Smartfluence, Inc. End User License Agreement

This End User License Agreement ("Agreement") governs your access and use of website, online, app-based and/or other digital content (the "Exchange") hosted by Smartfluence, Inc., a Delaware corporation ("Provider").

PLEASE READ THIS AGREEMENT CAREFULLY. IT CONTAINSIMPORTANT TERMS THAT AFFECT YOU AND YOUR ACCESS TO AND USE OF THE EXCHANGE. BYACCESSING AND USING THE EXCHANGE, YOU AGREE TO BE BOUND BY THE TERMS OF THISAGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT AND OUR TERMS OFSERVICE, DO NOT ACCESS OR USE THE EXCHANGE. COMMENTS OR QUESTIONS REGARDINGTHIS AGREEMENT MAY BE DIRECTED TO THE CONTACT PROVIDED IN SECTION 18 BELOW. In the event of any conflict between the terms of this Agreement and the terms in the Terms of Service with respect to the Exchange or any other provider you encounter while using the Exchange, this Agreement shall prevail.

This Agreement is a binding agreement between you and Provider, and you are solely responsible for your use of the Exchange and any data, information, materials, statements, analysis or other content (“Provider Content”) made available through the Exchange. Provider reserves the right to add, modify or delete any Provider Content at any time and from time to time, and has no duty to update such Provider Content or to notify you that any Provider Content has been updated.   You hereby represent to Provider that the individual who agrees to this Agreement on your behalf has all requisite legal and corporate power to execute and deliver this Agreement to Provider, such that this Agreement shall become your legal and binding obligation.

1. Consent to Electronic Communications. Provider may be required by law to send communications to you that pertain to the Exchange and your use thereof. By using the Exchange, you consent to receive these communications electronically (e.g., via email, through the Provider website or via the Exchange).

2. User Accounts and Account Security. Upon receiving an invitation from Provider, you will need to register for an account to access the Exchange through app.smartfluence.io. By registering for an account, you represent that you have provided accurate account information and shall promptly update this information if it changes. You also must maintain the security of your account (for example, by not using the same password on other services) and promptly notify Provider if you discover or suspect that someone has accessed your account without your permission. You agree not to disclose or share your password or login credentials with any third party. You are responsible for all activities that occur in connection with your account and accept all risks of unauthorized access.

3. Rights to Access and Use the Exchange and Content. Subject to the terms and conditions of this Agreement and any similar restrictions contained in any Provider Content, Provider grants you permission to access and use the Exchange on any electronic device ("Device") that you own or control. Any Provider software that updates, supplements or replaces the original Exchange or Provider Content is governed by this Agreement unless separate terms accompany such update, supplement or replacement, in which case such separate terms will govern in the event of a conflict with this Agreement or as otherwise provided in such separate terms.

4. Restrictions on Access and Use. This Agreement states the entirety of your rights with respect to the Exchange and Provider Content and Provider reserves all rights in and to the Exchange or Provider Content not expressly granted to you in this Agreement. The license granted to you in Section 3 does not allow you to do any of the following: (a) use the Exchange or Provider Content on any Device you do not own or control; (b) distribute, copy, license, rent, sell, resell, publish, lease or otherwise transfer the Exchange, Provider Content or any other proprietary materials or information of Provider to any third party (except as described in Paragraph 6 in relation to Provider Content); (c) reverse engineer, decompile, disassemble or attempt to discover any source code or trade secrets related to the Exchange, Provider Content or any other proprietary materials or information of Provider; (d) modify, alter or create any derivative works of the Exchange or Provider Content; (e) remove, alter or obscure any copyright, trademark or other proprietary rights notice on or in the Exchange or Provider Content; (f) work around any technical limitations in the Exchange or Provider Content; or (g) use the Exchange or Provider Content for purposes other than your own personal use (except as described in Paragraph 6 in relation to Provider Content). Unless stated in this Agreement or otherwise by Provider, nothing in this Agreement shall be construed as conferring any right or license to intellectual property rights, whether by estoppel, implication or otherwise. If you breach any of these restrictions, you may be subject to prosecution and liability for damages. Your right to access and use the Exchange and any Provider Content are revocable at any time.
You may not use or otherwise export or re-export the Exchange or Provider Content, except as authorized by United States law and the laws of the jurisdiction in which the Exchange or any Provider content was obtained. In particular, but without limitation, the Exchange and the Provider Content may not be exported or re-exported to (a) any U.S. embargoed countries; or (b) anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. By accessing and using the Exchange or Provider Content, you represent and warrant that (a) you are not located in a country that is subject to a U.S. Government embargo or that has been designated by the U.S. Government as a "terrorist supporting" country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties. You will comply with all applicable laws, rules and regulations, including, but not limited to, U.S. export control laws.

5. Ownership of the Exchange. The Exchange and Provider Content are made available to you on a continued basis in exchange for the payment of certain amounts by you to Provider.  The Exchange and Provider Content are the valuable property of Provider and its licensors and is protected by copyright and other intellectual property laws and treaties. Provider, and its licensors, own all right, title and interest in and to the Exchange and Provider Content, including all copyright and other intellectual property rights therein. Provider reserves all rights not expressly granted to you herein.

6. Confidentiality. You acknowledge and agree that the Exchange and all Provider Content are Provider’s confidential and proprietary information, and constitute Confidential Information as defined below. You will not use any means to disclose, publish or distribute to any person or entity any Confidential Information or any other materials made available through the Exchange.

"Confidential Information" means any information, whether made available to you via the Exchange and whenever provided to you (prior to the date hereof, as of the date hereof and subsequent to the date hereof), that is not generally available to the public, including without limitation, information relating to trade secrets, products, services, finances, business plans, marketing plans, legal affairs, suppliers, clients, potential clients, prospects, opportunities, contracts and assets of Provider or its affiliates.

7. Consent to Data Practices; Privacy Policy. Without limiting any disclosures in Provider’s Privacy Policy, Provider may collect, use and share information about you, including, but not limited to, information about your use of the Exchange, Provider Content, Device, location, system and application software, and peripherals, that is gathered in connection with your access to and use of the Exchange or Provider Content. For instance, upon receiving an invitation to create an Exchange account, Provider will collect your name, email address, a password you create, and the date and time of each time you login to the Exchange. For information about how Provider collects, uses and shares information about you in connection with your use of the Exchange, please refer to Provider’s Privacy Policy at https://www.smartfluence.io/privacy-policy.

8. Support Services. Provider provides localized end user support in English, and will be available to get you started and answer any questions you may have. You can contact directly through the Provider platform via a live chat service. If you have any questions regarding content, please contact Provider’s team at info@smartfluence.io.

9. No Warranty. TO THE FULLEST EXTEND PERMITTED BY APPLICABLE LAW, YOU ACKNOWLEDGE THAT (A) THE EXCHANGE MAY CONTAIN BUGS, ERRORS AND DEFECTS; (B) USE OF THE EXCHANGE AND PROVIDER CONTENT IS AT YOUR SOLE RISK; AND (C) THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE AND ACCURACY OF THE EXCHANGE AND PROVIDER CONTENT IS SOLELY WITH YOU, AND (D) PROVIDER CONTENT MAY BE INCOMPLETE OR INACCURATE, MAY CONTAIN ERRORS OR MAY HAVE BECOME OUT OF DATE. ACCORDINGLY, THE EXCHANGE AND ALL PROVIDER CONTENT ARE PROVIDED "AS IS," "AS AVAILABLE," WITH ALL FAULTS, DEFECTS AND ERRORS AND WITHOUT WARRANTY OF ANY KIND. PROVIDER DISCLAIMS ALL WARRANTIES (EXPRESS AND IMPLIED AND ARISING BY LAW OR OTHERWISE) REGARDING THE EXCHANGE AND ALL PROVIDER CONTENT AND ITS PERFORMANCE OR SUITABILITY FOR YOUR INTENDED USE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMPLETENESS, ACCURACY OR CURRENTNESS OF PROVIDER CONTENT AND NON-INFRINGEMENT. PROVIDER SHALL HAVE NO LIABILITY OF ANY KIND FOR THE USE OF, OR INABILITY TO USE, THE EXCHANGE OR PROVIDER CONTENT OR FOR ANY LOSS OF DATA. PROVIDER DOES NOT REPRESENT OR WARRANT THAT THE EXCHANGE OR PROVIDER CONTENT WILL BE DELIVERED FREE OF ANY INTERRUPTIONS, DELAYS, OMISSIONS OR ERRORS (COLLECTIVELY, "FAULTS") OR IN A SECURE MANNER OR THAT ANY FAULTS WILL BE CORRECTED. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PROVIDER OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE ANY WARRANTY. IN THE EVENT THAT THE EXCHANGE OR PROVIDER CONTENT IS DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. PROVIDER CONTENT MAY INCLUDE CALCULATIONS OR FIGURES THAT HAVE BEEN PREPARED INTERNALLY AND HAVE NOT BEEN AUDITED OR VERIFIED BY A THIRD PARTY. USE OF DIFFERENT METHODS FOR PREPARING, CALCULATING OR PRESENTING INFORMATION MAY LEAD TO DIFFERENT RESULTS AND SUCH DIFFERENCES MAY BE MATERIAL. CERTAIN INFORMATION CONTAINED THEREIN MAY BE BASED ON OR DERIVED FROM INFORMATION PROVIDED BY INDEPENDENT THIRD-PARTY SOURCES. PROVIDER MAKES NO REPRESENTATIONS THAT IT HAS VALIDATED ANY SUCH INFORMATION, OR TO THE COMPLETENESS, CURRENTNESS, OR ACCURACY OF SUCH INFORMATION.

10. Forward-looking statements. Forward-looking statements can be identified by the fact that they do not relate strictly to historical or current facts. Those statements can be identified by the use of words including but not limited to "believe," "expect," "plan," "may," "will," "should," "anticipate" or similar statements or the negative of these words or statements. These forward-looking statements are based on our expectations as of the date such forward-looking statements are made. Such forward-looking statements are not to be viewed as fact or as a guarantee of performance or achievement of any particular results, and are made subject to numerous assumptions, risks, uncertainties and other factors. Provider undertakes no obligation to update forward-looking statements to reflect events or circumstances that occur after the date the statements were made.

11. Provider Professionals. The Confidential Information included in the Provider Content may include studies, reports and other documents of third parties retained by the Provider, including without limitation outside accountants, auditors, attorneys, appraisers, experts and consultants to the Provider (collectively, “Provider Professionals”). You release the Provider Professionals and any of their affiliates or any of their respective directors, officers, shareholders, partners, members, employees or advisors (“Related Parties”) from and against, and you waive, any and all claims, rights, causes of action, damages, losses, settlements, judgments, costs, expenses and liabilities of any kind that you have, or hereafter may or shall have, in connection with the Confidential Information authored by such Provider Professional, any information contained therein or omission therefrom or any discussions related thereto.

12. Indemnification. To the fullest extent permitted by applicable law, you agree to indemnify, defend, and hold harmless Provider and Provider’s respective past, present and future employees, officers, directors, contractors, consultants, equity holders, service providers, parent companies, subsidiaries, clients, affiliates, agents, representatives, predecessors, successors and assigns (the "Provider Parties") from all losses, claims, whether in tort, contract or otherwise (“Claims”), costs and expenses (collectively, “Losses”) of any Provider Party arising out of, in connection with, resulting from or based on allegations of (i) a breach or alleged breach of your obligations under this Agreement or (ii) any third party’s Claims of any kind, including damages to property or personal injury, that arise from or relate to your access or use of the Exchange or Provider Content. In the event of any third party Claim that the Exchange, or your use thereof, infringes any intellectual property rights of a third party, you agree to contact Provider promptly and directly. You will cooperate with the Provider Parties in defending such Claims. Provider Parties shall have control of the defense or settlement of any third party Claims. This indemnity is in addition to, and not in lieu of, any indemnities set forth in any other written agreement between you and Provider.

13. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PROVIDER OR ANY OF THE PROVIDER PARTIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, INCOME OR PROFITS, LOSS OF USE OR DATA, LOSS OR DIMINUTION IN VALUE OF ASSETS OR SECURITIES, OR DAMAGES FOR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO YOUR ACCESS OR USE OF THE EXCHANGE OR PROVIDER CONTENT (INCLUDING, BUT NOT LIMITED TO, ANY DAMAGES CAUSED BY OR RESULTING FROM RELIANCE BY ANY USER ON ANY PROVIDER CONTENT OR OTHER INFORMATION OBTAINED FROM PROVIDER, OR FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETIONS OF FILES OR EMAILS, ERRORS, DEFECTS, BUGS, VIRUSES, TROJAN HORSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM ACTS OF GOD, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO PROVIDER'S RECORDS, PROGRAMS OR SYSTEMS), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, SIMPLE NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), STRICT PRODUCT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY (EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE).
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF PROVIDER AND THE PROVIDER PARTIES (JOINTLY), WHETHER IN CONTRACT ARISING OUT OF OR IN ANY WAY RELATED TO THE EXCHANGE OR PROVIDER CONTENT EXCEED TEN DOLLARS ($10.00).

14. Term; Termination. This Agreement will begin from the date you first access or use the Exchange and will continue until Provider elects, in its sole discretion, to terminate this Agreement (you will be notified of any such termination). Your account may, in Provider’s sole discretion, be automatically deactivated after an extended period of inactivity. Notwithstanding anything contained in this Agreement, Provider reserves the right, without notice and in our sole discretion, to terminate your right to access or use the Exchange or Provider Content, and to block or prevent your future access to and use of the Exchange or Provider Content.

15. Governing Law; Arbitration. This Agreement will be governed and construed under the laws of the State of New York without regard to conflicts of law provisions. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be determined by arbitration administered by and in accordance with the Streamlined Arbitration Rules and Procedures ("Rules") of the Judicial Arbitration and Mediation Services ("JAMS"), which are available on the JAMS website and hereby incorporated by reference. You either acknowledge and agree that you have read and understand the rules of JAMS or waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason. The number of arbitrators shall be one. The place of arbitration shall be New York County, New York.

16. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to your use of the Exchange and your accessing Provider Content through the Exchange. Notwithstanding the foregoing, this Agreement does not supersede, replace or nullify any other agreement between Provider and you.  In the event of a conflict between the terms of this Agreement and any other agreement between you and Provide, such other agreement will control.

17. Severability. If any term, clause or provision of this Agreement is held invalid or unenforceable, then that term, clause or provision will be interpreted to mean its maximum enforceable effect pursuant to applicable law so as to effect the intent of this Agreement, and will otherwise be severable from this Agreement and will not affect the validity or enforceability of any remaining part of that term, clause or provision, or any other term, clause or provision of this Agreement.

18. Contact. If you have any questions or concerns regarding the Exchange, Provider Content or this Agreement, please contact info@smartfluence.io.

Provider at:
Smartfluence, Inc.
575 5th Avenue, Floor 14
New York, NY 10017

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