Table of Contents

Terms and Conditions

These are the terms and conditions applied to Viewyonder fractional services for tech B2Bs, and the intellectual property and products we also supply. These may be supercededby terms and conditions in individual master service agreements and statement of work contracts.

1. Definitions

a) “Customer Materials” means any and all materials or Technology that Customer provides to Viewyonder that are required for Viewyonder to complete the Deliverables. Customer Materials shall not be included in the Deliverables, unless expressly stated in the Statement of Work (“SOW”).

b) “Consulting Services” means those services provided by Viewyonder to Customer as delineated in this SOW.

c) “Deliverables” means the work product from the Consulting Services that Viewyonder performs pursuant to this SOW and any Prior Technology incorporated therein.

d) “Derivative Work” means a derivative work within the meaning of the U.K. copyright law.

e) “Intellectual Property Rights” means (by whatever name or term known or designated) copyrights, trade secrets, trademarks, patents, and any other intellectual and industrial property and proprietary rights, including registrations, applications, renewals and extensions of such rights.

f) “Prior Technology” means any and all Technology incorporated into the Deliverables that is developed or otherwise created by or on behalf of Viewyonder or licensed by Viewyonder, and which may be improved or modified in the course of developing the Deliverables.

g) “Technology” means algorithms, approaches, code, concepts, data, designs, developments, documentation, discoveries, expressions, inventions, know how, methodologies, multi-media files, object codes, processes, programs, skills, software, techniques, technology, text, tools, and web pages.

2. Intellectual Property

a) Proprietary Rights. All Intellectual Property Rights and all software, Prior Technology, and Deliverables developed or provided by Viewyonder are and remain Viewyonder property (“Viewyonder Proprietary Works”). All written reports, analyses and other working papers delivered by Viewyonder to Customer in the performance of Viewyonder’s obligations under this SOW (“Document Work Product”), exclusive of any Intellectual Property Rights embodied therein, belong to Customer. Nothing herein shall preclude Viewyonder from developing, using or marketing services or materials that are similar or related to such Deliverables.

b) Customer Furnished Materials. Any tangible Customer Materials furnished for use by Viewyonder remain Customer property.

c) Work Product License. Upon Customer’s payment in full for Deliverables, and to the extent that Viewyonder Proprietary Works are contained in the Deliverables, Customer is licensed to (a) use such Viewyonder Proprietary Works internally, for the purpose for which the Deliverables were provided, on a non-exclusive, nontransferable, without rights to sublicense, royalty-free, worldwide basis, and (b) make, for internal use only, a reasonable number of copies of the original Document Work Product in amounts reasonably necessary for Customer’s use. Customer shall not sublicense or otherwise transfer to any third party any Viewyonder Proprietary Works. Other than as specifically provided herein, Customer may not modify, alter decompile, disassemble, reverse-engineer, or create Derivative Works from the Deliverables.

d) Software License. If Customer is granted a license to use software solely in conjunction with this SOW (“Project License”), such shall consist solely of a nonexclusive, non-transferable, and without rights to sublicense right to use such software only in direct connection with this SOW. The term of the Project License shall start on delivery of the software and expire upon completion of this SOW.

e) Viewyonder License. Customer hereby grants to Viewyonder a non-exclusive, worldwide, perpetual, royalty-free, non-transferable (except for entities controlling, controlled by, or under common control with Viewy9onder) license under Customer’s Intellectual Property Rights in the Customer Materials necessary for Viewyonder to use, make, copy, modify, and create Derivative Works of the Customer Materials, for the purpose of developing and testing the Deliverables.

3. Confidentiality

a) Each party shall: (i) treat as confidential all Confidential Information of the other party, (ii) not use such Confidential Information except to exercise its rights and perform its obligations under this SOW, (iii) not disclose such Confidential Information to any third party for a period of three (3) years from the date of disclosure; and iv) not make Confidential Information available to any of its employees or consultants except those that have signed an agreement containing disclosure and use provisions similar to those set forth herein and have a “need to know” in order to carry out the purpose set forth above. Without limiting the foregoing, each party shall use at least the same degree of care to prevent the disclosure of the Confidential Information of the other party that it uses to prevent the disclosure of its own confidential information of like importance, except for source code which shall at all times be kept in the strictest confidence. Without limiting the foregoing, the restrictions on disclosure and use set forth herein shall not restrict or limit the right of the receiving party to (a) independently design, develop, acquire, market, service or otherwise deal in, directly or indirectly, products or services competitive with those of the disclosing party; or (b) assign personnel for any purpose.

b) “Confidential Information” means: (i) any information or materials provided by one party to the other party which are in tangible form and labeled “confidential” or the like, or, if disclosed orally, are identified as being confidential at the time of disclosure and, within two (2) weeks thereafter, are summarized, appropriately labeled, and provided in tangible form. Notwithstanding the foregoing, the following information shall always be deemed to be Confidential Information whether or not reduced to writing or marked confidential: for Viewyonder, its product and service roadmaps, source code, formulae, processes, methodologies, release dates, feature sets, and strategic business plans, and for Customer, its architecture, customer data, and strategic business plans.

c) Confidential Information shall not include, or shall cease to include, as applicable, information that: (i) was in the public domain at the time it was disclosed or has become in the public domain through no fault of the receiving party; (ii) was known to the receiving party without restriction at the time of disclosure, as demonstrated by files in existence at the time of disclosure; (iii) is disclosed with the prior written approval of the disclosing party; (iv) was independently developed by the receiving party without any use of Confidential Information of the disclosing party; or (v) becomes known to the receiving party, without restriction, from a source other than the disclosing party. The receiving party may disclose the other party’s Confidential Information to the extent such disclosure is required by order or requirement of a court, administrative agency, or other governmental body, provided the receiving party gives the disclosing party prompt notice thereof to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure.

4. Warranty and Limitation of Liability

a) Viewyonder Warranties. Viewyonder warrants that the Consulting Services to be performed hereunder will be done in a workmanlike manner and shall conform to standards of the industry. Customer must notify Viewyonder of any failure to so perform within ten (10) days after the completion of the Consulting Services. Viewyonder’s entire liability and Customer’s sole remedy for Viewyonder’s failure to so perform shall be for Viewyonder to, at its option, (i) use reasonable efforts to correct such failure, and/or (ii) terminate this SOW and refund that portion of any fees received that correspond to such failure to perform.


c) Viewyonder shall not be liable for any incidental, consequential, exemplary, special or indirect damages (including, but not limited to, loss of profits, revenues, data and/or use), even if advised of the possibility thereof, under this SOW. Viewyonder’s total liability under this SOW shall not exceed the fees paid for the Consulting Services and Deliverables provided by Viewyonder under this SOW.

5. Acceptance

Customer will acknowledge receipt and acceptance/rejection of all Deliverables, including signed timesheets (if applicable), associated with this SOW within ten (10) business days of delivery (not including Federal Holidays). If such acknowledgment is not received within this period, all Deliverables will be deemed acknowledged and accepted. Customer shall use the Project Milestone Completion Form attached as Appendix A to indicate acceptance of Deliverables.

6. Fees and Payment

a) Payment. Viewyonder will provide the Consulting Services as outlined in the SOW for (i) a fixed price or ii) a time and materials price described herein, plus applicable taxes and travel expenses. Travel expenses are not to exceed the amount stated herein. Invoicing occurs either upon project engagement or Customer acceptance of each milestone as stated in the project SoW, and must be paid by Customer within thirty (30) days of the date of invoice. In the event Customer has purchased Viewyonder Consulting and Viewyonder Credits as means of payment, upon acceptance of Deliverables, the Viewyonder Consulting & Training Credits will be deducted from the Customer’s balance. It shall be the Customer’s responsibility to ensure that its purchase order (“PO”) issued to Viewyonder for the Consulting Services reflects the pricing set forth in the SOW. Once a PO from Customer has been fulfilled by Viewyonder, Viewyonder shall have no liability for any pricing in Customer’s PO which is inconsistent with the pricing set forth in this SOW. Customer agrees that POs do not have to be signed to be valid and enforceable. Subject to these General Terms & Conditions, all fees are non-refundable.

b) Taxes. All charges and fees provided for in this SOW are exclusive of any taxes, duties, or similar charges imposed by any government. Customer shall pay or reimburse Viewyonder for all federal, state, dominion, provincial, or local sales, use, personal property, withholding, excise or other taxes, fees, or duties arising out of this SOW or the transactions contemplated by this SOW (other than taxes on the net income of Viewyonder). If Customer is required to pay any withholding tax, charge or levy in respect of any payments due to Viewyonder hereunder, Customer agrees to gross up payments actually made such that Viewyonder shall receive sums due hereunder in full and free of any deduction for any such withholding tax, charge or levy.

c) Late Payments. All amounts that are not paid by Customer as required by this SOW shall be subject to a late charge equal to one and one-half percent (1.5%) per month, or, if less, the maximum amount allowed by applicable law. If payment of any fee is overdue, Viewyonder may also suspend provision of the Consulting Services until such delinquency is corrected.

d) Currency. All charges and fees provided for in this SOW shall be in the currency described in this SOW.

e) Cancellation. A minimum of fifteen (15) business days written notice is required for rescheduling or canceling this SOW prior to the commencement of the Consulting Services. A full refund less any expenses (e.g., airfare) will be provided if said notice is given. The entire payment is owed if this SOW is canceled with less than said notice.

7. Term and Termination

The SOW will be in full force and effect until (i) Customer’s acceptance of the final Deliverable, or (ii) Viewyonder and Customer mutually terminate this SOW in writing. Sections 1, 2, 3, 4, 6, 7, 8, and 9 will survive termination or expiration of this Agreement.

8. Non-solicitation

During the term of this SOW, and for a period of one (1) year thereafter, Customer will not solicit or encourage any of Viewyonder’s technical or management employees to work elsewhere and Customer will not directly or indirectly hire or retain the services of any of Viewyonder’s technical or management employees without the prior written consent of Viewyonder. In the event that Customer violates this provision, Customer will immediately remit to Viewyonder an employment fee equal to fifty (50%) of the employee’s starting salary.

9. Miscellaneous

a) No Assignment. This SOW and any rights or obligations of Customer under it may not be assigned, subcontracted or otherwise transferred by Customer, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of Viewyonder, which consent will not be unreasonably withheld. Subject to the foregoing, this SOW will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.

b) Independent Contractors. The relationship of Viewyonder and Customer established by this SOW is that of independent contractors. Nothing contained herein shall constitute either party the agent of the other party, or otherwise grant either party the authority to bind the other party to any obligation, or constitute the parties as partners or joint venturers and neither party shall hold itself out as being an agent having such authority. Customer shall make no representations or warranties on behalf of Viewyonder with respect to the Consulting Services and/or Deliverables. c) No Warranties. No employee, agent, representative or affiliate of Viewyonder has authority to bind Viewyonder to any oral representations or warranty concerning the Deliverables. Any written representation or warranty not expressly contained in this Agreement will not be enforceable. d) Governing Law. This SOW will be governed by the laws of England and Wales, United Kingdom, without regard to conflict of law principles. The parties consent to the exclusive jurisdiction of the courts of England and Wales. Notwithstanding the foregoing, either party may seek injunctions to prevent and/or stop any breach of, and otherwise enforce its intellectual property rights of whatever nature and/or rights in Confidential Information in the courts of any country, state or other territory which accepts jurisdiction.

e) Force Majeure. Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this SOW if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquake, fire and explosions, but the inability to meet financial obligations is expressly excluded.

f) Export Control. Customer will obtain any export licenses that may be required under applicable U.K. laws prior to any export or re-export of products or information provided under this SOW.

g) End User License Agreement. In the event the Consulting Services involve Viewyonder software products licensed to Customer under a separate license agreement, unless otherwise provided herein, the terms set out in such separate license agreement shall apply with respect to each such Viewyonder software product.

h) Acknowledgment. Unless otherwise stated in this SOW, Customer acknowledges that the Consulting Services set forth in this SOW do not include significant production, modification or customization of Viewyonder licensed software.

i) Security Clearance. Customer acknowledges that if any security resource requirements are required for the Consulting Services pursuant to this SOW, Customer will issue the appropriate security specifications to Viewyonder.

j) Counterparts. This SOW may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement. This SOW may be executed and delivered by facsimile or in Portable Document Format (“PDF”) and the parties agree that such facsimile or PDF execution and delivery shall have the same force and effect as delivery of an original document with original signatures, and that each party may use such facsimile or PDF signatures as evidence of the execution and delivery of this SOW by all parties to the same extent that an original signature could be used.

k) Entire Agreement. This SOW (including the Exhibits) constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all previous communications, representations, understandings and agreements, either oral or written. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Customer may issue to Viewyonder in connection with this SOW will have any effect on, or otherwise modify, the rights, duties or obligations of the parties under this SOW, regardless of any failure of Viewyonder to object to such terms, provisions or conditions. Viewyonder hereby rejects any such additional or conflicting terms and conditions on any Customer purchase order, acknowledgement or other business form, unless expressly otherwise agreed to by the parties in writing.

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