TimeViz Terms of Service

Please read these Subscription Service Terms and Conditions (the “Agreement”) carefully as they are a legal agreement between you (“Subscriber”) and Dev Shack, LLC. (“TimeViz”). This Agreement governs Subscriber’s use of TimeViz's Service (as defined below), unless Subscriber and TimeViz have entered into a separate written agreement. BY INDICATING YOUR ACCEPTANCE TO THIS AGREEMENT OR ACCESSING OR USING THE TimeViz's SERVICE, SUBSCRIBER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT.

If you are accessing and using the Service on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to this Agreement. In that case, “Subscriber” will refer to that company or other legal entity.

1. Definitions.

"App End-Users” means the final end users of the Subscriber App(s).

“Documentation” means documentation for the TimeViz Integration Code and TimeViz Platform made available to Subscriber through the Site.

“Intellectual Property Rights” means any patent, copyright, trademark, service mark, trade name, trade secret, know-how, moral right or other intellectual property right under the laws of any jurisdiction, whether registered, unregistered, statutory, common law or otherwise (including any rights to sue, recover damages or obtain relief for any past infringement, and any rights under any application, assignment, license, legal opinion or search).

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“Person” means any individual, corporation, partnership, trust, limited liability company, association, governmental authority or other entity.

“Personal Data” has the meaning assigned to the term “personal data” or “personal information” under applicable data privacy and data protection laws, rules and regulations.

“Sensitive Personal Data” means a subset of Personal Data which, due to its nature, has been classified by law or by policy as deserving additional privacy and security protections. Sensitive Personal Data includes Personal Data regarding EU residents that is classified as a “Special Category of Personal Data” under EU law, which consists of the following data elements: (1) race or ethnic origin; (2) political opinions; (3) religious or philosophical beliefs; (4) trade union membership; (5) genetic data; (6) biometric data where processed to uniquely identify a person; (7) health information; (8) sexual orientation or information about the individual’s sex life; or (9) information relating to the commission of a criminal offense.

“Service” or “TimeViz Service” means, collectively, the TimeViz Platform and the TimeViz Integration Code.

“Service Tier” means the Service tier that Subscriber chooses from the available options provided by TimeViz on the Site.

“Subscriber App(s)” means the Subscriber’s application(s) which Subscriber chooses to use with the Service.

“Subscriber Data” means any information, data or content that is submitted, collected, transmitted or otherwise provided by or on behalf of Subscriber through the Service, including data from App End-Users, but excluding, for clarity Aggregate Data and any information, data or content owned or controlled by TimeViz and made available through or in connection with the Service.

“Subscription Fees” means the subscription fees for access and use of the Service in accordance with the Service Tier that Subscriber chooses.

“Subscription Term” means the period during which Subscriber has agreed to subscribe to the Service.

“User” means an employee, independent contractor or consultant of Subscriber authorized by Subscriber to use the Service on behalf of Subscriber.

“Workflow” means an enterprise grade business workflow application provided by a third party, not TimeViz.

“TimeViz Integration Code” means the executable form of TimeViz's proprietary software development code downloadable by Subscriber from the TimeViz Platform that is configured by Subscriber and included in the Subscriber App(s) to enable data to be transmitted from the Subscriber App(s) to the TimeViz Platform, as further specified in the Documentation.

“TimeViz IP” means the Service, the underlying software provided in connection with the Service, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Service, the Documentation and the look and feel of the Service (including any custom fonts, graphics and button icons), and all improvements, modifications or enhancements to the foregoing, and all Intellectual Property Rights in and to any of the foregoing.

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“TimeViz Platform” means the cloud-based, hosted service made available through https://timeviz.co (the “Site”), as further specified in the Documentation.

2. Access to Service; License Grant.

3. Subscription Fees.

4. Workflows.

Workflows compatible with the Service are described in the Documentation. In some instances, as described in the Documentation, enabling a Workflow for use with the Service requires Subscriber to implement the third-party Workflow provider’s own SDK or code on the SubscriberApp(s). Subscriber must license Workflows separately directly from the third-party Workflow provider; TimeViz does not provide access to Workflows to Subscriber and is not responsible for any compatibility issues, errors or bugs in the Service in whole or in part caused by the Workflows.

5. Access and Use Restrictions; Suspension.

Subscriber will not at any time and will not permit any Person (including, without limitation, Users) to, directly or indirectly: (a) copy, distribute, rent, sell, lease, lend, or transfer the Service; (b) make the Service available to any third party, except as expressly permitted by this Agreement; (c) use the Service on a service bureau basis; (d) decompile, reverse engineer, or disassemble any software component of the Service; (e) alter or modify any software component of the Service; (f) create derivative works based on the Service or any components thereof; (g) modify, remove, or obscure any copyright, trademark, patent or other notices or legends that appear with the Service; (h) interfere with or impair the operation of the Service by any means including introduction of malware or excessive usage or network traffic; (i) use any automated methods (including “robots” or “crawlers”) to download or “scrape” any data or materials from the Service, (j) use the Service to collect or process any Sensitive Personal Data, (k) use the Service, Documentation or any other TimeViz Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Service, or (l) disclose any performance tests or other performance information related to the Service to any third parties. In the event that TimeViz reasonably believes that Subscriber is using the Service in violation of this Agreement, TimeViz may suspend Subscriber’s access to the Service with or without advanced notice in addition to and without prejudice to any other remedies TimeViz may have.

6. TimeViz Obligations.

7. Representations and Warranties.

Each party hereby represents and warrants to the other party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has the right to enter into this Agreement and (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such party.

8. Service Warranty; Disclaimer.

9. Beta Services; Free Trials.

10. Subscriber Data.

a) License. Subscriber grants TimeViz a non-exclusive, non-transferable (except in compliance with Section 16(f)), worldwide, fully-paid, royalty-free license during the Subscription Term to, and to permit TimeViz's subprocessors to, use, copy, distribute, modify for transmission and display and publicly perform Subscriber Data solely for the purpose of providing the Service to Subscriber and Users. b) Warranty. Subscriber represents and warrants that: (a) the Subscriber Data does not and will not infringe, violate or misappropriate the Intellectual Property Rights of any third party; (b) Subscriber has complied and will continue to comply with all laws and regulations applicable to its use of the Subscriber Data under this Agreement, including but not limited to applicable data privacy protection laws and regulations; (c) Subscriber has obtained and will continue to have all required consents, rights and permissions for the access to and use the Subscriber Data (including any Personal Data provided or otherwise collected pursuant to Subscriber’s privacy policy) as contemplated by this Agreement; and (d) TimeViz's use of the Subscriber Data in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Subscriber and any third party. c) Data Processing Addendum. Each Party will comply with its obligations set forth in the Data Processing Addendum attached hereto as Attachment 1. d) Aggregate Data. TimeViz shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Service and related systems and technologies (including, without limitation, information that is derived or aggregated in deidentified from (i) Subscriber Data, and (ii) Subscriber’s and/or its Users use of the Service, such as usage data or trends with respect to the Service) (such data and information, collectively, “Aggregate Data”).

11. Term and Termination.

a) Term. This Agreement is effective as of the date on which Subscriber first accesses the Service through any online provisioning, registration or order process. This Agreement will govern Subscriber’s initial subscription to the Service on the Effective Date as well as any subsequent renewals. Unless this Agreement is terminated in accordance with this Section 11 or otherwise agreed by the parties in writing, (i) Subscriber’s subscription to the Service will renew for a Subscription Term equivalent in length to the then expiring Subscription Term and (ii) the Subscription Fees applicable to the subsequent Subscription Term shall be TimeViz's fees for the applicable Service Tier at the time such subsequent Subscription Term commences. Either party may elect to terminate this Agreement and Subscriber’s subscription to the Service as of the end of the then current Subscription Term by providing notice to the other party no less than thirty (30) days prior to the end of such Subscription Term. b) Termination for Breach. Either party may terminate this Agreement upon notice if the other party materially breaches this Agreement, provided that: (i) such party gives notice to the breaching party describing the manner in which this Agreement has been breached, and (ii) the breach is not cured within 30 days as of receipt of such notice. TimeViz may further immediately terminate this Agreement if Subscriber fails to pay any Subscription Fees when due. c) Effect of Termination or Expiration. Upon expiration or termination of this Agreement: (i) the rights granted pursuant to Sections 2(a) and 2(b) will terminate; (ii) TimeViz may irrevocably delete any and all information associated with Subscriber’s account, including Subscriber Data; (iii) Subscriber will return or destroy, at TimeViz's sole option, all copies of the TimeViz Integration Code and all TimeViz Confidential Information in its possession or control, including permanent removal of such TimeViz Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Subscriber’s possession or under Subscriber’s control, and at TimeViz's request, certify in writing to TimeViz that the TimeViz Integration Code and TimeViz Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted. Notwithstanding the foregoing, TimeViz will assist Subscriber in exporting Subscriber Data from the Service for up to thirty (30) days following the termination or expiration of this Agreement, if Subscriber requests this assistance prior to the termination or expiration of this Agreement. No expiration or termination will affect Subscriber’s obligation to pay all Subscription Fees that may have become due or otherwise accrued through the effective date of expiration or termination, or entitle Subscriber to any refund. d) Survival. This Section 11(d) (Survival) and Sections 2(c) (Third-Party Software), 2(d) (Users), 3 (Subscription Fees), 8(b) (Disclaimer), 10(d) (Aggregate Data), 11(c) (Effect of Termination or Expiration), 12 (Confidential Information), 13(a) (Proprietary Rights), 13(b) (Reservation of Rights), 13(d) (Feedback), 14 (Indemnification), 15 (Limitation of Liability) and 16 (General Provisions), survive any termination or expiration of this Agreement.

12. Confidential Information.

a) Definition. “Confidential Information” means any information that one party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure. For clarity: (a) all Subscriber Data is Confidential Information of Subscriber, and (b) any and all non-public features of the Service and Documentation including and all pages and materials on the TimeViz website that are accessible only after logging in are Confidential Information of TimeViz. Notwithstanding the foregoing, Confidential Information does not include information that: (i) was rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (ii) is independently developed by Receiving Party without use of or reference to the Disclosing Party’s Confidential Information; (iii) becomes known publicly, before or after disclosure, through no act or failure to act by the Receiving Party; or (iv) is approved for release in writing by the Disclosing Party. b) Confidentiality Restrictions. The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that TimeViz may use and modify Confidential Information of Subscriber in deidentified form for purposes of developing and deriving Aggregate Data. The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure. c) Term. Each party’s obligations of non-disclosure with regard to Confidential Information will expire five (5) years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

13. Intellectual Property.

a) Proprietary Rights. ‍ i. Ownership by TimeViz. The TimeViz IP is the exclusive property of TimeViz. Subject to the limited rights expressly granted in this Agreement, TimeViz reserves and, as between the parties will solely own, all right, title and interest in and to the TimeViz IP. ‍ ii. Ownership by Subscriber. TimeViz asserts no ownership rights in Subscriber Data. As between the parties, subject to the limited rights granted to TimeViz in this Agreement, Subscriber owns all right, title and interest in and to the Subscriber Data, including all Intellectual Property Rights therein. b) Reservation of Rights. No rights are granted to either party hereunder (whether by implication, estoppel, exhaustion or otherwise) except as expressly set forth in this Agreement. c) Logo Usage. During the Subscription Term, TimeViz may use Subscriber’s name, logos and trademarks in listings of TimeViz's customers on TimeViz's website and in other public statements or disclosures for the purposes of marketing the Service. All goodwill and improved reputation generated by TimeViz's use of the Subscriber’s name, logos and trademarks inures to the exclusive benefit of Subscriber. TimeViz will use Subscriber’s name, logos and trademarks in the form stipulated by Subscriber and will conform to and observe such standards as Subscriber prescribes from time to time in connection with the right granted hereunder. d) Feedback. From time to time Subscriber or its employees, contractors, or representatives may provide TimeViz with suggestions, comments, feedback or the like with regard to the Service (collectively, “Feedback”). Subscriber hereby grants TimeViz a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with TimeViz's business purposes, including, without limitation, the testing, development, maintenance and improvement of the Service.

14. Indemnification.

a) Subscriber Indemnification. Subject to Section 14(d), Subscriber will defend TimeViz against any claim, suit or proceeding brought by a third party (“Claims”) arising from (i) any Subscriber Data, including, without limitation, (A) any Claim that the Subscriber Data infringes, misappropriates or otherwise violates any third party’s Intellectual Property Rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of Subscriber Data violates any applicable law, rule or regulation or any Subscriber’s privacy policy; (ii) any of Subscriber’s products or services (including the Subscriber App(s)); and (iii) use of the Service by Subscriber or its Users in a manner that is not in accordance with this Agreement or the Documentation, including, without limitation, any breach of the license restrictions in Section 5 (Access and Use Restrictions; Suspension), and in each case, will indemnify and hold harmless TimeViz against any damages and costs awarded against TimeViz or agreed in settlement by Subscriber (including reasonable attorneys’ fees) resulting from such Claim. b) TimeViz Indemnification. Subject to Section 14(d), TimeViz will defend Subscriber against Claims alleging that Subscriber’s use of the Service infringes or misappropriates such third party’s Intellectual Property Rights, and will indemnify and hold harmless Subscriber against any damages and costs awarded against Subscriber or agreed in settlement by TimeViz (including reasonable attorneys’ fees) resulting from such Claim. TimeViz's obligations under this Section 14(b) will not apply if the underlying third-party Claim arises from or as a result of: (i) Subscriber’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Subscriber Data; (iii) Subscriber’s failure to use any enhancements, modifications, or updates to the Service that have been provided by TimeViz; (iv) modifications to the Service by anyone other than TimeViz; or (v) combinations of the Service with software, data or materials not provided or approved by TimeViz. c) IP Remedies. If TimeViz reasonably believes the Service (or any component thereof) could infringe any third party’s Intellectual Property Rights, TimeViz may, at its sole option and expense, use commercially reasonable efforts to: (i) modify or replace the Service, or any component or part thereof, to make it non-infringing; or (ii) procure the right for Subscriber to continue using the Service. If TimeViz determines that neither alternative is commercially practicable, TimeViz may terminate this Agreement, in its entirety or with respect to the affected component, by providing written notice to Subscriber. The rights and remedies set forth in this Section 14 will constitute Subscriber’s sole and exclusive remedy and TimeViz's sole and exclusive liability for any infringement or misappropriation of Intellectual Property Rights in connection with the Service. d) Indemnification Procedure. The party seeking defense and indemnity (the “Indemnified Party”) will promptly (and in any event no later than thirty (30) days after becoming aware of facts or circumstances that could reasonably give rise to any Claim) notify the other party (the “Indemnifying Party”) of the Claim for which indemnity is being sought, and will reasonably cooperate with the Indemnifying Party in the defense and/or settlement thereof. The Indemnifying Party will have the sole right to conduct the defense of any Claim for which the Indemnifying Party is responsible hereunder (provided that the Indemnifying Party may not settle any Claim without the Indemnified Party’s prior written approval unless the settlement is for a monetary amount, unconditionally releases the Indemnified Party from all liability without prejudice, does not require any admission by the Indemnified Party, and does not place restrictions upon the Indemnified Party’s business, products or services). The Indemnified Party may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if the Indemnifying Party refuses to fulfill its obligation of defense, the Indemnified Party may defend itself and seek reimbursement from the Indemnifying Party.

15. Limitation of Liability.

a) Waiver of Indirect Damages. IN NO EVENT WILL TimeViz BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES OR OTHER ECONOMIC LOSS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE TimeViz IP OR THE PROVISION OF THE SERVICE, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. b) Cap on Liability. IN NO EVENT WILL TimeViz BE LIABLE FOR AGGREGATE DAMAGES IN EXCESS OF (A) THE TOTAL SUBSCRIPTION FEES PAID BY SUBSCRIBER TO TimeViz DURING THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY, OR (B) ONE HUNDRED DOLLARS ($100), IF SUBSCRIBER HAS NOT HAD ANY PAYMENT OBLIGATIONS TO TimeViz, AS APPLICABLE, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED. c) Independent Allocation of Risk. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN TimeViz AND SUBSCRIBER.

16. General Provisions.

a) Governing Law; Venue. This Agreement shall be governed by the laws of the State of Virginia without regard to conflict of law principles. Subscriber and TimeViz agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located in Arlington, Virginia for the purpose of litigating all claims or disputes, and waive any and all objections regarding venue or inconvenient forum in such courts. b) Amendments. TimeViz may amend this Agreement from time to time upon written notice to Subscriber (which may be provided on the Site). Subscriber’s continued use of the Service following the effective date of any such amendment will mean that Subscriber has accepted and agreed to the changes. c) Waiver. A party’s failure to require performance of any provision of this Agreement shall not affect its right to require performance at any time thereafter, nor shall a waiver of any breach or default constitute a waiver of any subsequent breach or default. d) Severability. If any part of this Agreement is determined to be invalid or unenforceable, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of this Agreement will continue in effect. e) Headings. Use of paragraph headers in this Agreement is for convenience only and shall not have any impact on the interpretation of particular provisions. f) Assignment. Neither party may assign this Agreement without the other party’s express written consent, except that TimeViz may assign this Agreement to its successor by way of merger, acquisition, reorganization, or sale of stock or assets. Any attempt to assign or transfer this Agreement in violation of this Section will be void. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the parties and their respective successors and permitted assigns. g) Notices. All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be deemed given: (i) one (1) business day after deposit with a nationally-recognized express courier, with written confirmation of receipt; (ii) when sent by email, on the date the email was sent if sent during normal business hours of the receiving party, and on the next business day if sent after normal business hours of the receiving party; or (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid. All such notices will be sent to: (i) if to TimeViz, 548 Market St, PMB 86125, San Francisco, CA 94104, [email protected], or (ii) if to Subscriber, to the address and email provided by Subscriber on its account with the Service; or to such other address as may be specified by either party to the other party in accordance with this Section. Subscriber’s questions or communications regarding the Service can be sent to [email protected] but will not serve as notice under this Agreement. h) Independent Contractors. The relationship between the parties is that of independent contractors. Neither party is nor will represent itself as the agent of the other. i) Force Majeure. To the extent caused by hurricane, earthquake, other natural disaster or act of God, terrorism, war, labor unrest, general failure of the Internet or of communications systems, or other forces beyond the performing party’s reasonable control (collectively, “Force Majeure”), no delay, failure, or default, other than Subscriber’s failure to make payments when due, will constitute a breach of this Agreement. The performing party shall use reasonable efforts to minimize the delays, to notify the other party promptly, and to inform the other party of its plans to resume performance. j) Injunctions. Each party agrees that breach or threatened breach by such party of any of its obligations under Section 12 (Confidentiality) or, in the case of Subscriber, Section 5 (Access and Use Restrictions; Suspension) would cause the injured irreparable injury for which monetary relief would not provide adequate compensation, and that in addition to any other remedies available, the injured party will be entitled to injunctive relief against such breach or threatened breach, without the necessity of proving actual damages or posting a bond or other security. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise. This Section shall not be taken to limit either party’s right to injunctive relief related to breach of a section of this Agreement not listed in this Section. k) Entire Agreement. This Agreement, including its attachments and exhibits, constitutes the entire and exclusive understanding and agreement between Subscriber and TimeViz regarding Subscriber’s use of and access to the Service. This Agreement supersedes all prior or contemporaneous writings, negotiations, and discussions with respect to the subject matter hereof. l) No Third-Party Beneficiaries. No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the parties and their respective successors and assigns.