Terms and conditions

Please carefully read these terms and conditions ( “Terms”) before ordering, accessing, or using the services and the licensed materials. If you are entering into an agreement or any ordering document on behalf of a company or any other legal entity, you represent and warrant that you have the authority to bind such entity to these Terms, in which case the phrases “you” or “your” shall refer to such entity. If you do not have such authority, or if you do not agree with these Terms, you must not accept this agreement or the applicable ordering document and you may not use the services described herein. You agree to be bound by these Terms by accepting to be bound by this agreement through the online acceptance mechanism provided by Fleexer or by submitting payment in response to an ordering document that references these Terms.

Fleexer reserves the right to amend, remove, or add to these Terms at any time with or without notice. Such modifications shall be effective immediately. If at any time you no longer agree to be bound by these terms, you must immediately stop accessing the services related to these Terms, you may no longer use licensed materials in your possession, and you must delete any licensed materials that are stored in your possession, in accordance with this agreement. These Terms, as well as any other documentation related to the Licensed Materials executed between You and Fleexer with respect thereof (collectively, “Agreement”), is made by and between Fleexer Management Inc., a corporation validly existing under the laws of Quebec, Canada ( “Fleexer” or “Licensor”) and the specific person or entity identified as the licensee or customer or party thereto in the associated agreement, ordering document, or purchase order ( “Licensee” or “You”). Licensee and Licensor may be collectively referred to as the “Parties” or individually as a “Party.” The Terms set forth in this Agreement governs Your purchase and use of the Services and Licensed Materials (as defined herein, respectively) and shall be effective at the time and in the manner as described herein ( “Effective Date”). Except with Fleexer’s prior written consent, You may not access the Services or Licensed Materials if You directly compete with Fleexer’s business in any material way. You may not access the Services or Licensed Materials for purposes of monitoring the availability, performance, or functionality of the Services or Licensed Materials, or for any other benchmarking or competitive purposes as related to Fleexer’s business.

1. DEFINITIONS

   “Aggregate Data”

   means Licensee Data in de-identified and aggregate form.

   “Confidential Information” 

   means any information disclosed (in each case, by or on behalf of, a Party) in the course of this Agreement that is, or should be reasonably understood to be, confidential to a Party, including, without limitation, the terms of this Agreement, the Services and Licensed Materials (including Downloaded Content, as defined herein), as well as financial, business, and technical plans and strategies, pricing information, inventions, and new products, services, and technologies of either Party. Confidential Information does not include information that the recipient already rightfully knew, that becomes public through no fault of the recipient, that was independently developed by the recipient, or that was lawfully given to the recipient by a third party who was under no obligation of confidentiality.

   “Hub”

   means a customized grouped subsection of the Platform created and controlled by a third-party forming part of the overall technology ecosystem whereupon Licensee and other users of the same group will interact through the use of the Platform, based on common interests, projects and business goals. A plurality of Hubs comprises the technology ecosystem portfolio accessible to users of the Platform.

   “License” 

   means a current and valid license to access or use the Services, and which may include, but is not limited to, purchased subscription to the Services for one or more Users, a trial subscription to the Services granted for one or more Users associated with a Licensee, or any other valid and authorized right/license as permitted by Licensor.

   “Licensee” or “You” or “Your”

   means the company or other legal entity which holds a License for the Services. For purposes of this agreement, Licensee also refers to and incorporates the authorized Users associated with your company or other such authorized License.

   “Licensee Data”

   means information, data, dataset, compilation of data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Licensee or an authorized User by or through the Services (including the Platform) or that incorporates or is derived from the processing of such information, data or content by or through the Services. For the avoidance of doubt, Licensee Data includes information reflecting the access or use of the Platform by or on behalf of Licensee or any authorized User other than information, data and other content that is derived by or through the Services from processing Licensee Data but that is sufficiently different from such Licensee Data that such Licensee Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further processing of such information, data or content.

   “Licensed Materials”

   means the Platform, as well as all content and data and reports, including without limitation, metrics, calculations, text, research, ratings, rankings, opinions, photographs, video, audio, graphics, tools, analytics, functionality, products and information displayed and/or otherwise provided by the Services.

   “Platform”

   means Fleexer’s proprietary software application known as “SWARM”, which includes machine learning algorithms allowing for the mapping of a corporate landscape and related predictive capabilities or applications and any third-party or other software that Fleexer provides access to, and use of, as part of the Services.

   “Services” 

   means any of the paid or trial subscriptions to various online, web-based applications, API, data feeds, software, materials, data downloads and plugins offered through or accessed by the Platform, as well as the Licensed Materials contained therein, as applicable.

   “Third-Party Applications”

   means optional, Web-based applications and offline software products or data that are provided by third parties and which Licensee may elect to install for use with the Services, and which are not required to use the Services, but interoperate with the Services.

   “User” or “Users”

   means an individual or individuals who are authorized by Licensee to use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied user identifications and passwords by Licensee (or by Licensor at Licensee’s request). Users are limited to Licensee’s employees, contractors and agents who have a valid business relationship and email address with Licensee’s organization.

2. PURPOSE, RIGHTS, AND LICENSE

   1. Provision of Services and Subscriptions.

      Licensor shall make the Services available to Licensee pursuant to this Agreement or other ordering documentation during the duration of the subscription ( “Subscription Term”). To subscribe to the Services, Licensee, and each of its authorized Users, must accept these terms. Unless expressly stated otherwise in any other agreement signed by both Parties, in the event of a conflict between this Agreement and such document, this Agreement will control. Accepting these Terms through the click-wrap mechanism provided by Fleexer constitutes acceptance and agreement by Licensee to subscribe to the Services in accordance with the terms of this Agreement. Licensor expressly rejects any additional or different terms, including but not limited to terms added or appended to this Agreement by Licensee, unless agreed to in writing by both Parties. The individual executing this Agreement on behalf of Licensee represents and warrants that they do so with the authority to bind Licensee by executing and submitting such documents.

   2. Subcontractors.

      Fleexer may, from time to time, in its discretion, engage third parties to perform the Services (each, a Subcontractor).

   3. License Grant.

      Licensor grants to Licensee a nonexclusive, nontransferable, and limited license to use the Platform and all other Licensed Materials provided by the Services only as expressly permitted herein. The Services are solely and exclusively for Licensee’s use and shall not be used for any illegal purpose or in any manner inconsistent with the provisions of the terms of this Agreement. Except as expressly provided herein, Users may use the Services, including any Licensed Materials contained therein, solely in the regular and ordinary course of Licensee’s business and for internal use only. Licensee further agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Licensor regarding future functionality or features.

   4. Updates to the Platform.

      Fleexer reserves the right to make, at no additional fee to the Licensee, updates and changes to the Platform (including maintenance releases, bug fixes, corrections, and minor modifications) that Fleexer makes generally available to its other customers ( Updates); provided that Fleexer will not make any updates, change, or Updates that materially decrease the core functionality of the Platform that impact the Licensee during the Subscription Term. Fleexer shall incur no liability for loss of functionality or any other prejudice incurred by Licensee due to its own decision not to install in due course all available updates and make them available to all authorized Users once notified of their availability by Fleexer. Fleexer may periodically launch new or significantly different add-on Services, enhancements, or services that are outside the scope of this Agreement and which have additional fees. Such add-on Services, enhancements or services will not be considered an Update. The Licensee is under no obligation to use or pay for such new add-on Services, enhancements, or services, and the use or deployment of those services will be subject to a separate agreement between the Parties, if applicable.

   5. Beta Services.

      From time to time, Fleexer may make available to the Licensee, at no additional cost, services or functionality which is designated as beta, preview, evaluation, or similar description ( “Beta Services”). If the Licensee chooses to use Beta Services (at its sole discretion), it acknowledges and agrees that those Beta Services are intended and made available for evaluation purposes only, are not for production use, are not supported, are provided on an “as is” basis excluding any express or implied representations or warranties or any kind, and such Beta Services may be subject to additional terms. The Licensee acknowledges and agrees that: (a) Beta Services are not considered “Services” under this Agreement; and (b) all restrictions, Fleexer’s reservation of rights, and the Licensee’s obligations concerning the Services, shall apply to the Licensee’s use of Beta Services. The Licensee’s right to use Beta Services will expire on the date that a version of the Beta Services becomes generally available to customers, provided that in the event that the Beta Services are rolled out and become available as a Service under this Agreement, additional terms, conditions, and fees shall apply all as provided for in a statement of work. Fleexer may discontinue Beta Services (at its sole discretion) and may never make them generally available. Unless otherwise provided in this Agreement, which, for the avoidance of doubt, includes the indemnities set out in this Agreement, Fleexer disclaims any liability for any harm or damage arising out of or in connection with a Beta Service. Fleexer shall not implement or provide any Beta Services to Licensee without prior written approval of the Licensee.

   6. Submissions.

      Certain portions of the Services may provide user-generated features that permit Users to upload, submit, store, send, or receive certain content in addition to the Licensed Materials ( “Submissions”). As between Fleexer and Licensee, Licensee shall own and be responsible for all Submissions to the extent such Submissions are not Licensed Materials or other proprietary property of Fleexer. Subject to this Agreement, Licensee grants Licensor a worldwide, non-exclusive, limited term license to access, use, process, and display Submissions, but only as reasonably necessary to: (i) provide and improve the Services to and for Licensee; (ii) address and resolve any security, support or technical issues; (iii) disclose certain information as required or compelled by applicable law; and (iv) act as expressly permitted in writing by Licensee. Licensee certifies and warrants that the Submissions shall further comply with the terms set forth herein and further acknowledges and agrees that any such Submissions do not create any new or alter any existing relationship between the Parties. Licensor reserves the right to remove any such Submissions which, in Licensor’s sole discretion, violate the terms of this Agreement.

   7. Authorized Use.

      Subject to the terms set forth in this Agreement, Licensee is permitted to: Download and/or print select and limited portions of Licensed Materials to a location or storage device under Licensee’s exclusive control and only for Licensee’s own use ( “Downloaded Content”); Extract, quote and/or distribute such Licensed Materials or Downloaded Content for aggregate-level work product ( “Reports”), but only internally (i.e. within Licensee’s organization and not to any third-parties) and only for Licensee’s own use and in the regular course of work; From time to time, excerpt or distribute Licensed Materials in articles, blogs or other content or materials that Licensee makes publicly available, provided that (i) Licensee shall display no more than ten (10) individual lines of Licensed Materials (for example companies or transactions) in any such content or materials; (ii) all such Licensed Materials displayed shall include a reasonably conspicuous notice as follows: “Powered by SWARM” or similar language reasonably acceptable to Licensor and included using a font size which is not substantially lesser than any other included font; and (iii) if the Licensed Materials are taken from a public Fleexer webpage and appear in any of Licensee’s content or materials online, Licensee may not modify such content without Licensor’s consent and Licensee must also use commercially reasonable efforts to provide a correct and accessible URL link to the public Fleexer webpage from which such Licensed Materials were taken; and From time to time, excerpt and distribute in electronic form or hard copies to third parties (to support Licensee’s primary business) limited, insubstantial portions of Licensed Materials; provided, however, that in all cases Licensee preserves all copyright notices and other proprietary notices and credits Fleexer, as applicable. Recipients of such Licensed Materials shall be authorized to use the Licensed Materials only for their own internal use and shall be prohibited from any further distribution. Under no circumstances shall Licensee distribute Licensed Materials in any quantity or manner that would serve as a substitute for the purchase of the Services or Licensed Materials by the recipient.

   8. Notwithstanding anything to the contrary in Section 2.6.1, Licensee agrees and acknowledges it will not share or promote any excerpt or distribution of the Licensed Materials with the media (in any form) without Fleexer’s prior written consent. Licensee further agrees and acknowledges that the access and distribution of such Licensed Materials and/or Downloaded Content shall comply, in all instances, with this Agreement, and any applicable law.

   9. Usage Restrictions.

      Licensee agrees and warrants that Licensee shall not: Use the Services, Licensed Materials, Platform or Downloaded Content in a manner contrary to or in violation of any applicable laws; Copy, reproduce, modify, distribute, publicly display, use or disclose the Services, Licensed Materials, or Downloaded Content, except as expressly permitted in this Agreement; Sell, license, or commercially distribute the Services, Licensed Materials, or Downloaded Content to third parties or use as a component of, or as a basis for, any material offered for sale, license, or commercial distribution, including using the Licensed Materials as a primary source to create and/or maintain any market index or database that Licensee publishes or distributes to third parties; Distribute or commercially provide any databases, interfaces, mobile platforms, or software programs comprising the Services, Licensed Materials, or Downloaded Content; Share, recompile, decompile, disassemble, reverse engineer, or make or distribute any other form of, or any derivative work from the Services, Licensed Materials, or Downloaded Content; Use the Services, Licensed Materials, or Downloaded Content, directly or indirectly, in any manner that could cause the Services, Licensed Materials, or Downloaded Content so used to: (i) be a substitute for the Services by a third party, (ii) affect Fleexer’s ability to realize revenue in connection with the Services, or (iii) compete with Fleexer’s business; Store or use Licensed Materials or Downloaded Content in an archival file site, database or other searchable repository except as expressly permitted by this Agreement; Post any Submissions that are defamatory, infringing, unlawful, or otherwise comprised of information that Licensee does not have a right to transmit under any applicable law, contractual obligations, or fiduciary relationships (including but not limited to, confidential information or proprietary information learned from employment or restricted by valid, non-disclosure agreements); or Upload, post, or otherwise transmit any material that contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment.

   10. Notwithstanding anything to the contrary in Section 2.7.1., Fleexer reserves the right, in its sole discretion, to temporarily or permanently block access to the Platform or Services for violations of such usage restrictions, including the ability to download or distribute any Licensed Materials, at any time without notice and effective immediately.

   11. Licensee Compliance Responsibilities.

       Licensee shall (i) be responsible for Users’ compliance with this Agreement; (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services; (iii) notify Licensor promptly of any known or suspected unauthorized access or use, and (iv) use the Services in accordance with this Agreement, applicable laws, and government regulations, and specifically ensure that any collection, upload, process, storage, access and sharing of personal information on or via the Services is made in strict compliance with relevant privacy laws and other applicable laws. Licensee further agrees that it shall not (a) make the Services available to anyone other than authorized Users, (b) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party intellectual property or privacy rights, (c) use the Services to store or transmit “Malicious Code” which includes, without limitation, any viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs, (d) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (e) attempt to gain unauthorized access to the Services or their related systems or networks.

   12. Without Licensee’s prior written approval, Licensor shall not make any statement that could be interpreted to mean or imply that Licensee in any way endorses or is associated with Licensor. Notwithstanding the foregoing, if Licensee or authorized Users agrees to provide a case study or such written or public endorsement, Licensor is hereby granted an irrevocable, worldwide, limited license to use respective content, likeness, and/or name solely for purposes of the case study/endorsement. Under no circumstances shall either Party make any promotional announcements which disclose Confidential Information of the other Party.

   13. Third-Party Applications and Licensee Data.

       Licensee acknowledges and agrees that if Licensee installs or enables optional Third-Party Applications for use with the Services, that Licensor may provision such providers of those Third-Party Applications to access Licensee Data as required for the interoperation of such Third-Party Applications with the Services. Licensor shall not be responsible for any disclosure, modification or deletion of Licensee Data resulting from any such access by Third-Party Application providers, and any such access and use of Licensee Data shall be subject to the privacy policies of such Third-Party Application provider. Licensee acknowledges that the Service features that interoperate with optional third-party APIs or widgets depend on the continuing availability of these APIs or widgets and program for use with the Services. If these providers cease to make their API or widgets or program available on reasonable terms for the Services, Licensor may cease providing such service features without entitling Licensee to any refund, credit, or other compensation.  For avoidance of doubt, the Licensee may electively use the Services to restrict Users from installing or enabling such Third-Party Applications for use with the Services.

3. USE AND SHARING OF LICENSEE DATA

   1. Protection of Licensee Data.

      Fleexer collects and uses certain electronic data or personal information submitted by Licensee to the Services for purposes of providing, maintaining, and improving the Services for Licensee, and in accordance with the terms of the Fleexer privacy policy which is located at (●) or such other website which Fleexer may designate, which is hereby incorporated by reference.

   2. Business Data Collection and Sharing.

      Licensee accepts and acknowledges that the functioning of the Platform and all related Services relies on the submission by Licensee of Licensee Data pertaining to its enterprise and interactions with other businesses on or through the Platform, as well as related metadata which is used by Fleexer to establish a company profile, such as interaction by Licensee with features of the Hub and Platform, searches, connexions, interactions and use of other social features of the Platform. Fleexer also uses and applies machine learning algorithms to gather large quantities of data from public sources such as news, company filings, domain and trade registries, job boards, web and app store analytics, and investor portfolios, among others, which is then combined with the Licensee Data using machine learning to uncover actionable predictions, business intelligence insights and trends. Licensee expressly accepts and agrees that, when joining a Hub: All voluntarily-submitted Licensee Data by Licensee shall be made available to other Users of the Hub and may be displayed, compiled, arranged and presented in various ways; The third-party that has created and is managing the Hub will have full access and control over all such submitted Licensee Data and may use such Licensee Data within the allowed purposes of the Platform, namely to showcase Licensee’s services and identify key elements of interest for the purposes sought by the Hub, at its discretion; Unless otherwise agreed upon, Fleexer may use scraping, analytics and other AI tools to generate reports and map out trends and predictive analytics with respect to the User-submitted Licensee Data for the purposes of operating and improving the Services and the Platform; and Upon termination of the Subscription Term or phasing out or closure of all Hubs to which Licensee or its authorized Users are part of, all Licensee Data (including all data associated thereto regarding actions, operations, interactions and use of all other features of the Platform) shall remain available through the Platform, unless a specific request for deletion and removal is made to Fleexer.

   3. Licensee Data Responsibilities.

      Without limiting the generality of the foregoing, Licensee agrees that it shall be solely responsible for the origination, accuracy, completeness, ownership, publication and dissemination of all Licensee Data made available through all Hubs it participates on the Platform, and shall be responsible for obtaining and maintaining all applicable rights, licenses, permissions, releases, approvals, clearances, credit, or attribution information relating to the Licensee Data and paying any applicable royalties or fees in connection therewith. Licensee acknowledges that all postings submitted by it or its authorized Users are public communications and are therefore non-confidential. As between Licensee and Fleexer, all intellectual property rights in the Licensee Data, including but not limited to all patent, copyright, trade secret, trademark, or other intellectual property rights therein, shall remain Licensee’s exclusive property. Notwithstanding the foregoing, by submitting or otherwise making Licensee Data available for display on the Platform, Licensee hereby grants Fleexer and any third-parties managing the relevant Hubs a royalty-free, world-wide, non-exclusive license, only for internal purposes, to use, reproduce, modify, adapt, translate and display such Licensee Data in any format and in any medium as Fleexer may choose. Pursuant to Section 3.2.3, such license shall survive termination of this Agreement, unless expressly terminated by Licensee. Fleexer does not endorse and assumes no obligation to monitor or filter any Licensee Data posted, or otherwise made available on the Platform. Fleexer reserves the right, but assumes no obligation, to refuse or remove any Licensee Data. Fleexer may take any reasonable action it deems necessary or appropriate, in regards to Licensee Data that: does not comply with these Terms; is illegal; or is otherwise undesirable, inappropriate or inaccurate, including Licensee Data that is Objectionable; contains any viruses, time bombs, Trojan horses, worms or other computer programming routines that may damage or interfere with the operations of the Site; is knowingly untrue, inaccurate or misleading. “Objectionable” means any material that: (a) is defamatory, unlawful, or plagiarized; (b) a reasonable person would consider harassing, abusive, threatening, obscene, hateful, or racially/ethnically offensive; (c) constitutes a breach of any person’s privacy or publicity rights; (d) violates any statute, regulation or ordinance; (e) promotes spam; or (f) has a primary purpose of advertising for commercial gain rather than informational content. Postings regarding transactions, pricing or terms are prohibited. The above list is not exclusive and are examples only.

   4. Aggregate Data

      Licensee hereby grants to Fleexer, in perpetuity, an exclusive (even as to Licensee), royalty-free, world-wide right and license in and to the Aggregate Data for all purposes in connection with Fleexer’s business, subject to the terms and conditions of this Agreement. For clarity, Fleexer shall have the right to process, reformat, manipulate, adopt, create derivative works, copy, display, import, export, store and otherwise use, in whole or in part, the Aggregate Data, in any way Fleexer desires, subject to applicable laws and the terms and conditions set forth herein. Notwithstanding Section 3.4(a), Fleexer acknowledges that, during the Subscription Term and following termination of expiration of this Agreement for any reason, Licensee shall retain the right to: (i) process, reformat, manipulate, adopt, create derivative works, copy, display, import, export, store and otherwise use the Aggregate Data for; (A) its own internal business purposes, including the management of performance and maintenance of its assets, and; (B) its own non-commercial technical monitoring or administration purposes. For greater certainty, Fleexer agrees that it shall not be entitled to any data, and Licensee shall not be obligated to provide to Fleexer any data relating to or arising from any of its own internal activities conducted by Licensee without the use or involvement of the Platform.

4. REGISTRATION AND SECURITY

   1. Registration and User ID Security.

      Some of the Services require secure login through a unique username and password (collectively, “User ID”). If Users access the Services using secure User IDs, Licensee agrees as follows (and shall compel its Users to agree) for purposes of initial registration and general User ID security: (i) as part of the registration process which may be necessary to obtain access to the Services, Licensee shall provide certain truthful registration information to Licensor (subject to all confidentiality obligations stated herein), with each registration being for a single User only; (ii) Users shall have access to the Services during the Subscription Term through the User ID, which may be used by Users to gain access to the Services only for so long as such Users are authorized to access and use the Services in accordance with the terms of this Agreement ; and (iii) Licensee agrees to treat the User ID as confidential and, as to the Users, not to disclose or share such User ID, either directly or indirectly, to any person other than as directed by Licensee or permitted by Licensor in writing. Notwithstanding anything to the contrary stated herein, Licensor shall not be liable to Licensee or any third person or entity for any loss or damage arising from Licensee’s failure to comply with these security requirements. If Licensee intends or directs User to sell or transfer a device on which the Services are accessed, Licensee agrees to remove any Licensed Materials and delete all internet files (i.e. cookies) obtained by or through use of the Services that are stored on such device.

   2. Audit and Monitoring.

      Subject to any confidentiality obligations contained herein, Fleexer reserves the right to audit and monitor the use of the Services to ensure compliance with the terms of this Agreement and to maintain and improve the provision of the Services. Additionally, upon thirty (30) days written notice, Licensor may audit Licensee’s use of the Services for compliance purposes relating to Sections 2 and 3 of this Agreement, particularly regarding User ID compliance. Licensee agrees to cooperate with Licensor’s audit and provide reasonable assistance and access to information. Licensee agrees to pay within thirty (30) days of written notification any applicable overage fees. Failure to pay any required overage fees can result in the end of technical support or termination of Licenses and/or this Agreement. Licensee agrees that Licensor shall not be responsible for any of Licensee’s costs incurred in cooperating with the audit.

5. PROPRIETARY RIGHTS

   1. Reservation of Rights.

      The Services are proprietary and are protected by copyright, patent, trademark and other laws respecting proprietary rights and intellectual property. Fleexer retains all rights in the Services, including all copyright and other proprietary rights worldwide. Except as expressly provided herein, use of the Services shall in no way be construed as conferring on Licensee, User, or any third party, any license or right, by implication, estoppel or otherwise, under any law, rule or regulation including, without limitation those related to copyright or other intellectual property rights. Licensee acknowledges and agrees that Licensee and Users have no ownership rights in or to the Services, or the Licensed Materials contained therein, and that no such rights are granted hereunder. The granting of any license herein does not affect the ownership of any Licensed Materials, whether tangible or intangible, and, unless expressly stated otherwise in an agreement signed by both Parties, none of the Licensed Materials accessed through the Services shall be considered assigned to Licensee under any rule or doctrine under applicable law.

   2. Intellectual Property.

      Licensee acknowledges and agrees that the Services and Licensed Materials are and have been authored, developed, conceived, compiled, prepared, revised, selected, and arranged by Licensor and any applicable partners or affiliates through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and resources and constitutes valuable intellectual property of Fleexer. Licensee shall comply with all reasonable requests made by Fleexer to protect their contractual, statutory, and common law rights in the Services and Licensed Materials. All present and future rights in and title to the Services and Licensed Materials (including the right to exploit the Services and any portions of the Services over any present or future technology) are reserved to Licensor for its exclusive use.

   3. Feedback.

      If Licensee provides Fleexer with any ideas, comments or suggestions relating to the Services or Licensed Materials ( “Feedback”), Fleexer retains all rights in that Feedback, and anything created as a result (including new Licensed Materials or any derivative works) are owned solely by Fleexer. For avoidance of doubt, none of Licensee’s intellectual property or Confidential Information shall be considered Feedback.

6. CONFIDENTIALITY

   1. Confidential Information.

      Neither Party will disclose the other Party’s Confidential Information, except to its employees, agents, or professional advisors who need to know it and who have agreed in writing to keep it confidential. The recipient will ensure that those people and entities use the Confidential Information only to exercise the rights and fulfill the obligations set forth in this Agreement and in accordance with the confidentiality obligations applicable to the recipient’s performance under this Agreement. The recipient may also disclose Confidential Information to the extent required by a valid order of a court or other governmental body that has jurisdiction over the recipient; provided that the recipient uses commercially reasonable efforts to: (i) promptly notify the disclosing Party of such legal request before making any disclosure; and (ii) comply with the disclosing Party’s reasonable requests to oppose or limit the disclosure (at no cost to the recipient). If no such protective order or other remedy is sought or obtained pursuant to this Section 6, the recipient may disclose only that portion of Confidential Information that it is legally required to disclose and will use reasonable efforts to ensure that the Confidential Information disclosed will be accorded confidential treatment.

   2. Obligations. 

      Licensee agrees to safeguard the Services, Licensed Materials (including Downloaded Content) and User IDs against unauthorized use or disclosure with means at least as stringent as those it uses to safeguard Licensee’s own Confidential Information, and in no event with less than reasonable means. Fleexer shall use commercially reasonable efforts to keep confidential the information Licensee enters into the Services, provided that this obligation shall not apply to any information that: (i) Licensee provides in connection with another service, function or product of Fleexer or its affiliates, or other agreement between Licensee and Fleexer or its affiliates; (ii) previously resided, on a non-confidential basis, in the Services directly relating to information entered by Licensee in the Services; (iii) becomes generally known or available to the public or is disclosed without restriction in published materials or is disclosed, not due to a breach of any confidentiality obligations upon Fleexer or its affiliated entities; (iv) is known to Fleexer or its affiliated entities at the time of disclosure by Licensee; (v) Fleexer or its affiliated entities obtains from a third party or a source other than Licensee which is not known to Fleexer or its affiliated entities to be subject to confidentiality; (vi) Licensee instructs Fleexer or its affiliated entities to disclose; or (vii) Fleexer or its affiliated entities are legally required to disclose.

   3. Disposal.

      Notwithstanding anything to the contrary herein, upon the termination or expiration of this Agreement, or upon the request of Fleexer, Licensee will immediately and securely destroy or return all such Confidential Information of Fleexer in Licensee’s possession.

   4. Injunction for Breach of Confidentiality.

      Licensee acknowledges and agrees that in the event of any breach of the confidentiality obligations of this Agreement by Licensee, Fleexer could suffer irreparable harm and injury and no remedy at law may afford it adequate protection against, or appropriate compensation for, such injury. Accordingly, Licensee agrees that in any such event, Fleexer will be entitled, in addition to all other potential rights and remedies available to it, to immediate injunctive relief as may be granted by a court of competent jurisdiction.

7. WARRANTIES AND DISCLAIMERS

   1. Warranties. 

      Each Party represents and warrants that it has the legal power to enter into this Agreement. Licensee represents and warrants that Licensee will not transmit to Licensor any Malicious Code.

   2. Disclaimer.

      EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES AND LICENSED MATERIAL ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. NONE OF FLEEXER, FLEEXER’S AFFILIATES, AND FLEEXER’S OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (COLLECTIVELY THE “FLEEXER PARTIES”) GUARANTEES THE ACCURACY, COMPLETENESS, TIMELINESS, RELIABILITY, SUITABILITY, OR USEFULNESS OF ANY PORTION OF THE SERVICES OR LICENSED MATERIALS. NONE OF THE FLEEXER PARTIES WARRANT THAT THE SERVICES OR LICENSED MATERIALS WILL BE UNINTERRUPTED OR ERROR FREE OR THAT THE SERVICES, OR ANY FILES AVAILABLE FOR DOWNLOADING THROUGH THE SERVICES ARE FREE OF COMPUTER VIRUSES OR OTHER HARMFUL ELEMENTS. LICENSEE EXPRESSLY AGREES THAT THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE SERVICES AND THE ACCURACY, TIMELINESS OR COMPLETENESS OF THE LICENSED MATERIALS IS ASSUMED SOLELY BY LICENSEE. NONE OF THE FLEEXER PARTIES MAKE ANY, AND HEREBY SPECIFICALLY DISCLAIM ALL REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, AND WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES OR LICENSED MATERIALS INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. LICENSEE’S SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH THE SERVICES OR LICENSED MATERIALS IS TO STOP USING THE SERVICES. FLEEXER PARTIES DO NOT AGREE TO ANY OBLIGATIONS OF CONFIDENTIALITY, NON DISCLOSURE OR NON-USE, EXCEPT AS EXPLICITLY PROVIDED HEREIN AND/OR IN THE FLEEXER PRIVACY POLICY.

   3. No Professional Advice. 

      NONE OF THE SERVICES OR PROVISION OF LICENSED MATERIALS CONSTITUTES ACTUAL INVESTMENT ADVICE OR OTHER PROFESSIONAL ADVICE, OPINION, OR RECOMMENDATION BY LICENSOR. LICENSOR DOES NOT CLAIM TO BE AND IS NOT A BROKER, DEALER OR INVESTMENT ADVISOR AND NOTHING HEREIN SHALL CONSTITUTE A SALE OR OFFER TO BUY, SELL, OR RECOMMEND ANY SECURITIES OR COMPANIES. LICENSEE MAKES THEIR OWN INVESTMENT DECISIONS BASED UPON THEIR PERSONAL DUE DILIGENCE, INVESTIGATION AND OTHER PERSONAL INVESTMENT CRITERIA. LICENSEE ASSUMES ALL RESPONSIBILITIES AND OBLIGATIONS WITH RESPECT TO ANY DECISIONS, ADVICE, CONCLUSIONS, INVESTMENT STRATEGIES, OR RECOMMENDATIONS MADE OR GIVEN AS A RESULT OF THE USE OF THE SERVICES OR LICENSED MATERIALS, INCLUDING WITHOUT LIMITATION ANY DECISION MADE OR ACTION TAKEN BY LICENSEE IN RELIANCE UPON THE SERVICES OR LICENSED MATERIALS. AS A CONDITION TO LICENSEE’S USE OF THE SERVICES AND LICENSED MATERIALS, LICENSEE HEREBY WAIVES AND RELEASES ANY AND ALL CLAIMS, CAUSES OF ACTION OR OTHER RIGHTS THAT LICENSEE MIGHT HAVE AGAINST LICENSOR ARISING OUT OF OR RELATING TO THE REVIEW OF ANY LICENSED MATERIALS MADE AVAILABLE THROUGH THE SERVICES.

   4. Third-Party Communications.

      Licensor disclaims all liability for any third-party communication Licensee may receive or any actions Licensee may take or refrain from taking as a result of any communication directed to Licensee from any third party directly or indirectly in connection with the Services provided herein ( “Third-Party Communication”). Licensee is solely responsible for assessing and verifying the identity and trustworthiness of the source and content of any Third-Party Communication. Licensor assumes no responsibility for verifying, and makes no representations or warranties regarding, the identity or trustworthiness of the source or content of any Third-Party Communication.

8. INDEMNIFICATION

   1. Indemnification.

      Licensee agrees to indemnify, defend, and hold the Fleexer Parties harmless, including costs and reasonable attorneys’ fees, from any claim or demand made by any third-party due to or arising out of (i) Licensee’s access to or use of the Services or Licensed Materials, (ii) Licensee’s violation of the terms of this Agreement, or (iii) the infringement by Licensee, including any unauthorized use of Licensee’s account, of any intellectual property or other right of any person or entity. The indemnifying party reserves the right, at the indemnifying party’s expense, to assume the exclusive defense and control of any matter for which the indemnifying party is required to indemnify the indemnified party and the indemnifying party agrees to cooperate with the indemnifying party’s defense of these claims. The indemnifying party agrees not to settle any matter without the prior written consent of the indemnified party. Fleexer shall promptly notify Licensee of any claim for which indemnification is sought, following actual knowledge of such claim, provided however that the failure to give such notice shall not relieve Licensee of its obligations hereunder except to the extent that Licensee is materially prejudiced by such failure. In the event that any third-party claim is brought, Licensee shall have the right and option to undertake and control of the defense of such action with counsel of its choice, provided however that Fleexer may undertake and control of such defense in the event of the material failure of Licensee to undertake and control the same. Fleexer shall not consent to judgment or concede or settle or compromise any claim without the prior written approval of Licensee (which approval shall not be unreasonably withheld).

9. LIMITATION OF LIABILITY

   1. Limitation of Liability.

      EXCEPT FOR LICENSOR’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN NO EVENT SHALL LICENSOR’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING THE USE OR INABILITY TO USE THE SERVICES, OR LICENSEE’S FAILURE TO PERFORM RESEARCH OR OTHER RELATED WORK PROPERLY OR COMPLETELY (EVEN IF ASSISTED BY LICENSOR),  WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE TOTAL AMOUNT PAID BY LICENSEE HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT.

   2. Exclusion of Indirect and Related Damages

      .

      TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR ITS GROSS FAULT, WILLFUL MISCONDUCT OR BREACH OF AN ESSENTIAL OBLIGATION OF THE AGREEMENT, NEITHER FLEEXER NOR ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR SERVICE PROVIDERS, SHALL BE LIABLE UNDER THIS AGREEMENT AND UNDER ANY LEGAL THEORY FOR ANY INDIRECT DAMAGES, INCLUDING LOST REVENUES, PROFITS OR LOSS OF CLIENTS OR EXPECTED CLIENTS, DAMAGES FOR BUSINESS INTERRUPTION OR FAILURE TO REALIZE EXPECTED SAVINGS, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA AND ANY OTHER INCIDENTAL COMMERCIAL OR FINANCIAL LOSSES OF ANY KIND OR DAMAGES THAT ARE NOT THE DIRECT AND IMMEDIATE CONSEQUENCE OF ITS ACTIONS, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, BREACH OF PRIVACY OR OTHERWISE, EVEN IF THE PARTY WAS ALLEGEDLY ADVISED OR HAD REASON TO KNOW, BUT EXCLUDING CLAIMS BASED ON FRAUD.

10. TERM AND TERMINATION

    1. Term of Agreement. 

       Unless terminated earlier as permitted herein, this Agreement commences on the Effective Date and continues until terminated in accordance with the terms herein.

    2. Termination for Cause.

       A Party may terminate this Agreement for cause: (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Additionally, Licensor may terminate this Agreement at any time upon notice to Licensee if Licensee invests in or builds a service that is competitive to any of Licensor’s services. For avoidance of doubt, Licensee may not terminate this Agreement or any ordering documents for convenience or no cause.

    3. Effects of Termination.

       Upon termination of this Agreement for any reason, Licensee shall (and shall ensure that all Users) immediately cease accessing and using the Services and Licensed Materials, and Licensee must delete and destroy all copies of Licensed Materials stored on Licensee systems or that is otherwise in Licensee’s possession or under Licensee’s control. Licensee may, however, retain Licensed Materials in aggregate form that is included in Reports that were created in accordance with the terms of this Agreement prior to the effective date of termination.

    4. Surviving Provisions.

       Section 5 (Proprietary Rights), 6 (Confidentiality), 7 (Warranties and Disclaimer), 8 (Indemnification), 9 (Limitation of Liability), 10.3 (Effects of Termination), 11 (Notices, Governing Law and Jurisdiction), 12 (General Provisions), and this Section 10.4 shall survive any termination or expiration of this Agreement.

11. NOTICES, GOVERNING LAW AND JURISDICTION

    1. Notices.

       Licensee acknowledges it is contracting with the following entity under this Agreement, and should direct notices to under this Agreement to: privacy@swarmplus.io

    2. Manner of Giving Notice.

       Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, (iv) the first business day after sending by email, or (v) by posting on the communication forms made available by the Platform, if applicable. Notices to Licensee shall be addressed to the system administrator designated by Licensee for all relevant Services accounts, and in the case of billing-related notices, to the relevant billing contact designated by Licensee.

    3. Governing Law.

       This Agreement shall be governed by and construed in accordance with the laws of the Province of Quebec, without giving effect to its principles or rules of conflict of laws to the extent such principles or rules are not mandatorily applicable by statute and would require or permit the application of the laws of another jurisdiction, as to all matters, including but not limited to matters of validity, construction, effect, performance and remedies. Each Party consents to the exclusive jurisdiction and venue of the Courts of the Province of Quebec, in the judicial district of Montreal.

12. GENERAL PROVISIONS

    1. Relationship of the Parties

       .

       The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.

    2. No Third-Party Beneficiaries.

       Except for any of Licensor’s third-party suppliers and licensors, as applicable, there are no third-party beneficiaries to this Agreement.

    3. Waiver and Cumulative Remedies.

       No failure or delay by either Party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.

    4. Severability

       .

       If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.

    5. Assignment.

       Licensee may not assign any rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Licensor.

    6. Entire Agreement.

       This Agreement constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the Party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement, the terms of this Agreement shall prevail unless expressly stated otherwise in a signed agreement between the Parties. Notwithstanding any language to the contrary therein, no terms or conditions stated in Licensee’s purchase order or other order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.