1.1           Subject to the terms herein (“Terms and Conditions”), Thirty Capital, LLC (“Thirty Capital”) grants Client a non-exclusive, non-transferable, non-sublicensable, revocable right to use the Products and Services described in the Client Order Form (“Offerings”) during the Term for Client’s internal business purposes only.  The Thirty Capital Agreement, Client Order Form, Statement(s) of Work, and these Terms and Conditions shall be referred to herein collectively as the “Agreement”.

1.2           If applicable, Thirty Capital will provide Client with reasonable technical support services during normal business hours (Monday-Friday from 9am-5pm ET) by emailing support@thirtycapital.com or reaching out to the Primary Contact designated in Client’s Order Form.

2.1           Client Data.  Client shall own all right, title and interest in and to all data provided by Client (“Client Data”).  Client grants Thirty Capital a worldwide, royalty-free, non-exclusive, perpetual license to access and use Client Data to provide the Offerings (including any additional services requested during the Term in connection with any Offering) to Client and to monitor and improve the Offerings during the Term.  Without limiting the foregoing, in addition to any other rights to use Client Data in this Agreement, Thirty Capital may use Client Data (1) for its internal business purposes, including to improve, administer and deliver the Offerings, and (b) to create aggregate and anonymous data, which Thirty Capital shall own and is permitted to use for any purpose.

2.2           Data Requirements.  Client is responsible for ensuring that Client Data does not violate any applicable law (including any consents required under applicable data privacy laws) or infringe the rights of any third parties.  While Thirty Capital will not verify the Client Data or Thirty Capital’s right to use the Client Data pursuant to this Agreement it retains the right to return to Client or delete or destroy any Client Data that violates this Agreement or is otherwise objectionable or inappropriate, as determined by Thirty Capital in its sole discretion.  Client agrees and acknowledges that it will not provide any medical or healthcare data to Thirty Capital.

2.3           Restrictions and Responsibilities. 

2.3.A      Client will not, directly or indirectly:

1.              reverse engineer, crawl, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Offerings or any software, documentation or data related to the Offerings (“Software”);

2.              remove, erase, obscure or tamper with any copyright or any other product identification or proprietary rights notices, seal or instructional label printed or stamped on, affixed to, or encoded or recorded in or on any Software; or fail to preserve all copyright and other proprietary notices in all copies Company makes of the Software;

3.               modify, translate, or create derivative works based on the Offerings or any Software (except to the extent expressly permitted by Thirty Capital or authorized herein);

4.              use the Offerings or any Software for timesharing or service bureau purposes;

5.              sell, market, license, sublicense, distribute or otherwise grant to any person or entity any right to use the Software except to the extent expressly permitted in this Agreement; or use the Software to provide, alone or in combination with any other product or service, any product or service to any person or entity, whether on a fee basis or otherwise; or

6.              seek to obtain intellectual property protection on the Offerings or Software, or any part thereof; or remove any proprietary notices or labels.

2.3.B      Client is responsible for all activity related to Client’s Offerings, including but not limited to, actions of Client’s employees, owners, officers, directors, contractors, subsidiaries, vendors, and third-party agents. 

2.3.C      Further, Client may not remove or export from the United States or allow the export or re-export of the Offerings, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.

2.3.D     Client represents, covenants, and warrants that Client will only use the Offerings in compliance with this Agreement and all applicable laws and regulations.  Client hereby agrees to indemnify and hold harmless Thirty Capital and its owners, officers, directors, affiliates, subsidiaries, representatives, contractors and employees against any damages, losses, liabilities, settlements and expenses (including without limitation costs and reasonable attorneys’ fees) in connection with any claim or action that arises from Client’s violation of the foregoing. Although Thirty Capital has no obligation to monitor Client’s use of the Offerings, Thirty Capital may do so and may prohibit any use of any Offering it believes may be in violation of the foregoing.

2.3.E      Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Offerings, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers internet service providers, and the like (collectively, “Equipment”).  Client shall also be responsible for maintaining the security of the Equipment, Client account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Client’s account or the Equipment.  For the avoidance of doubt, Thirty Capital shall not have any liability or responsibility to the extent Client is unable to access or use any Offering as a result of any failure, degradation, non-performance or other issue relating to Client’s Equipment.

2.4            Client Data From Third Parties or Third Party Sites.     Upon your written request to retrieve information for any Offering from third parties or third-party sites, you expressly authorize and direct us, on your behalf, to electronically retrieve certain Client Data maintained by third party sites with which you have a legally binding customer relationship. Subject to our privacy procedures as set forth in the Privacy Policy, we may work with one or more third party providers to access and retrieve your Client Data. We do not review the Client Data for accuracy, legality or non-infringement. We are not responsible for and cannot guarantee the accuracy or timeliness of the Client Data that we retrieve on your behalf directly from third parties at your request.  We cannot always foresee or anticipate technical or other difficulties which may result in failure to obtain data or loss of data, personalized settings or other service interruptions. We assume no responsibility for the timeliness, accuracy, deletion, non-delivery or failure to store any user data, communications or personalized settings.

FOR PURPOSES OF THESE TERMS AND CONDITIONS AND SOLELY TO OBTAIN CLIENT DATA FOR YOU AT YOUR REQUEST FROM A THIRD PARTY OR THIRD PARTY SITE, YOU GRANT US A LIMITED POWER OF ATTORNEY, AND APPOINT US AS YOUR ATTORNEY-IN-FACT AND AGENT, WITH FULL POWER OF SUBSTITUTION AND RE-SUBSTITUTION, FOR YOU AND IN YOUR NAME, PLACE AND STEAD, IN ANY AND ALL CAPACITIES, TO ACCESS THIRD PARTY SITES, SERVERS OR DOCUMENTS, RETRIEVE INFORMATION AND USE YOUR INFORMATION WITH THE FULL POWER AND AUTHORITY TO DO AND PERFORM EACH AND EVERY ACT AND THING REQUISITE AND NECESSARY TO BE DONE IN CONNECTION WITH SUCH ACTIVITIES, AS FULLY TO ALL INTENTS AND PURPOSES AS YOU COULD DO IN PERSON.  YOU ACKNOWLEDGE AND AGREE THAT WHEN WE ARE ACCESSING AND RETRIEVING YOUR CLIENT DATA FROM THIRD PARTY SITES AT YOUR DIRECTION, WE ARE ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF ANY THIRD PARTY. YOU AGREE THAT THIRD PARTY ACCOUNT PROVIDERS SHALL BE ENTITLED TO RELY ON THE FOREGOING AUTHORIZATION, AGENCY AND POWER OF ATTORNEY GRANTED BY YOU.

3.1           Client will pay Thirty Capital the fees described in the Order Form or any Statement of Work and any other fees required under the terms of the Order Form or Statement of Work (“Fees”).  Fees are due and payable as described in the Order Form and any Fees outstanding more than ten (10) days after written request for payment are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including but not limited to attorney’s fees.  All Fees are non-refundable; provided, however, that if Client terminates the Agreement due to a material breach by Thirty Capital as described in Section 6 herein, Thirty Capital will refund Client any portion of the Fee it received that is allocable to the remainder of the month or year, as applicable based on billing cadence, following the termination date.   Fees are exclusive of applicable taxes. Client shall be responsible for all taxes associated with any Offering, including but not limited to sales and use, excise, state and local privilege tax and VAT, but excluding U.S. taxes based on Thirty Capital’s net income. Thirty Capital reserves the right to change the Fees or applicable charges and to institute new Fees or charges, at the end of the Initial Term or then-current renewal term, upon thirty (30) days prior written notice to Client (which may be sent by email).

3.2           Fees may be paid by ACH or with a credit card.  Client understands there will be no fee for payment by ACH.  If Client chooses to pay with credit card, Client will incur a 3% service charge for each transaction.

3.3           During the Term, Client may engage Thirty Capital to provide additional products or services as may be agreed upon by the parties in writing, which may be billed separately and subject to any additional terms and conditions as agreed upon by Client and Thirty Capital.

4.1           Thirty Capital shall own and retain all right, title and interest in and to (a) the Offerings and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions, templates, methodologies, or other technology developed in connection with Client support services, and (c) all intellectual property rights relating to any of the foregoing.  To the extent Client now or hereinafter acquires any right, title or interest in the foregoing, Client hereby assigns all such right, title and interest to Thirty Capital.  Except for the license rights expressly granted to Client herein, no other rights in or to the Offerings, Software, or any other intellectual property of Thirty Capital are granted to Client herein.

4.2           Notwithstanding anything to the contrary, Thirty Capital shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Offerings and related systems and technologies (including, without limitation, information concerning Client Data and data derived therefrom), and  Thirty Capital will be free to (i) use such information and data to improve and enhance the Offerings and for other internal development, diagnostic and corrective purposes in connection with the Offerings. 

Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party).  Confidential Information of Thirty Capital includes, but is not limited to, non-public information regarding features, functionality and performance of the Offerings and Software.  Confidential Information of Client includes non-public data provided by Client to Thirty Capital to enable Client’s use of the Offerings. The Receiving Party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in providing the Offerings or as otherwise permitted in this Agreement) or divulge to any third person any such Confidential Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public (through no actions of Receiving Party), or (b) was rightfully in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Confidential Information of the Disclosing Party as evidenced by contemporaneous written records. Notwithstanding the restrictions in Section 5, if the Receiving Party is required to disclose any of the Disclosing Party’s Confidential Information by law, such as in response to a subpoena or requirement of any regulator, court, arbitral, administrative, or legislative body, the Receiving Party must:  where reasonably possible and permitted, immediately provide written notice to the Disclosing Party of the required disclosure to give the Disclosing Party an opportunity to move for a protective order or otherwise prevent the disclosure; disclose only the minimum amount of Confidential Information required to satisfy the legal obligation; and assert and take proper steps with the body requiring disclosure to maintain the confidentiality of the Confidential Information to be disclosed.

The Term and renewals are as set forth in the Client Order Form.  Further, either party may terminate this Agreement, if the other party materially breaches this Agreement and fails to cure such breach within thirty (30) days following written notice of the breach (or without notice in the case of nonpayment).  Upon termination (i) Client shall pay all outstanding Fees through the end of the current Term (or if Client terminates due to a material breach by Thirty Capital, through the date of termination), (ii) Thirty Capital will return all Client Data to Client, at Client’s expense, or erase or otherwise destroy all Client Data if so directed by Client (with the exception of (1) automatically generated computer back-up or archival copies generated in the ordinary course of Thirty Capital business, provided that such information shall remain subject to the confidentiality provisions herein until such information is automatically destroyed and (2) Client Data that has been aggregated, anonymized, or usage data collected by Thirty Capital as permitted by this Agreement), and (iii) Client’s right to use the Offerings will terminate.  All sections of this Agreement which by their nature should survive termination, will survive termination, including, without limitation, accrued rights to payment, ownership, proprietary rights, confidentiality, indemnity, warranty disclaimers and limitation of liability.

7.1           Client.  Client represents and warrants that (i) it holds all rights and authority to engage in, and to authorize Thirty Capital to engage in, the activities contemplated hereunder; (ii) the execution, delivery and performance of this Agreement, will not violate any existing law, rule, regulation, corporate document, order, determination or award of any governmental authority or arbitrator, applicable to Client and this Agreement and is a legal, valid and binding obligation of Client, enforceable in accordance with its terms; and (iii)  Client is authorized to furnish the Client Data for use in the Offerings and that the Client Data (and the provision of the Client Data) does not violate any law or infringe the rights of any third party.

7.2                                       Thirty Capital.   Thirty Capital warrants that the Offerings will be in substantial conformity with the description in the Order Form.  In the event of a breach of this warranty, Thirty Capital will use commercially reasonable efforts to correct the reported non-conformity, at no charge to Client, or if Thirty Capital determines such remedy to be impracticable, either party may terminate the Agreement pursuant to Section 6 hereunder.  The foregoing shall be Client’s sole and exclusive remedy for any breach of the warranty set forth in this Section 7.2.   This warranty shall not apply: (i) unless Client makes a claim within 30 days of the date on which Client first noticed the non-conformity, or (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services.  

7.3       Limitations and Exclusions.  THIRTY CAPITAL DOES NOT WARRANT THAT THE OFFERINGS WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE OFFERINGS.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE OFFERINGS ARE PROVIDED “AS IS” AND THIRTY CAPITAL DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

8.1           Client Indemnification.  Client will defend, indemnify and hold harmless Thirty Capital and its owners, officers, directors, affiliates, subsidiaries, representatives, contractors and employees from and against any and all claims or other actions arising from Client’s breach of this Agreement or any third party claims with respect to Thirty Capital and its owners, officers, directors, affiliates, subsidiaries, representatives, contractors and employees’ use of Client Data (provided such use is in accordance with this Agreement). Thirty Capital will give Client prompt notice of any such claim and Client shall have the option to assume the defense of the claim.  Thirty Capital will not be responsible for any settlement it does not approve in writing.

8.2           Thirty Capital Indemnification.   Thirty Capital will defend, indemnify and hold harmless Client from and against any and all claims or other actions by any third party alleging that the Offerings, when used as authorized under this Agreement, infringes a United States patent, copyright or trademark.  Client will give Thirty Capital prompt notice of any such claim and Thirty Capital shall have the option to assume the defense of such claim.  Client will not be responsible for any settlement it does not approve in writing.

NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THIRTY CAPITAL AND  ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OWNERS, OFFICERS, DIRECTORS, AFFILIATES, SUBSIDIARIES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND THIRTY CAPITAL’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CLIENT TO THIRTY CAPITAL FOR THE OFFERINGS UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT THIRTY CAPITAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

The parties will use commercial best efforts to resolve any disputes by working together in good faith.  Any dispute, claim, or breach of this Agreement that cannot be resolved with good faith negotiations shall be finally settled by binding arbitration conducted in the English language, in Charlotte, North Carolina, USA, under the commercial arbitration roles of the American Arbitration Association (“AAA”).  The prevailing party shall be entitled to an award of reasonable attorney fees incurred in connection with the arbitration in the amount as may be determined by the arbitrator.  The award of the arbitrator shall be the sole and exclusive remedy of the parties and shall be enforceable in any court of competent jurisdiction.  Notwithstanding anything contained in this section, each party shall have the right to institute judicial proceedings against the other party or any party acting by, through, or under such other party, in order to enforce the instituting party’s rights hereunder through specific performance, injunction, or similar equitable relief.

This Agreement is not assignable by Client, except with prior written consent from Thirty Capital.   If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  Capitalized terms used herein but not defined shall have the meaning assigned to such terms in the Client Order Form. Each party will be excused for any failure or delay in its performance resulting from causes beyond its control, including, but not limited to, electric or other power failure, acts of God or of the public enemy, war, riot, civil disorder, embargo, fire, flood or strikes (however, this shall not apply to payment obligations hereunder).  This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement. All waivers and modifications of this Agreement must be in a writing signed by both parties, except as otherwise provided herein.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and Client does not have any authority of any kind to bind Thirty Capital in any respect whatsoever. All notices under this Agreement will be in writing to the Primary Contact listed on the Order Form and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  Unless informed to the contrary by Client in writing, Thirty Capital may use Client’s logo, name, and use case in Thirty Capital’s public facing marketing materials. This Agreement shall be governed by the laws of the State of North Carolina without regard to its conflict of laws provision.  This Agreement may be executed in any number of counterparts, all of which taken together shall be deemed an original and shall constitute one and the same document, and a signature delivered electronically or by facsimile or e-mail shall have the same force and effect as an original.