TERMS AND CONDITIONS 

These Terms and Conditions ("Agreement”) are entered into by and between INSEER, Inc., a Delaware corporation having its principal office at 3701 Whitetail Court NE, Iowa City, IA 52240 ("us", "we", or "our" or “INSEER”) and the undersigned individual or entity (“Customer” or “you” or “your”). This Agreement is effective as of initial use of the INSEER product or acknowledged and accepted electronically online (“Effective Date”).  

1. Nature of Agreement. By entering into this Agreement, you agree to the services from, and/or accessing the hosted services through our third-party hosting provider (the “Service”). Those Services include, but are not limited to, the upload and processing of videos and/or the entry/upload of other data for the purposes of ergonomic assessments. This agreement defines the terms and conditions under which INSEER has agreed to provide to Customer certain Services in exchange for subscription fees. “Customer” means any person, or entity on behalf of which a person, who accepts and has agreed to purchase the Services from INSEER. Those Services include, but are not limited to, the upload and processing of videos and/or the entry/upload of other data for the purposes or ergonomic assessments. The specific nature and term of the Services are (i) described in more detail in one or more attachments to this Agreement, each of which is referred to as a “Services Attachment” (e.g., invoice, subscription fee order, purchase order, User Agreement) or (ii) defined by choices made while registering, selecting and submitting payment for Services for such purpose. Customer also agrees to pay the additional fees, if an account requiring the same is described or defined, for the contracted Services. Any materials, data or other content made available to Customer in connection with the INSEER Services are referred to in this Agreement as the “Licensed Content.” Certain portions of the Licensed Content may originate with third-party contractors of INSEER. Such persons are referred to herein as the “Third-Party Licensors.” INSEER will be obligated to provide its Services (the “INSEER Services”) once INSEER and Customer have agreed in writing to this Agreement and one or more Services Attachments. In the event of any conflict between this Agreement and a Services Attachment, the terms of this Agreement will apply. 

2. Payment Terms. Unless otherwise stated in a Services Attachment, after the initial subscription fee, which shall be invoiced upon mutual execution of this Agreement, INSEER shall invoice Customer once for all subscription fees for the pilot period, unless such fees have been waived. If INSEER and the Customer decide to move forward with a fully paid version of the product, new payment terms will be submitted to the Customer. 

3. Duty of Care. INSEER shall use its commercial best efforts to provide the INSEER Services in a professional and workmanlike manner consistent with industry standards and applicable laws and regulations. However, because the provision of the INSEER Services involves the use by INSEER of third-party content providers and licensors, cloud hosting services (e.g., Amazon Web Services) as well as of the internet and third-party technology providers, INSEER cannot be responsible for problems arising from such sources. Additionally, the information included in the Licensed Content is derived from third-party records, and while INSEER will use commercially reasonable efforts in the sourcing of such information, it cannot and does not guarantee the accuracy or completeness of such information. The Licensed Content constitutes the “Confidential Information” (as defined below) of INSEER and its Third-Party Licensors and is therefore subject to the confidentiality provision of this Agreement. Customer may only use INSEER Services and Licensed Content, for its own internal business purposes, and may not resell, disseminate, recompile, or otherwise use the Licensed Content for any purpose not permitted herein. 

4. Compliance with Applicable Laws; Security of Passwords. 

1. Both parties agree that they will materially comply with all laws and regulations applicable to its obligations set forth in this Agreement; 

2. Customer may be issued certain passwords in connection with the INSEER Services and shall be responsible for maintaining their confidentiality and security, and for all activities conducted under Customer’s account, including all fees associated therewith. 

5. Certain Definitions. For the purposes of this Agreement, “INSEER Technology” are the methodology, web interfaces, mobile apps and database platforms used by INSEER to deliver the products and Services that it provides for its subscription fees. 

6. Security of Computer Systems and Networks. Customer agrees to use the software, networks and hardware provided by INSEER only in accordance with the terms of this Agreement, and not to access other systems which may be accessible via the INSEER Services. Customer additionally agrees to prohibit its employees and agents from interfering with or disrupting the use of any such systems or the INSEER Services. 

7. Ownership. As between INSEER and Customer, INSEER shall retain all right, title and interest in and to the INSEER Services and INSEER Technology, and any changes, derivatives, corrections, developments, bug fixes, enhancements, updates and other modifications thereto, and as between the parties all such rights shall vest in and be assigned to INSEER. Nothing in this Agreement will confer on Customer any right of ownership or interest in the any of the INSEER Services and INSEER Technology, other than the limited license set forth in this Section. In consideration of payment of the fees for the INSEER Services, subject to the terms and conditions of this Agreement, INSEER grants to Customer for the term of this Agreement, a world-wide, non-exclusive, royalty-free, non-transferable, non-sublicensable right to use the INSEER Services only for Customer’s internal purposes. Customer acknowledges and permits, without further payment or any kind and in perpetuity, INSEER to compile and use statistical or aggregate, non-personally identifiable and de-identified information about INSEER or its users of the INSEER Services; provided, however, that such use will not in any manner include contact information or otherwise identify and cannot be used to identify the Customer or any users. As Customer also hereby grants to INSEER a sublicensable, transferrable, royalty free, worldwide, perpetual, paid-up right and license to use any content, including but not limited to videos, video metadata, data entered into or compiled by the Service, in order to deliver the INSEER Technology to Customer. 

8. Accounts. When you create an account with us, you guarantee that you are above the age of 18, and that the information you provide us is accurate, complete, and current at all times. Inaccurate, incomplete, or obsolete information may result in the immediate termination of your account on the Service. You are responsible for maintaining the confidentiality of your account and password, including but not limited to the restriction of access to your computer and/or account. An account is intended for use by one named user with limitations on the size and number of videos processed as defined in the Services Attachment; use of an account by more than one user constitutes a breach of the terms of this Agreement and Customer’s account may be immediately disabled. You agree to accept responsibility for any and all activities or actions that occur under your account and/or password, whether your password is with our Service or a third-party service. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your account. You may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than you, without appropriate authorization. You may not use as a username any name that is offensive, vulgar or obscene. You may not upload content (e.g., videos) that contain content that is offensive, vulgar, obscene or illegal. Determination of what content is offensive, vulgar, obscene will be made by INSEER personnel, in their sole discretion. We reserve the right to refuse Service, terminate accounts, remove or edit content, or cancel orders in our sole discretion. We may terminate or suspend your account and bar access to the Service immediately, without prior notice or liability, under our sole discretion, for any reason whatsoever and without limitation, including but not limited to a breach of this Agreement. If you wish to terminate your account, you may simply discontinue using the Service. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability. 

9. Effect of Expiration or Termination. On the effective date of any expiration or termination of this Agreement, neither party will have any continuing obligations to the other except as expressly set forth herein, and: (a) INSEER will no longer make the INSEER Services available unless otherwise agreed by the parties in writing; (b) Customer shall pay INSEER all amounts theretofore accrued in accordance with the original payment terms; and (c) each party will return (or certify in writing that it has destroyed) all Confidential Information of the other within thirty (30) days, retaining only such copies thereof as are required to comply with applicable legal or accounting record-keeping requirements. 

10. Confidential Information. Each of the parties hereby acknowledges that in the course of performing its obligations hereunder, the other party may disclose to it certain information and know-how, which the disclosing party has identified as such or which a reasonable person would believe to be the same, that is non-public, confidential or proprietary to the disclosing party (“Confidential Information”). Each party acknowledges that any Confidential Information disclosed to it is of considerable commercial value and that the disclosing party would likely be harmed by the disclosure thereof, except as specifically authorized by the disclosing party. Each party therefore agrees to keep in strict confidence all such Confidential Information that may from time to time be disclosed to it and agrees not to disclose such information to any third party for any purpose other than those permitted herein without the prior written consent of the other. Each party agrees that because of the extraordinary nature of such information, the disclosing party may not have an adequate remedy at law in the event of the non-disclosing party’s breach or threatened breach of its non-disclosure obligations, and that the disclosing party may suffer irreparable injury and as a result of any such breach. Accordingly, in the event either party breaches or threatens to breach the obligations of confidentiality herein, in addition to and not in lieu of any legal or other remedies, the non-breaching party may pursue hereunder or under applicable law, each party shall have the right to seek equitable relief (including the issuance of a restraining order or injunction) from a court of competent jurisdiction, in addition to the right to seek all costs associated with seeking and obtaining such relief, including attorney's fees. The provisions of this paragraph shall not apply to any information identified as confidential to the extent it was (i) independently developed by the receiving party as evidenced by documentation in such party’s possession, (ii) lawfully received by it free of restrictions from another source having the right to furnish the same, (iii) generally known or available to the public without breach of this Agreement by the receiving party or (iv) known to the receiving party free of restriction at the time of such disclosure as evidenced by documentation in such party’s possession. 

11. Force Majeure. Neither party shall be liable for any delay or failure to perform any of its obligations hereunder to the extent that such delays or failures are due to circumstances beyond its reasonable control, including acts of God, strikes, riots, acts of war, or governmental regulations imposed after the date of this Agreement. 

12. Notices. All notices, requests or communications required hereunder shall be in writing and shall be deemed to have been duly given (i) upon delivery, if delivered personally against written receipt, (ii) three (3) days after posting by certified air mail, postage prepaid, return receipt requested, (iii) upon confirmed receipt, if delivered by telecopier or (iv) the next day, if delivered by a recognized overnight commercial courier, such as Federal Express or UPS, addressed in each instance to the parties at the addresses first set forth above (or at such other addresses as shall be given by either of the parties to the other in accordance with this paragraph). 

13. Disclaimer of Warranties. Your use of the Service is at your sole risk. The Service is provided on an "AS IS" and "AS AVAILABLE" basis. The Service is provided without warranties of any kind, whether expressed or implied, including, but not limited to, the implied warranty of merchantability, fitness for a particular purpose, non-infringement or course of performance. Except for the express warranties stated in this Agreement, neither INSEER nor any third-party licensor makes, and each hereby disclaims, any and all other express, implied and/or statutory warranties with respect to the INSEER Services and/or Licensed Content, including, but not limited to, warranties of title, merchantability, fitness for a particular purpose. INSEER its subsidiaries, affiliates, and its licensors do not warrant that a) the Service will function uninterrupted, secure or available at any particular time or location; b) any errors or defects will be corrected; c) the Service is free of viruses or other harmful components; or d) the results of using the Service will meet your requirements. As the INSEER Services are provided via a cloud hosting/storage provider (e.g., Amazon Web Services), INSEER is not responsible for any loss of data resulting from operation, acts or omissions of the cloud hosting or storage provider or any other third party. Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations below may not apply to you. 

14. Limitations of Liability. Except for a breach of Section 10 (“Confidential Information”) or the indemnification obligations arising under Section 18 (“Indemnification”), in no event will either party be liable to the other party or any third party for any special, incidental, punitive, indirect or consequential damages, including, but not limited to, lost revenue or lost profits, even if advised of the possibility of such damages, whether arising under a theory of contract, tort (including negligence), strict liability or otherwise. Notwithstanding the foregoing, neither party’s liability will exceed the aggregate fees paid to INSEER during the three (3) month period preceding the events giving rise to the claim. 

15. Basis of the Bargain; Failure of Essential Purpose. The parties acknowledge that INSEER has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed of their essential purpose. 

16. Availability, Errors and Inaccuracies. We are constantly updating product and service offerings on the Service. We may experience delays in updating information on the Service and in our advertising on other web sites. The information found on the Service may contain errors or inaccuracies and may not be complete or current. Products or services may be mispriced, described inaccurately, or unavailable on the Service and we cannot guarantee the accuracy or completeness of any information found on the Service. We therefore reserve the right to change or update information and to correct errors, inaccuracies, or omissions at any time without prior notice.

17. Links to Other Web Sites. Our Service may contain links to third party web sites or services that are not owned or controlled by INSEER. INSEER has no control over, and assumes no responsibility for the content, privacy policies, or practices of any third-party web sites or services. We do not warrant the offerings of any of these entities/individuals or their websites. You acknowledge and agree that INSEER shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such third-party web sites or services. We strongly advise you to read the terms and conditions and privacy policies of any third-party web sites or services that you visit. 

18. Indemnification. 

1. Except as otherwise limited by the other provisions of this Agreement, the Customer agrees to indemnify, defend and hold harmless INSEER and any employee, representative, agent, director, officer or permitted assign of INSEER (each an “Indemnified Party”) from and against any and all claims, actions, suits, proceedings, liabilities, obligations, losses, and damages, amounts paid in settlement, interest, costs and expenses (including reasonable attorneys’ fees, court costs and other out-of-pocket expenses incurred in investigating, preparing or defending the foregoing) (collectively, “Losses”) arising out of a third party claim against INSEER alleging that: (a) Customer or Customer’s client violated or failed to comply with any provision of this Agreement or applicable law in its use or handling of INSEER Services and/or Licensed Content provided by INSEER; (b) Customer or Customer’s client infringed a copyright or trademark or misappropriated a trade secret by using the INSEER Services or Licensed Content in an unauthorized manner; or (c) Customer’s breach of its confidentiality obligations. 

2. Notwithstanding anything in this Agreement to the contrary, at INSEER’s expense as provided herein, INSEER agrees to defend, indemnify, and hold harmless Customer from and against any claim, action, proceeding, liability, loss, damage, cost, or expense, arising out of: (a) any finding by a court of competent jurisdiction by a third party that Customer's authorized use of the INSEER Services infringes a third party's intellectual property rights; (b) any breach of confidentiality; (c) INSEER’s gross negligence or willful misconduct in its performance under this Agreement; or (d) any bodily injury, death of any person or damage to real or tangible personal property caused by the grossly negligent or more culpable acts of Indemnifying Party or its personnel. 

   1. Both parties hereto shall cooperate in the defense or prosecution of any such third-party claim and shall furnish such records, information and testimony, as may be reasonably requested in connection therewith. 

   2. The indemnified party shall promptly notify the indemnifying party in writing of the assertion and basis of any claim, or the commencement and basis of any action, suit or proceeding by any third party in respect of which indemnity may be sought hereunder and will give the indemnifying party such information with respect thereto as the indemnifying party may reasonably request, but failure to give such notice shall not relieve the indemnifying party of any liability hereunder (unless the indemnifying party has suffered material prejudice by such failure). 

   3. The indemnified party shall not consent to, or enter into, any compromise or settlement which settlement, or consent to the entry of any judgment arising from any such claim without the indemnifying party’s prior written consent, not to be unreasonably withheld.

19. Assignment. We may assign this Agreement in whole as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets. This Agreement will bind and inure to the benefit of each party’s successors and permitted assigns. 

20. Export Controls. Customer will not export, re-export, transfer, or otherwise make available, whether directly or indirectly, any regulated item or information to anyone outside the U.S. in connection with this Agreement without first complying with all U.S. export control laws and regulations and those of any other country within whose jurisdiction Customer operates or does business. 

21. Miscellaneous. 

1. Except as otherwise set forth specifically herein, the remedies provided by this Agreement are not intended to be exclusive. Each shall be cumulative and shall be in addition to all other remedies available to either party under law or equity. 

2. This Agreement shall be construed in accordance with the laws of the State of Delaware, without reference to conflict of laws provisions thereof. The parties agree that any litigation arising between the parties in relation to this Agreement shall be initiated and maintained in the Circuit Court of the County of Sussex, Delaware, or the U.S. District Court for the District of Delaware, and the parties hereby irrevocably submit to the exclusive jurisdiction and venue of such courts. 

3. This Agreement and its Services Attachments constitutes the complete understanding and agreement of the parties with respect to the subject matter hereof and supersedes all prior communications and agreements with respect thereto. They may not be modified, amended or in any way altered, except in writing signed by both parties. No agent of any party hereto is authorized to make any representation, promise or warranty inconsistent with the terms hereof. Captions used herein are for convenience of reference only and shall not be used in the construction or interpretation hereof. This Agreement may be executed in counterparts, all of which together shall be deemed one and the same Agreement. 

4. The parties to this Agreement are and shall remain independent contractors, and nothing herein shall be construed to create a partnership or joint venture between them and neither shall have the power or authority to bind or obligate the other in any manner not expressly set forth herein. 

5. If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. No term hereof shall be deemed waived, and no breach excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. Except as otherwise expressly provided in this Agreement, there are no third-party beneficiaries to this Agreement. 

6. Customer agrees that INSEER will not, unless agreed to by Customer in writing, refer to Customer as a customer.

22. Waiver of Jury Trial. CUSTOMER AND INSEER ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL RIGHT, BUT ONE THAT MAY BE WAIVED. AFTER CONSULTING (OR HAVING HAD THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF THEIR CHOICE, KNOWINGLY AND VOLUNTARILY, AND FOR THEIR MUTUAL BENEFIT, CUSTOMER AND INSEER WAIVE ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN ANY WAY RELATED TO THIS AGREEMENT.