Aggregated Statistics. Notwithstanding anything to the contrary in this AGREEMENT, Infragistics may monitor Your use of the SOFTWARE and collect and compile aggregated statistics. Aggregated Statistics are data and information related to Your use of the SOFTWARE that are used by Infragistics in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the SOFTWARE and to improve usefulness, automation and other beneficial capabilities for the user. As between Infragistics and You, all right, title, and interest in aggregated statistics, and all intellectual property rights therein, belong to and are retained solely by Infragistics. You acknowledge that Infragistics may compile aggregated statistics based on Customer Data input into the SOFTWARE. You agree that Infragistics may (i) make aggregated statistics publicly available in compliance with applicable law, and (ii) use aggregated statistics to the extent and in the manner permitted under applicable law; provided that such aggregated statistics do not identify Your Confidential Information.

II. TRIAL LICENSE; PERMITTED USES

A. You may access and use the SOFTWARE on a trial basis for a limited time and solely for the limited purposes of displaying product demonstrations, trials and design time evaluations, and running a product tour, in each case internally for the purposes of performing an evaluation of the SOFTWARE, all in accordance with this AGREEMENT. All trial access and use of the SOFTWARE is subject to the rights, requirements and obligations of this AGREEMENT.

B. The SOFTWARE is accessible to You for full use, upon payment of the then-current access fee. You may access and use the SOFTWARE via any of four platforms, namely, desktop, HTML web based, native iOS, native Android.

C. Solely with respect to the documentation made available as part of the SOFTWARE, Infragistics hereby grants You a non-exclusive, non-sublicensable, non-transferable license to use the documentation. You may make copies (either in hardcopy or electronic form); provided, that such copies shall be for Your internal use only as required to exercise Your rights hereunder and are not to be republished or distributed to any third party.

D. All copies of the documentation made by You shall include Infragistics copyright, trademark, service mark, and other proprietary notices in the same form and location as the notice appears on the original work.

III. PROHIBITED USES.

A. You may not without the prior written permission of Infragistics:

• disassemble, decompile or “unlock”, decode, reverse-compile, or otherwise reverse translate or engineer, or attempt in any manner to reconstruct or discover any source code or underlying algorithms of the SOFTWARE, or create any derivative works of the SOFTWARE;
• use, copy, modify, adapt or create derivative works of the SOFTWARE and any accompanying documents except as permitted in this AGREEMENT;
• transfer, rent, lease, sublicense or otherwise commercially exploit the SOFTWARE
• remove any proprietary notices from the SOFTWARE or documentation; or
• use the SOFTWARE or documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.

IV. U.S. EXPORT REGULATIONS.

U.S. law prohibits Infragistics, its licensees and resellers from exporting its products to, or supporting customers or resellers in certain countries. For specific questions regarding export regulations, please visit the Bureau of Industry and Security web site at http://www.bis.doc.gov

The SOFTWARE and the underlying information and technology may not be accessed (i) from (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) by anyone on the U.S. Treasury Department list of Specially Designated Nationals or the U.S. Commerce Departments Table of Deny Orders. By accessing the SOFTWARE, You are agreeing to the foregoing and You represent and warrant that You are not located in, under the control of, or a national or resident of any such country or on any such list.

V. INDEMNIFICATION

A. You hereby agree to indemnify, hold harmless, and defend Infragistics from and against any and all liabilities, damages, losses, costs and expenses (including reasonable attorneys’ fees) arising from or related to any claim, action, proceeding or allegation that arises or results, either directly or indirectly, from: (i) Your use and the use by Your employees, consultants and agents of the SOFTWARE; (ii) any breach by YOU or them of the terms of this AGREEMENT; and (iii) the use of Your dashboard generated using the SOFTWARE.

VI.ACADEMIC LICENSE ELIGIBILITY REQUIREMENTS.

Infragistics offers qualified educational institutions or organizations and eligible academic end users the ability to buy educational access to Infragistics SaaS products for educational instruction purposes. Educational versions of Infragistics products cannot be used for any commercial purpose. Programs and prices are subject to change without notice. Please contact us for eligibility requirements or if you have any other questions about the Infragistics Education Program, e-mail us at: Academics@infragistics.com.

VII. INDEMNIFICATION

A. The term of this AGREEMENT begins on the date You access the SOFTWARE (the “Effective Date”) and, unless terminated earlier pursuant to this AGREEMENT ‘s express provisions, will continue in effect until terminated pursuant to this AGREEMENT’s express provisions or Infragistics gives the You 30 days written notice of non-renewal.

B. You may voluntarily terminate this AGREEMENT at any time by ceasing to pay Your access fee. Infragistics credit policy is available upon request.

C. This AGREEMENT and your right to access the SOFTWARE will terminate immediately without notice from Infragistics if You fail to comply with the terms and conditions of this AGREEMENT or pay the access fee. This is in addition to and not in lieu of any criminal, civil or other remedies available to Infragistics.

D. Upon any termination of this AGREEMENT, all rights granted to You to access the SOFTWARE will immediately cease and Your Customer Data will be deleted.

E. In addition to this Section VII. E., the following Sections will survive any termination of this AGREEMENT: I.A, III, V, VIII, IX, X and XII.

VIII. CONFIDENTIALITY.

You acknowledge and agree that the SOFTWARE made accessible to you pursuant to this AGREEMENT. Updates and modifications thereto contain trade secrets, know-how and other confidential and proprietary information including, without limitation, the concepts, techniques, ideas, algorithms, methods, and structure and design elements embodied and expressed in any computer programs or modules included in the SOFTWARE, as well as the structure, sequence and organization of such programs or modules (“Confidential Information”) that is the exclusive property of Infragistics, the development of which required the expenditure of considerable time and money by Infragistics. You further acknowledge that any disclosure to third parties of the Confidential Information may cause immediate and irreparable harm to Infragistics.

You agree to maintain in confidence the SOFTWARE any Updates and modifications as well as all Confidential Information by using at least the same physical and other security measures as you use for Your own confidential technical information and documentation, but in no event less that a commercially reasonable standard of care. You further agree not to disclose the SOFTWARE any Updates and modifications and the Confidential Information to anyone who have a need to know or obtain access to such Confidential Information in order to support your authorized use of the SOFTWARE and who are bound to protect the SOFTWARE, any Updates and modifications and such Confidential Information against any other use or disclosure. You shall be fully responsible for Your employees’ or consultants’ compliance with this Section VIII. These obligations shall not apply to any portion of the SOFTWARE, any Updates and modifications or Confidential Information which is: (i) generally available to the public, or (ii) independently developed by You without reliance on the Confidential Information, or (iii) approved in writing for release by Infragistics without restriction.

IX. LIMITED WARRANTY.

A. You represent, warrant and covenant that: (i) all of Your employees and consultants will abide by the terms of this Agreement; and (ii) You will comply with all applicable laws, regulations, rules, orders and other requirements, now or hereafter in effect, of any applicable governmental authority, in its performance of this AGREEMENT. Notwithstanding any terms to the contrary in this AGREEMENT, You will remain responsible for acts or omissions of all employees or consultants of Yours to the same extent as if such acts or omissions were undertaken by You. You assume responsibility for the selection of the SOFTWARE to achieve your intended results and for the results obtained by using the SOFTWARE.

B. Infragistics warrants that the SOFTWARE will perform substantially in accordance with its accompanying documentation

C. Except as set forth in Section IX.B, ACCESS IS PROVIDED TO THE SOFTWARE AND THE FUNCTIONALITY OF THE SOFTWARE IS PROVIDED ON AN AS IS OR AS AVAILABLE BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES, COVENANTS OR CONDITIONS OF ANY KIND. INFRAGISTICS AND ITS LICENSORS AND/OR SUPPLIERS DO NOT WARRANT THAT ANY OF THE SOFTWARE WILL BE FREE FROM BUGS, ERRORS, OR OMISSIONS. INFRAGISTICS AND ITS LICENSORS/SUPPLIERS DISCLAIM ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SOFTWARE WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL (i) WARRANTIES OF MERCHANTABILITY, (ii) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT INFRAGISTICS KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE), OR (III) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE RELIED ON NO SUCH WARRANTIES.

X. LIMITATION OF LIABILITIES.

A. Infragistics’ and its licensors’/suppliers’ entire liability, in contract, tort or otherwise, and your exclusive remedy under the performance warranty set forth in Section IX.B, shall be, at Infragistics’ option, either: (i) return of the access fee paid, or (ii) repair or replacement of the defective SOFTWARE. This limited warranty is void if failure of the SOFTWARE has resulted from accident, abuse, or misapplication.

B. Infragistics’ total, aggregate liability, whether in contract, tort, or otherwise, arising out of Your use or the use of Your employees or consultants of, or in connection with, the SOFTWARE, or otherwise under this AGREEEMENT, shall in no event exceed the amount of the access fee paid or payable by You to Infragistics, if any, under this LICENSE. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION

C. IN NO EVENT SHALL INFRAGISTICS OR ITS SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, OR ANY OTHER LOSS) ARISING OUT OF THE USE OF OR INABILITY TO USE THE SOFTWARE, OR IN CONNECTION WITH THIS LICENSE, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF INFRAGISTICS HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.

D. Some states and jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, or the exclusion of implied warranties, so the limitations in Sections X.B and X.C may not apply to You.

XI. THIRD PARTY COMPONENTS, USAGE & RESTRICTIONS.

A. The SOFTWARE may include third party open source components (“Other Components”) licensed under, and subject to the permission of licenses like the MIT License found at https://opensource.org/licenses/MIT. The Other Components are provided “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION WITH THE OTHER COMPONENTS OR THE USE OF OTHER DEALINGS IN THE OTHER COMPONENTS.

XII. MISCELLANEOUS.

This AGREEMENT is governed by and shall be construed in accordance with the laws of the State of New Jersey as applied to agreements entered into and to be performed entirely within New Jersey. Any legal suit, action, or proceeding arising out of or related to this AGREEMENT or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of New Jersey, and You irrevocably submit to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. This AGREEMENT is the entire agreement between You and Infragistics regarding the subject matter hereof and supersedes all other agreements between us, whether written or oral, relating to this subject matter hereof. In the event of a conflict between this Agreement and any terms of service or other information on the Infragistics website, this Agreement will prevail. You may not transfer Your rights under this AGREEMENT to any third party. If any provision of this AGREEMENT is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of this AGREEMENT will nonetheless remain in full force and effect.

The SOFTWARE is protected by United States copyright laws and international treaty provisions. All rights are reserved worldwide.