VNOMIC, INC. 
Terms of Service

BY INSTALLING OR USING THE SOFTWARE (THE “SOFTWARE”) THAT ACCOMPANIES THESE TERMS OF SERVICE (“TERMS”) OR BY ACCESSING OR USING ANY OF THE FEATURES OR FUNCTIONALITY OF THE SOFTWARE (THE “SERVICE”) PROVIDED BY VNOMIC, INC. (“VNOMIC”) AND MADE AVAILABLE SOLELY FOR USE IN CONJUNCTION WITH THE SOFTWARE, YOU (“YOU” OR “YOUR”) AGREE TO THESE TERMS.  YOU MAY NOT USE THE SOFTWARE OR THE SERVICE, OR ACCEPT THESE TERMS, IF YOU ARE NOT OF LEGAL AGE TO FORM A BINDING CONTRACT WITH VNOMIC.  IF YOU ARE ENTERING INTO THESE TERMS ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH COMPANY OR ENTITY TO THESE TERMS, IN WHICH CASE “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY.
The Service may also be subject to guidelines, rules, or additional terms of service (collectively, the “Additional Terms”), which are available at the marketplace where you licensed the Service (the “Marketplace”) and are hereby incorporated by reference.
1.	DEFINITIONS.  Capitalized terms shall have the meanings set forth in this Section or in the Section where they are first used.
1.1	“Affiliate” means, with respect to a party, any person or entity that controls, is controlled by, or is under common control with such party, where “control” means ownership of fifty percent (50%) or more of the outstanding voting securities.
1.2	 “Documentation” means all specifications, user manuals, and other technical materials relating to the Service made available by Vnomic.
1.3	“Intellectual Property Rights” means any and all now known or hereafter existing (a) rights associated with works of authorship, including copyrights, and moral rights; (b) trademark or service mark rights; (c) trade secret rights; (d) patents, patent rights, and industrial property rights; (e) layout design rights, design rights, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
1.4	“Third Party Service Provider” means any third party, including but not limited to the Marketplace, that provides any web, online, cloud, or other service used by Vnomic to host and/or provide the Service.
1.5	“Users” means you and your employees, contractors, or third parties (if any) whom you authorize to use the Service in accordance with these Terms. 
2.	LICENSE GRANT AND RESTRICTIONS
2.1	License Grant.  Subject to these Terms, Vnomic grants you a non-exclusive, non-transferable (except as permitted in Section 11.6) license during the Term to: (a) reproduce, display, and perform the Software solely for use in conjunction with the Service and solely for your internal business purposes; and (b) access and use the Service solely for your internal business purposes. 
2.2	Limitations.  You agree that you will not: (a) permit any party to access and/or use the Service, other than the Users authorized under these Terms; (b) rent, lease, loan, or sell access to the Service to any third party; (c) interfere with, disrupt, alter, translate, or modify the Service or any part thereof, or create an undue burden on the Service or the networks or services connected to the Service; (d) reverse engineer or access the Software or Service in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Software or Service, or (iii) copy any ideas, features, functions or graphics of the Software or Service; (e) without Vnomic’s express written permission, introduce software or automated agents or scripts to the Service so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Service; (f) publish any performance or benchmark tests or analyses relating to the Software or Service or the use thereof; (g) modify, adapt, alter, translate, or create derivative works from the Software; (h) merge the Software with other software; (i) sublicense, lease, rent, loan, distribute or otherwise transfer the Software to any third party; or (j) use or reproduce the Software except as expressly permitted in Section 2.1.  
2.3	IP Ownership.  The Software, the Service, and any and all of Vnomic’s proprietary technology, including software, hardware, products, processes, algorithms, user interfaces, know-how, technologies, designs and other tangible or intangible technical material or information made available to you by Vnomic in providing the Service, (collectively, the “Vnomic Technology”), and all Intellectual Property Rights in the foregoing, is the exclusive property of Vnomic or its suppliers. You acknowledge and agree that any comments, ideas and/or reports you provide to Vnomic (“Feedback”) shall be the property of Vnomic and you hereby irrevocably transfer and assign to Vnomic all Intellectual Property Rights embodied in or arising in connection with such Feedback.  You agree to provide Vnomic any assistance it may require to document, perfect, and maintain its rights in the Feedback. Except as expressly set forth in this Section 2, no express or implied license or right of any kind is granted to you regarding the Vnomic Technology, or any part thereof, including any right to obtain possession of any source code, data or other technical material relating to the Vnomic Technology.  All rights not expressly granted to you are reserved to Vnomic.
2.4	Open Source Software.  Certain items of software included with the Software may be subject to “open source” or “free software” licenses (“Open Source Software”).  Some of the Open Source Software is owned by third parties.  The Open Source Software is not subject to these Terms, except Sections 7.2 and 8.  Instead, each item of Open Source Software is licensed under the terms of the end-user license that accompanies such Open Source Software.  Nothing in these Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for the Open Source Software. If required by any license for particular Open Source Software, Vnomic makes such Open Source Software, and Vnomic’s modifications to that Open Source Software, available by written request at the notice address specified herein.
3.	ACCOUNTS.  Vnomic may make certain features of the Service available only if you have paid a fee and/or registered to create a separate Vnomic master account outside of the Marketplace (“Master Account”).  The holder of the Master Account may have the ability to create user accounts (“User Accounts”) with varying levels of privileges and associated usernames and passwords. Vnomic reserves the right to change or update these usernames and passwords in Vnomic’s sole discretion from time to time. You are responsible for maintaining the confidentiality of all usernames and passwords, and are solely responsible for all activities that occur under these usernames.  You agree (a) not to allow any third party other than an authorized User to use the Master Account or any User Account or any related usernames or passwords at any time; and (b) to notify Vnomic promptly of any actual or suspected unauthorized use of the Master Account or any User Account or any related usernames or passwords, or any other breach or suspected breach of these Terms.  Vnomic reserves the right to terminate any Master Account or User Account, which Vnomic reasonably determines may have been used by an unauthorized third party. 
4.	PAYMENT

4.1	Orders and Prices.  You may order paid features of the Service by following the directions on the Marketplace. You shall pay all fees for such features in accordance with the pricing specified on the Marketplace.  Vnomic reserves the right to modify its fees and to introduce new fees at any time, so long as they are in accordance with the Marketplace. 
4.2	Billing and Renewal.  All billings and renewals for the Service shall be processed through the Marketplace. 
5.	VNOMIC USE OF INFORMATION.  Vnomic collects information and data on how the Software and Service is used by customers (“Use Data”). Vnomic reserves the right to use the Use Data for its internal business purposes and disclose to and share with third parties the Use Data in an anonymous and aggregated form, at its discretion. 
6.	CONFIDENTIALITY
6.1	Confidential Information.  Each party (the “Disclosing Party”) may from time to time during the Term disclose to the other party (the “Receiving Party”) certain information regarding the Disclosing Party’s business, including technical, marketing, financial, employee, planning, and other confidential or proprietary information that is marked at the time of disclosure as confidential (“Confidential Information”). Notwithstanding the foregoing, the Vnomic Technology will be deemed the Confidential Information of Vnomic. 
6.2	Restrictions.  The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by these Terms, and will disclose the Confidential Information of the Disclosing Party only to the employees, contractors, or service providers of the Receiving Party who have a need to know such Confidential Information for purposes of these Terms and who are bound by written confidentiality obligations.  The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
6.3	Exceptions.  The Receiving Party’s obligations under Section 6.2 with respect to any Confidential Information of the Disclosing Party will terminate if and when the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public; or (d) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information.  In addition, the Receiving Party will be allowed to disclose Confidential Information of the Disclosing Party to the extent that such disclosure is (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under these Terms in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure promptly and in writing and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
6.4	Return of Confidential Information.  The Receiving Party will either, at its option, return to the Disclosing Party or destroy all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon the written request of the Disclosing Party or the termination of these Terms, whichever comes first.  
7.	LIMITED WARRANTY AND DISCLAIMER
7.1	Limited Warranty.  Vnomic warrants that the Software and Service will materially conform during the Term to Vnomic’s then current Documentation for the Software or Service, as applicable, under normal use and circumstances.  If you notify Vnomic of a breach of this warranty within ten (10) days after the breach first arose, Vnomic will, at its option, use commercially reasonable efforts to correct the nonconformance, or, if Vnomic determines that it is not feasible to make such correction even after using such efforts, terminate these Terms and refund the unused portion of any applicable fees.  The foregoing constitutes your sole and exclusive remedy for any breach of the foregoing warranty.  Vnomic will have no warranty obligations under this Section 7.1 to the extent any warranty claim results from or relates to: (a) use of the Software or Service that is not in accordance with these Terms or the Documentation; (b) use of a version of the Software other than the most current version; (c) any issues arising from the failure of the Software or Service to interoperate with any other software or services, except to the extent that such interoperability is mandated in the applicable Documentation; (d) any use of the Software or Service in a computing environment not meeting the system requirements set forth in the Documentation, including hardware and operating system requirements; (e) any issues arising from the acts or omissions of any Third Party Service Provider; or (f) any nonconformance that is not reproducible by Vnomic. 
7.2	Disclaimer.  EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 7 AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND SERVICE ARE PROVIDED “AS IS,” AND VNOMIC (AND ITS SUPPLIERS) MAKES NO (AND HEREBY DISCLAIMS ALL) WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE USE, MISUSE, OR INABILITY TO USE THE SOFTWARE OR SERVICE (IN WHOLE OR IN PART) OR ANY OTHER PRODUCTS OR SERVICES PROVIDED TO YOU BY VNOMIC.  VNOMIC (AND ITS SUPPLIERS) DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SOFTWARE OR SERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE.  VNOMIC IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
8.	LIMITATION OF LIABILITY
8.1	Types and Amounts of Damages.  TO THE MAXIMUM EXTENT  PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL VNOMIC BE LIABLE TO YOU FOR ANY SPECIAL, EXEMPLARY, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES OR COSTS DUE TO LOSS OF PROFITS, DATA, USE OR GOODWILL, ARISING OUT OF OR RELATING TO THE SOFTWARE, SERVICE, ANY OTHER PRODUCTS OR SERVICES PROVIDED BY VNOMIC, OR THESE TERMS, REGARDLESS OF THE CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, EVEN IF VNOMIC HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES.  IN NO EVENT SHALL VNOMIC BE LIABLE FOR PROCUREMENT COSTS OF SUBSTITUTE PRODUCTS OR SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE MAXIMUM AGGREGATE LIABILITY OF VNOMIC ARISING OUT OF OR RELATING TO THE SOFTWARE, SERVICE, ANY OTHER PRODUCTS OR SERVICES PROVIDED BY VNOMIC, AND THESE TERMS SHALL NOT EXCEED THE FEES PAID BY YOU TO THE MARKETPLACE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CIRCUMSTANCES GIVING RISE TO THE CLAIM.  THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THESE TERMS WILL NOT INCREASE VNOMIC’S LIABILITY.  IN NO EVENT SHALL VNOMIC’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS. NOTWITHSTANDING ANYTHING TO THE CONTRARY, VNOMIC WILL NOT BE LIABLE TO YOU IN CONNECTION WITH ANY ACTS OR OMISSIONS OF ANY THIRD PARTY SERVICE PROVIDER.
8.2	Basis of the Bargain.  The parties agree that the limitations of liability set forth in this Section shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy.  The parties acknowledge that the prices have been set and these Terms entered into in reliance upon these limitations of liability and that all such limitations form an essential basis of the bargain between the parties. 
8.3	Additional Rights.  Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you. 
9.	INDEMNIFICATION
9.1	By Vnomic.  Vnomic will defend at its expense any suit brought against you, and will pay any settlement Vnomic makes or approves or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Software or Service misappropriates any trade secret recognized under the Uniform Trade Secrets Act or infringes any United States copyright.  If any portion of the Software or Service becomes, or in Vnomic’s opinion is likely to become, the subject of a claim of infringement or misappropriation, Vnomic may, at Vnomic’s option: (a) procure for you the right to continue using the Software or Service, as applicable; (b) replace the Software or Service, as applicable, with non-infringing software or services which do not materially impair the functionality of the Software or Service; (c) modify the Software or Service, as applicable, so that it becomes non-infringing; or (d) terminate these Terms and refund the unused portion of any applicable fees, and upon such termination, you will immediately cease all use of the Software and Service.  Notwithstanding the foregoing, Vnomic shall have no obligation under this section or otherwise with respect to any infringement claim based upon (w) any use of the Software or Service not in accordance with these Terms or the Documentation; (x) Vnomic’s conformance to your specifications; (y) any use of the Software or Service in combination with other products, services, equipment, or software not supplied by Vnomic; or (z) any modification of the Software or Service by any person other than Vnomic or its authorized agents.  This Section 9.1 states your sole and exclusive remedy for claims of intellectual property infringement or misappropriation. 
9.2	By You.  You agree to defend, indemnify and hold Vnomic harmless from and against any claims, suits, losses, damages, liabilities, fines, penalties, sanctions, costs, and expenses (including reasonable attorneys’ fees) brought by third parties based upon, resulting from or related to: (a) any improper or unauthorized use of the Service by you or your Users; (b) any breach or inaccuracy of any representations or warranties made by you in these Terms; or (c) any breach of Section 11.3 (Import and Export Compliance).  
9.3	Procedure.  The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the following: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
10.	TERMINATION
10.1	Term.  These Terms will continue until terminated by either you or Vnomic as set forth in the Terms (such period, the “Term”).
10.2	Termination by You.  If you wish to terminate these Terms, you may do so by notifying Vnomic or Marketplace at any time.
10.3	Termination by Vnomic.  Vnomic may at any time terminate these Terms if (a) you have breached any provision of these Terms (or have acted in a manner that clearly shows you do not intend to, or are unable to, comply with these Terms); (b) Vnomic is required to do so by law (for example, where the provision of the Service to you is, or becomes, unlawful); (c) the provision of the Service to you by Vnomic is, in Vnomic’s opinion, no longer commercially viable; or (d) Vnomic has elected in its sole discretion to discontinue the Software or Service (or any part thereof).
10.4	Effect of Termination.  Upon termination of these Terms, you shall promptly discontinue use of the Software and Service and permanently erase all copies of the Software.  Sections 1, 2.2, 2.3, 4.2, 5.2, 6, 8, 9.2, 10, 11, 12.4, and 13  will survive the termination of these Terms for any reason.
11.	MISCELLANEOUS
11.1	No Support; Modifications of Service; Software Updates.  You acknowledge and agree that Vnomic has no obligation to provide you with any support or maintenance in connection with the Software or Service. Vnomic reserves the right to modify or update the Service at any time without notice to you. Vnomic may choose in its sole discretion to make updates to the Software available. Some of these updates may be automatically installed. You hereby consent to the automatic updating of any Software installed on your networks and systems.
11.2	Governing Law and Venue.  These Terms and any action related thereto will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction.  Any action or proceeding arising from or relating to these Terms must be brought in a federal court located in the Northern District of California or in state court in Santa Clara County, California, and each party irrevocably submits to the exclusive jurisdiction and venue of any such court in any such action or proceeding, except that Vnomic may file a claim or take action in any court having jurisdiction to protect its intellectual property or confidential or proprietary information. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms. 
11.3	Import and Export Compliance.  You acknowledge that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Software.  You agree to comply with all applicable import, re-import, export, and re-export laws, rules, and regulations of the United States and foreign jurisdictions, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department's Office of Foreign Assets Control, and the International Traffic in Arms Regulations (“ITAR”) maintained by the U.S. Department of State, in connection with your use of the Software and Service. You are solely responsible for compliance related to the manner in which you choose to use the Service.
11.4	Severability; Waiver; Construction.  If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. The headings of Sections of these Terms are for convenience and are not to be used in interpreting these Terms. “Includes” and “including” are not limiting.
11.5	Remedies.  The parties acknowledge that any actual or threatened breach of the Sections 2 (License Grant and Restrictions) or 6 (Confidentiality) will constitute immediate, irreparable harm to the non-breaching party for which monetary damages would be an inadequate remedy, and that injunctive relief is an appropriate remedy for such breach.  
11.6	No Assignment; Subcontracting.  Neither party shall assign or otherwise transfer these Terms, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign these Terms in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets without any consent of the other party. Notwithstanding the foregoing, Vnomic will have the right to engage subcontractors or service providers in connection with these Terms. These Terms shall be binding upon the parties and their respective successors and permitted assigns. 
11.7	Force Majeure.  Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of these Terms if such delay is caused by a labor dispute, shortage of materials, telecommunications failures, Third Party Service Provider, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
11.8	Independent Contractors.  The parties’ relationship is that of an independent contractor, and neither party is an agent or partner of the other.
11.9	Notices.  You are responsible for updating your data to provide Vnomic with your most current email address.  In the event that the last email address you have provided to Vnomic is not valid, or for any reason is not capable of delivering to you any notices required by these Terms, Vnomic’s dispatch of the email containing such notice will nonetheless constitute effective notice of the changes described on the notice.  Any notice provided to Vnomic pursuant to these Terms should be sent to:
Vnomic Inc. 1250 Oakmead parkway Suite 210, Sunnyvale, CA 94085 or via email to subscription- notice@vnomic.com

11.10	Modifications; Entire Agreement.  Vnomic may change the Terms from time to time at its sole discretion, and if Vnomic makes any material changes, we may notify you by sending an email to the last email address you provided to us and/or by posting notice of the change on the Marketplace.  Any material changes to these Terms will be effective upon the earlier of thirty (30) calendar days following our dispatch of an email notice to you or thirty (30) calendar days following our posting of notice of the changes on the Marketplace.  These changes will be effective immediately for new users of our Service.  Vnomic may require you to provide consent to the updated Terms in a specified manner before further use of the Service is permitted.  Otherwise, your continued use of the Service constitutes your acceptance of the changes.  Please regularly check the Site to view the then-current Terms. Except as set forth in this Section, no modification of or amendment to these Terms, or any waiver of any rights under these Terms, will be effective unless in writing and signed by your authorized signatory and an officer of Vnomic. These Terms are the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersede and merge all prior discussions between the parties with respect to such subject matters.