Astronuts Service Agreement

This Services Agreement (the “Agreement”) dated as of the date set forth in the Customer Order Form  (the “Effective Date”) is entered into by and between Astronuts, Inc., a company duly incorporated under the laws of the State of Delaware, with its principal place of business at 2261 Market Street STE 10150 San Francisco, CA 94114, USA (“Astronuts”) and the customer identified in the Order Form (the “Customer”).  BACKGROUND:  Astronuts is an all-in-one software engineering platform for analytics and actionable insights.  (the “Solution”). This Agreement governs Customer’s access and use of the Solution and any proprietary technology of Astronuts incorporated therein. Any individual accepting this Agreement on behalf of Customer represents and warrants that s/he is authorized to accept this Agreement on behalf of Customer and legally bind Customer to the terms and conditions set forth herein. NOW, THEREFORE, the parties hereby agree as follows: 

1. Solution

Subject to the terms and conditions of this Agreement, Astronuts shall provide Customer with access to the Solution identified in the order form executed by the parties (the “Order Form”) on a non-exclusive basis for the Term of this Agreement.  Such Order Form shall, in addition, set forth the Solution start date (“Solution Start Date”) and the Solution end date (“Solution End Date”). Customer may use the Solution, commencing on the Solution Start Date,  on a non-exclusive basis solely for its internal purposes. Customer shall not be entitled to any other software (including any other executable or source code) from Astronuts. No licenses or rights are granted herein by estoppel or by implication. Customer represents that it has all necessary authority to enter into this Agreement and that the execution of this Agreement and the receipt of the Solution will not conflict with any legal, regulatory or contractual obligations of Customer.

2. Restrictions

Except as set forth expressly herein, Customer shall not, and shall not permit any third party, to (a) reverse engineer or attempt to find the underlying code of, the Solution; (b) modify the Solution, (c) sublicense, sell, distribute or provide the Solution to any third party, or (d) bypass any security measure or access control measure of the Solution or (e) use the Solution to provide services to any third party, including as part of a service bureau or timeshare arrangement. To the extent any of the restrictions set forth in this Section are not enforceable under applicable law, Customer shall inform Astronuts in writing in each instance prior to engaging in the activities set forth above.

3. Data Privacy

In order to provide the Solution and associated analytics, Astronuts collects certain data regarding Customer's systems, code and users, including regarding how the systems and code are used, planned, accessed and developed by employees and service providers of Customer (the "Customer Data"). All Customer Data is the confidential information of Customer and, except as set forth in this Agreement, Astronuts shall not disclose such Customer Data to third parties or use such Customer Data except to provide services to Customer. Certain certified Astronuts analysts may have access to Customer Data in order to understand Customer’s needs, make recommendations and provide support. Customer represents and warrants that it has the right to provide Astronuts with access to all Customer Data, including without limitation the use of Customer's systems and code by its employees and service providers, and including all account and login information that Customer may provide to Astronuts. Customer shall provide its employees and service providers with all notices required under law regarding the use of the Solution. Astronuts analyzes all Customer Data in order to provide Customer with the Solution, including for the purposes of generating analysis and reports for the Customer. In addition, Astronuts may use Customer Data for the purpose of generating aggregate or anonymous data, such as for the purpose of providing benchmarks. Astronuts may also use aggregate or anonymous data for the purpose of improving the Solution, including the algorithms and models used by the Solution. Astronuts will implement reasonable security measures appropriate to the nature of the Customer Data including without limitation, technical, physical, administrative and organizational controls, and will maintain the confidentiality, security and integrity of such Customer Data. Astronuts may disclose Customer Data to the extent required by applicable law or to cooperate with a law enforcement investigation or to enforce its rights under this Agreement. Astronuts may transfer all Customer Data to its affiliate Astronuts Ltd. or use the services of subcontractors located in jurisdictions other than the jurisdiction of the Customer in accordance with the DPA provided at https://astronuts.io/dpa.

4. Intellectual Property

As between the parties, Astronuts has all right, title and interest in the Solution, including all enhancements, improvements and modifications thereof (“Astronuts Property”). Astronuts does not request Customer’s feedback regarding the Astronuts Property. Notwithstanding the foregoing, if Customer provides Astronuts with any feedback regarding the Astronuts Property, Astronuts may use all such feedback without restriction and shall not be subject to any non-disclosure or non-use obligations in respect of such feedback.

5. Confidentiality

Either party (a “Disclosing Party”) may disclose to the other party (a “Receiving Party”) certain confidential information regarding its technology and business (“Confidential Information”). Receiving Party agrees to keep confidential and not disclose or use any Confidential Information except to support its provision or use of the Solution. Confidential Information shall not include information that Receiving Party can show (a) was already lawfully known to or independently developed by Receiving Party without access to or use of Confidential Information, (b) was received by Receiving Party from any third party without restrictions, (c) is publicly and generally available, free of confidentiality restrictions; or (d) is required to be disclosed by law, provided that Receiving Party provides Disclosing Party with prompt notice of such requirement and cooperate in order to minimize such requirement. Receiving Party shall restrict disclosure of Confidential Information to those of its employees with a reasonable need to know such information and which are bound by written confidentiality obligations no less restrictive than those set out herein. All pricing information herein and all non-public information in respect of the Solution shall be deemed the Confidential Information of Astronuts.

6. Payment

In consideration of the use of the Solution pursuant to this Agreement, Customer shall make payment to Astronuts as set forth in the Order Form . Except to the extent set forth otherwise in the Order Form, amounts due hereunder do not include applicable sales, value-added and other taxes, and Customer shall make payment in respect of such taxes in addition to other amounts due hereunder. Customer shall make payment to Astronuts without deduction or withholding of any taxes or other government charges. Late payments shall bear interest at the rate of 18% per annum.

7. Warranties; Disclaimer

Each party warrants that it has full corporate power and authority t=o execute this Agreement and to perform its obligations hereunder; and all corporate action necessary for the authorization, execution, delivery and performance of this Agreement by it have been taken. Astronuts represents and warrants that the Solution will be performed on a good and workmanlike basis consistent with industry standards. Subject to the foregoing, the Solution is provided “as is”. To the maximum extent permitted by applicable law, Astronuts disclaims all implied and statutory warranties, including, but not limited to, any implied warranty of merchantability, fitness for a particular purpose or non-infringement.

8. Indemnification

8.1. Astronuts Indemnification Obligations. Astronuts shall defend (and pay all costs and expense of such defense) Customer from and against any and all  claims, demands, actions or other proceedings by any third party against Customer arising from any claims that the Solution infringes the patent, copyright, trademark or misappropriates the trade secret rights of a third party and will indemnify and hold customer harmless from and against any and all awarded or settled damages, losses or liabilities in connection therewith. Astronuts shall not have any liability to the extent any claim is the result of (a) Astronuts's compliance with specifications provided by Customer, (b) the combination of the Solution with other hardware, software or services not provided by Astronuts, (c) the collection, use or transfer of Customer Data in compliance with this Agreement, (d) Customer’s actions, omissions or breach of this Agreement or (e) Customer’s modification of the Solution. If the Solution shall be the subject of an indemnifiable claim, or Astronuts reasonably believes that the Solution shall be the subject of an indemnifiable claim, Astronuts may terminate this Agreement and Order Form  with written notice.8.2. Customer Indemnification Obligations. Customer shall defend and indemnify Astronuts (and its affiliates, officers, directors and employees) from and against any and all damages, costs, losses, liabilities or expenses (including court costs and attorneys’ fees) which Astronuts may suffer or incur in connection with any actual claim, demand, action or other proceeding by any third party arising from the provision by Customer of any data not in compliance with applicable law.8.3. Procedure. The obligations of either party to provide indemnification under this Agreement will be contingent upon the indemnified party (i) providing the indemnifying party with prompt written notice of any claim for which indemnification is sought, (ii) cooperating fully with the indemnifying party (at the indemnifying party’s expense), and (iii) allowing the indemnifying party to control the defense and settlement of such claim, provided that no settlement may be entered into without the consent of the indemnified party if such settlement would require any action on the part of the indemnified party other than to cease using any allegedly infringing or illegal content or services. Subject to the foregoing, an indemnified party will at all times have the option to participate in any matter or litigation through counsel of its own election at its own expense.8.4. Sole and Exclusive. This Section 8 states Astronuts’s entire obligation and Customer’s exclusive remedy regarding any claims for intellectual property infringement.

9. Limitation of Liability

Limitation of Liability. To the greatest extent allowed under applicable law, in no event shall either party (or its directors, officers, affiliates, agent or employees) have any liability for any consequential, indirect, special or punitive damages, arising out of or relating to this agreement or the provision or use of the Astronuts software or solution. To the greatest extent allowed under applicable law, the entire liability of either party (or its directors, officers, affiliates, agents or employees) herunder or in respect of the software and the solution shall not exceed the total amount Customer has actually paid to Astronuts in respect of the solution. The foregoing limitations of liability to not apply to liability arising from customer’s breach of sections 2, 5 or 6 hereof or the liability of either party pursuant to the indemnification obligations set forth in sections 8.1 and 8.2 hereof.