These Terms and Conditions, including all Order Forms (collectively, this “Agreement”), is between Sumatra Solutions, Inc. (“Sumatra”) and the customer (“Customer”) whose name appears on the Order Form regarding the Service and is effective as of the Effective Date set forth on the Order Form. Sumatra and Customer are each referred to individually as a “party,” and collectively as the “parties.”

PLEASE REVIEW THIS AGREEMENT CAREFULLY. BY CLICKING/CHECKING THE “I AGREE” BUTTON/BOX, REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICES, CUSTOMER AGREES TO BE BOUND BY THIS AGREEMENT, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO CUSTOMER. IF CUSTOMER DOES NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, CUSTOMER MAY NOT ACCESS OR USE THE SERVICE.

You represent and warrant that you: (a) are of legal age to form a binding contract; (b) have the right, authority, and capacity to agree to and abide by this Agreement; and (c) are not a person barred from using the Services under the laws of any applicable jurisdiction.

1. Definitions

a. “Admin User” means any Customer employee or on-site contractor designated by Customer to have administrative access to the Service on behalf of Customer.

b. “Aggregate Data” means Customer Data (as defined in Section 6(a)) that has been aggregated in a manner that does not reveal any personally identifiable information and cannot reasonably be used identify Customer as the source of such data.

c. “Credentials” means any user accounts, passwords and other authentication credentials associated with use of the Services by Customer.

d. “Customer Facilities” means Credentials and any account, hardware, system or other facility within the custody or control of Customer.

e. “Emergency Security Issue” means any: (i) use of the Services by Customer in violation of the terms and conditions of this Agreement that disrupts or is reasonably likely to disrupt the availability of the Services to other users; or (ii) access to the Services by any unauthorized third party through use of any Customer Facilities.

f. “Intellectual Property” means all rights associated with patents and inventions; copyrights, mask works and other works of authorship (including moral rights); trademarks, service marks, trade dress, trade names, logos and other source identifiers; trade secrets; software, databases and data; and all other intellectual property and industrial designs.

g. “Internal Purposes” means internal business use within Customer’s systems, networks, and devices (“Customer Environment”), to process its first-party and licensed third-party data, in accordance with the Documentation, as well as testing and evaluation of the Services in order to provide Feedback to Sumatra.

h. “Malicious Code” means without limitation code, files, scripts, agents or programs intended to do harm, including without limitation viruses, worms, time bombs and trojan horses.

i. “Order Form” means each mutually agreed upon order on Sumatra’s Order Form template that specifies the Services, including the type or quantity of items, including the amount of data, the fees for such items and any additional terms applicable to the use of such items.j. “Person” means an individual, corporation, partnership, joint venture, limited liability entity, franchisor, franchisee, governmental authority, unincorporated organization, trust, association, or other entity.

k. “Services” means any and all of the services, software and other offerings provided by Sumatra pursuant to this Agreement, including the offerings provided through https://sumatra.ai, any other mobile applications and APIs provided by Sumatra, and all such services and software labeled as alpha, beta, pre-release, trial, preview or otherwise. Services may include any enhancements, updates, upgrades, derivatives or bug fixes to such services, software, and offerings, and any documentation, add-ons, templates, sample data sets, and hardware devices as provided by Sumatra.

2. Grant of Rights and Restrictions

a. Grant of Rights. During the term of this Agreement and subject to and conditioned upon Customer’s compliance in all material respects with the terms and conditions of this Agreement (including any limitations on use set forth in the Order Form), Sumatra hereby grants Customer a limited, non-exclusive, non-sublicensable right to access and use the Services only for the Internal Purpose.

b. Restrictions. Except as expressly authorized in this Agreement or by Sumatra, Customer will not, and will not permit any third party to: (i) access or use the Services for any other purposes (including for any competitive analysis, commercial, professional, or other for-profit purposes); (ii) copy the Services (except as required to run the Services and for reasonable backup purposes); (iii) modify, adapt, or create derivative works of the Services; (iv) rent, lease, loan, resell, transfer, sublicense, display or distribute the Services to any third party; (v) use or offer any functionality of the Services on a service provider, service bureau, hosted, software as a service, or time sharing basis, provide or permit other individuals or entities to create Internet “links” to the Services, or "frame" or "mirror" the Services on any other server, or wireless or Internet-based device; (vi) decompile, disassemble, translate or reverse-engineer the Services or otherwise attempt to derive the Services source code, algorithms, methods or techniques used or embodied in the Services; (vii) disclose to any third party the results of any benchmark tests or other evaluation of the Services, or (viii) remove, alter, obscure, cover or change any trademark, copyright or other proprietary notices, labels or markings from or on the Services; (ix) interfere with or disrupt servers or networks connected to any website through which the Services are provided; (x) use the Services to collect or store personal data about any person or entity; (xi) use the Services to build a similar or competitive product or service; (xii) use the Services to transmit Malicious Code or (xiii) use the Services for any illegal, unauthorized or otherwise improper purposes.

c. Other Parties. Any Admin User, employee, consultant, contractor or agent hired to perform services for Customer may operate the Services on Customer’s behalf solely under these terms and conditions, provided that: (i) Customer is responsible for ensuring that any such party agrees in a legally enforceable manner to abide by and fully comply with the terms and conditions of this Agreement on the same basis as applicable to Customer; (ii) such use is only in connection with Customer’s Internal Purposes; (iii) such use does not represent or constitute an increase in the scope of the licenses provided hereunder; and (iv) Customer remains fully responsible and liable for any and all acts or omissions by such third parties related to this Agreement.

d. Compliance Monitoring. Customer acknowledges and agrees that the Services may include features that allow Sumatra to monitor use of the Services to confirm that such use complies with this Agreement. Such features may further permit Sumatra to disable use of the Services remotely.

e. Changes. Sumatra may improve, modify, add or remove functions or features to or from the Services from time to time, with or without notice to Customer.

3. Customer Responsibilities

a. Compliance with Laws. Customer shall be solely responsible for ensuring that it uses the Services only in a manner that complies with all applicable laws and regulations, including for ensuring that Customer is permitted under all applicable laws and regulations to use and provide Customer Data (defined below) to Sumatra for processing in accordance with this Agreement.

b. Technical Requirements. Customer shall be solely responsible for obtaining, configuring and maintaining any third-party hardware, network connectivity and third-party software required to access and use the Services, including computers, operating systems, web browsers and storage devices.

c. Third Party Sites. The Services may contain links to other websites (“Third Party Sites”). Sumatra does not endorse, sanction or verify the accuracy or ownership of the information contained in/on any Third Party Site or any products or services advertised on Third Party Sites. If Customer decides to leave the Services and navigate to Third Party Sites, or install any software or download content from any such Third Party Sites, Customer does so at Customer’s own risk. Once Customer accesses a Third Party Site through a link in the Services, Customer may no longer be protected by this Agreement and Customer may be subject to the terms and conditions of such Third Party Site. Customer should review the applicable policies, including privacy and data gathering practices, of any Third Party Site to which Customer navigates from the Services, or relating to any software Customer uses or installs from a Third Party Site. Concerns regarding a Third Party Site should be directed to the Third Party Site itself. Sumatra bears no responsibility for any action associated with any Third Party Site.

d. Protection. Customer shall be solely responsible for protecting the confidentiality of Credentials and all activities undertaken using Customer Facilities. In the event that Customer becomes aware of any unauthorized access to or use of the Services through use of Customer Facilities, Customer shall promptly give written notice to Sumatra of such breach and make reasonable efforts to eliminate it. Customer shall at all times implement appropriate security policies and procedures and access control methodologies to safeguard access to and use of the Services through Customer Facilities. All such measures shall comply with prevailing industry standards but in no case consist of less than reasonable care. Customer acknowledges that Sumatra is not responsible for any losses, damages, costs, expenses or claims that result from stolen or lost passwords.

4. Fees and Taxes

a. Fees. Customer shall pay Sumatra the applicable fees set forth in the Order Form pursuant to the payment terms therein. In the event that the Order Form does not set forth payment terms, payment shall be due within thirty (30) days from the date of invoice.

b. Late Fees. Any payment not received from Customer when due shall incur interest at the rate of one and a half percent (1.5%) per month or the maximum rate permitted by law, whichever is less. If Customer is delinquent in its payments for two (2) consecutive months, Sumatra may, upon written notice to Customer, modify the payment terms to require full pre-payment of any or all Order Forms (both currently contracted and in the future), or require other assurances to secure Customer’s payment obligations hereunder.

c. Taxes. All Fees exclude any and all taxes and similar fees now in force, enacted or imposed in the future on the transaction, delivery of the Services, including any sales, use or value added taxes, goods and services tax, consumption tax, customs duties or similar charges, but excluding withholding taxes and taxes solely based on Sumatra’s net income, and Customer shall be responsible for payment of all such taxes, duties and charges, and any related penalties and interest arising from the payment of such amounts. If Customer is legally required to withhold any amounts to be paid to Sumatra, Customer will deduct such taxes from the amount otherwise owed, pay the tax to the appropriate taxing authority, and provide to Sumatra on a timely basis properly executed certificates, receipts or other documentation as evidence of such tax payment to the taxing authority, sufficient to permit Sumatra to establish Sumatra’s right to a credit for such taxes against Sumatra’s income tax liability. Customer shall provide Sumatra with such assistance as Sumatra shall reasonably request in connection with any application by Sumatra to qualify for the benefit of a reduced rate of withholding taxation under the terms of any applicable income tax treaty.

5. Intellectual Property

a. Responsibility for Content. All data, information and other content accessible through the Services (“Data”) are the sole responsibility of the party from whom such materials originated. Customer acknowledges and agrees that Customer, and not Sumatra, is solely responsible for (i) all Data that Customer submits, uploads, emails, transmits or otherwise makes available through the Services (“Customer Data”); and (ii) giving all required notices and obtaining all necessary consents and rights (including all required permissions from Intellectual Property holders) before submitting Customer Data through or to the Services.

b. Sumatra Ownership. The Services are licensed, not sold, and Sumatra, its suppliers or its licensors, retains and reserves all rights not expressly granted in this Agreement. Customer acknowledges and agrees that, as between Sumatra and Customer, Sumatra, its suppliers or its licensors own all right, title and interest (including all Intellectual Property) in and to the Services, and all improvements, enhancements or modifications thereto, including all Data therein (except for Customer Data), regardless of whether or not any such improvements, enhancements or modifications are made pursuant to the Order Form.

c. Customer Data. Sumatra acknowledges and agrees that, as between Customer and Sumatra, Customer owns all right, title and interest (including all Intellectual Property) in and to Customer Data. Customer hereby grants Sumatra and its service providers a worldwide, royalty-free, non-exclusive license to use, reproduce, modify, adapt, create derivative works from, perform, display, distribute, make and have made Customer Data (including Aggregate Data) as necessary for Sumatra to: (i) provide access to the Services to Customer; (ii) provide maintenance, support, calibration, diagnostic and troubleshooting services to Customer relating to the Services; and (iii) monitor and improve the Services. Sumatra shall process and use any personal data that Customer provides in accordance with the Sumatra Privacy Policy located at https://sumatra.ai/privacy.

d. Aggregate Data. Customer acknowledges and agrees that Sumatra may collect or generate Aggregate Data in connection with providing Customer with access to the Services, and Customer hereby grants Sumatra and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Aggregate Data for any lawful purpose.

e. Suggestions. If Customer elects to provide or make available to Sumatra any suggestions, comments, ideas, improvements or other feedback relating to the Services (“Suggestions”), Customer hereby grants Sumatra a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made Suggestions in any manner, without credit or compensation to Customer.

f. Trademarks. During the term of this Agreement, Customer hereby grants Sumatra a limited, nonexclusive, royalty-free license to use Customer’s names, logos, trade names, domain names, uniform resource locators, trademarks and service marks (“Marks”) (i) as reasonably necessary for Sumatra to provide Customer with the Services, (ii) on Sumatra’s website and in sales presentations and activities, marketing materials and promotional videos identifying that Customer is a customer of Sumatra, and (iii) the publication of a case study using Customer’s Marks; provided, that such case study shall be subject to Customer’s approval, which shall not be unreasonably withheld, conditioned or delayed. Sumatra will: (i) not alter or otherwise modify any of the Marks; (ii) nor attack ownership of, or rights to, any of the Marks; and (iii) shall remove any Marks within twenty-four (24) hours of Customer’s written request thereof.

g. Intellectual Property Notices. Customer shall not remove, obscure or modify in any way any copyright or trademark notices or other notices or disclaimers that appear within the Services.

h. Reservation of Rights. Each of the parties reserves all rights not expressly granted under this Agreement.

6. Term, Suspension and Termination

a. Term. The term for this Agreement shall commence on the Effective Date and continue in effect until the conclusion of the Initial Term, each as specified in the Order Form. Thereafter, this Agreement shall automatically renew for successive terms equal in duration to the Initial Term (each, a “Renewal Term”), subject to payment of all applicable fees by Customer, unless either party gives written notice of non-renewal to the other party within thirty (30) days before the conclusion of the Initial Term or applicable Renewal Term. Sumatra reserves the right to change prices and other terms for the Services for any upcoming Renewal Term by providing notice of such change to Customer at least thirty (30) days before the commencement of the applicable Renewal Term.

b. Suspension. Sumatra reserves the right to suspend Customer’s access to or use of the Services in the event of: (i) Customer’s breach of this Agreement, including Customer’s failure to pay any fees when due under this Agreement; or (ii) an Emergency Security Issue, in which case Sumatra will make commercially reasonable efforts to limit suspension to the minimum extent and duration necessary to eliminate the Emergency Security Issue.

c. Termination. Notwithstanding anything to the contrary, this Agreement may be terminated as follows: (i) by the non-breaching party upon a material breach of this Agreement by the other party, which breach is not cured within thirty (30) days after receipt of written notice from the non-breaching party; or (ii) by either party in the event the other party becomes insolvent or bankrupt; becomes the subject of any proceedings under bankruptcy, insolvency or debtor’s relief law; has a receiver or manager appointed; makes an assignment for the benefit of creditors; or takes the benefit of any applicable law or statute in force for the winding up or liquidation of such party’s business.

d. Events Upon Termination. Upon termination of this Agreement for any reason: (i) Customer shall immediately cease all use of and access to the Services; (ii) Customer shall return all portions of the Services within Customers custody or control by methods previously approved by Sumatra; and (iii) each party shall immediately cease all use of the other party’s Confidential Information (as defined in Section 9(a)) and return or destroy all copies of such Confidential Information that are within its custody or control.

e. Survival. Any provision that, by its terms, is intended to survive the expiration or termination of this Agreement shall survive such expiration or termination, including Sections: 2(b) {Restrictions}; 4 {Fees and Taxes}; 5 {Intellectual Property}; 6(d) {Events Upon Termination}; 6(e) {Survival}; 7 {Representations and Warranties}; 8 {Indemnification}; 9 {Confidential Information}; 10 {Disclaimer of Warranties}; 11 {Limitation of Liability}; and 12 {Miscellaneous}.

7. Representations and Warranties

Sumatra and Customer each represents and warrants to the other that: (i) it has the necessary power and authority to enter into this Agreement; (ii) the execution and performance of this Agreement have been authorized by all necessary corporate or institutional action; (iii) entry into and performance of this Agreement will not conflict with any provision of law or the certificate of incorporation, bylaws or comparable organizational documents of such party; (v) no action by any governmental organization is necessary to make this Agreement valid and binding upon such party; and (iv) it possesses all governmental licenses and approvals necessary to perform its obligations under this Agreement.

8. Indemnification

a. Sumatra Indemnification. Sumatra agrees that Customer shall have no liability and Sumatra shall indemnify, defend and hold Customer harmless against any loss, damage, cost, liability and expense (including reasonable attorneys’ fees) finally awarded by a court of competent jurisdiction or paid in settlement to the extent arising from any action or claim of a third party (collectively, “Losses”) asserting that Customer’s use of the Services, when used as expressly permitted by this Agreement, infringes the Intellectual Property of such third party; provided, however, that Sumatra shall have no obligation to indemnify Customer from any Losses to the extent they arise from: (i) use of the Services by Customer or through Customer Facilities in any manner that does not comply in all respects with the terms and conditions of this Agreement or applicable laws or regulations; (ii) use of the Services by Customer or through Customer Facilities in combination with any hardware, software, or consumables not provided or approved by Sumatra; (iii) modifications to the Services made by or on behalf of Customer or through Customer Facilities that are not authorized by Sumatra; or (iv) any Customer Data (Sections 9(a)(i) through 9(a)(iv)), collectively, “Customer Acts”). In the event that any part of the Services becomes the subject of a Loss or Sumatra reasonably determines that any part of the Services is likely to become the subject of a Loss, Sumatra may, at its sole discretion: (1) procure for Customer a license as necessary for Customer to exercise the rights granted by Sumatra under this Agreement; (2) modify or replace the Services to avoid infringement, provided, however, that the Services as modified or replaced retains materially the same or better features and functionality; or (3) terminate this Agreement and provide a pro rata refund of the fees paid by Customer to Sumatra for the unused portion of the Initial Term or Renewal Term, as applicable.

b. Customer Indemnification. Customer agrees that Sumatra shall have no liability and Customer shall indemnify, defend and hold Sumatra harmless against any Loss to the extent arising from any (i) Customer Acts; (ii) Customer’s products or services, or (iii) Customer Data.

c. Procedure. The indemnified party shall: (i) give the indemnifying party prompt written notice of any indemnified claim; provided, however, that failure of the indemnified party to give such prompt written notice shall not relieve the indemnifying party of any obligation to indemnify pursuant to this Section 9, except to the extent the indemnifying party has been materially prejudiced thereby; (ii) cooperate fully with the indemnifying party, at the indemnifying party’s expense, in the defense or settlement of any indemnified claim; and (iii) give the indemnifying party sole and complete control over the defense or settlement of any indemnified claim; provided, however, that any settlement must include a complete release of the indemnified party without requiring the indemnified party to make any payment or bear any obligation.

9. Confidential Information

a. Definition. “Confidential Information” means information identified in good faith by either party as being confidential or proprietary, or information that, given its nature or the circumstances of its disclosure, should reasonably be understood to be confidential or proprietary. Ionization Lab’s Confidential Information shall include, but not be limited to, the terms and conditions of this Agreement, the source code and architectural and physical framework of the various components the Services, information relating to future releases of Services components, testing processes, training videos, instructions, manuals, pricing information, and business plans provided by either party.

b. Non-Disclosure. Each party will use the Confidential Information provided by the other party only as necessary to exercise its rights and discharge its obligations under this Agreement and for no other purpose without the prior written consent of the disclosing party. Neither party shall disclose to a third-party Confidential Information of the other party. Customer agrees that at no time will Customer disseminate any materials supplied to Customer, including, without limitation via blog, video channels, data uploading services, etc. To maintain in confidence the Confidential Information of the disclosing party, the receiving party shall use the same degree of care as it uses to protect the confidentiality of its own Confidential Information of like nature, but no less than a reasonable degree of care. The foregoing obligations shall not apply to any Confidential Information that: (i) can be demonstrated to have been publicly known at the time of the disclosing party’s disclosure of such Confidential Information to the receiving party; (ii) becomes part of the public domain or publicly known, by publication or otherwise, not due to any unauthorized act or omission by the receiving party; (iii) can be demonstrated to have been independently developed or acquired by the receiving party without reference to or reliance upon such Confidential Information; (iv) is provided to the receiving party by a third party who is under no obligation to the disclosing party to keep the information confidential; or (v) is required to be disclosed by law; provided, however, that the receiving party shall take reasonable actions to minimize such disclosure and promptly notify the disclosing party, to the extent permitted by law, so that the disclosing party may take lawful actions to avoid or minimize such disclosure.

10. DISCLAIMER OF WARRANTIES

THE SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS.” SUMATRA, TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXPRESSLY DISCLAIMS ALL WARRANTIES AND REPRESENTATIONS (EXCEPT AS SET FORTH IN SECTION 8), EXPRESS OR IMPLIED, INCLUDING: (A) THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; AND (B) ANY WARRANTY WITH RESPECT TO THE QUALITY, ACCURACY, CURRENCY OR COMPLETENESS OF THE SERVICES PROVIDED UNDER THIS AGREEMENT, OR THAT USE OF SUCH THE SERVICES WILL BE, ACCURATE, ERROR-FREE, UNINTERRUPTED, FREE FROM OTHER FAILURES OR WILL MEET CUSTOMER’S REQUIREMENTS. CUSTOMER IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO OR THEFT OF THE HARDWARE WHILE IN CUSTOMER’S CUSTODY OR CONTROL, INCLUDING ANY DAMAGE ARISING FROM DROPS, WATER DAMAGE OR OTHER MISUSE. SUMATRA WILL HAVE NO LIABILITY OR OBLIGATION TO REPAIR OR PROVIDE MAINTENANCE AND SUPPORT IN CONNECTION WITH THE SERVICES FOR ANY ERROR OR DAMAGE ARISING FROM CUSTOMER ACTS (AS DEFINED IN SECTION 8(a)).

11. LIMITATION OF LIABILITY

OTHER THAN WITH RESPECT TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8 OR BREACH OF SECTION 2(b) OR 9: (A) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS OR COST OF COVER, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS OCCASIONED BY OR RESULTING FROM ANY USE OF OR INABILITY TO USE THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT, SUCH AS ANY MALFUNCTION, DEFECT OR FAILURE OF THE SERVICES OR ITS DELIVERY VIA THE INTERNET, EVEN IF SUCH PARTY HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE; AND (B) IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES RECEIVED BY SUMATRA FROM CUSTOMER UNDER THIS AGREEMENT IN THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENTS GIVING RISE TO LIABILITY AROSE.

12. Miscellaneous

a. Independent Contractors. The relationship between Sumatra and Customer established by this Agreement is solely that of independent contractors. Neither party is in any way the partner or agent of the other, nor is either party authorized or empowered to create or assume any obligation of any kind, implied or expressed, on behalf of the other party, without the express prior written consent of such other party.

b. Notice. All notices, demands and other communications (“Notices”) to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and sent to the parties according to the contact information provided below, or such other contact information as either party shall notify the other in accordance with this Section 13(b):

To Sumatra:
Sumatra Solutions, Inc.
Attn: Legal
3800 N. Lamar Blvd., Suite 200
Austin, TX 78756

To Customer:
(As set forth in Order Form)

c. Assignment. Customer may not assign this Agreement or delegate any right or obligation hereunder, by operation of law or otherwise without the prior written consent of Sumatra. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

d. Interpretation. For the purposes of this Agreement: (i) use by Customer includes use by Admin Users and Testers; (ii) the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation;” (iii) the word “or” is not exclusive; and (iv) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted.

e. Entire Agreement. This Agreement contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous or contemporaneous oral or written negotiations or agreements with respect to such subject matter. In the event of any conflict between this Agreement and any Policy, the terms and conditions of this Agreement shall take precedence.

f. Amendment. Sumatra reserves the right to modify this Agreement, at any time in its sole discretion, by posting a change of notice or updated terms on the Sumatra website. IF ANY MODIFICATION IS UNACCEPTABLE TO CUSTOMER, CUSTOMER AGREES THAT CUSTOMER’S SOLE RECOURSE IS TO TERMINATE THIS AGREEMENT. CUSTOMER’S CONTINUED USE OF OR ACCESS TO THE SERVICES FOLLOWING ANY MODIFICATION OF THIS AGREEMENT SHALL CONSTITUTE CONCLUSIVE AND BINDING ACCEPTANCE TO ANY MODIFICATION OR NEW TERMS.

g. Severability. If any provision of this Agreement shall be held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this Agreement.

h. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the United States of America and the State of Texas, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement.

i. Jurisdiction. The parties agree that any action, proceeding, controversy or claim between them arising out of or relating to this Agreement (collectively, an “Action”) shall be brought only in a court of competent jurisdiction in Austin, Texas. Each Party hereby submits to the personal jurisdiction and venue of such courts and waives any objection on the grounds of venue, forum non-conveniens or any similar grounds with respect to any Action.

j. No Waiver. The failure of either party to require strict performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter, nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Any waiver of the provisions of this Agreement, or of any breach or default hereunder, must be set forth in a written instrument signed by the party against which such waiver is to be enforced.

k. Force Majeure. Neither party shall be liable for any failure to perform under this Agreement to the extent due to any act of God, fire, casualty, flood, war, strike, lock out, failure of public utilities, injunction or any act, exercise, assertion or requirement of any governmental authority, epidemic, destruction of production facilities, insurrection or any other cause beyond the reasonable control of the party invoking this provision.

Sumatra Service Level Agreement

This Service Level Agreement applies only to Growth and Enterprise tier customers of the hosted cloud service. This Service Level Agreement does not apply to Free tier or self-hosted customers.

Throughout the term of the Agreement, Sumatra agrees to provide distribution and ongoing support of the Software, in accordance with the terms and conditions contained within this Service Level Agreement (“SLA”).

1. Software Availability
The Service Level Indicator (“SLI”) for availability is the percentage of download requests which do not return an http server error (4XX, 5XX). The objective for this indicator is 99.9%, measured in a calendar month. Any downtime resulting from outages of third party connections or utilities or other reasons beyond Sumatra’s control will be excluded from any such calculation.Customer’s sole and exclusive remedy, and Sumatra’s entire liability, in connection with Software availability shall be that for each period of downtime lasting longer than one hour, Sumatra will credit Customer 5% of monthly subscription Fees for each period of 30 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to Sumatra) recognizes that downtime is taking place, and continues until the availability of the Software is restored. In order to receive downtime credit, Customer must notify Sumatra in writing within 24 hours from the time of downtime, and failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of subscription Fees in any one (1) calendar month in any event. Sumatra will only apply a credit for any particular month at the time Customer makes a payment to Sumatra pursuant to a Services Order after the Effective Date.

2. Software Support
Sumatra will provide phone, Slack, and email support for issues related to the performance of the Software. Sumatra will provide Support Services honestly and diligently at a professional standard of skill, care and diligence and in accordance with all relevant industry professional standards.

Sumatra’s standard business hours are:

• 8:30 AM – 5:30 PM CT Monday through Friday, excluding holidays observed by Sumatra.

Sumatra agrees to provide Support Services at the following service levels:

• Slack Support: 8-hour response during Standard Business Hours

• Email Support: 24-hour response during Standard Business Hours

• Non-Emergency Phone Support: Standard Business Hours

• Emergency Phone Support: 24/7

For the purposes of this SLA, an “Emergency” is defined as a time-critical incident in which there is a Customer-facing service outage, there is or may be Customer data loss, or confidentiality or privacy is or may be breached.

3. Software Maintenance
Sumatra will provide Customer with access to all Software upgrades & enhancements, error correction & fixes, and Documentation updates. Sumatra will undertake to confirm any reported errors promptly after receipt of written notice from Customer and will use commercially reasonable efforts to correct confirmed errors promptly after making such confirmation.

4. Products and Services Not Covered
Support Services do not cover customized expansion of the Software or enhanced functionality. Unless specifically agreed to in writing, this SLA shall not cover: (i) Support Services for any hardware or software not purchased from Sumatra that is used with or attached to the Software in a manner that is not authorized by Sumatra or the Documentation; (ii) Support Services for any modifications to the Software made by the Customer or by a third party not specifically authorized by Sumatra or the Documentation to undertake those modifications, including customizations; and (iii) Support Services, training, and implementation services beyond the terms specified in the Agreement or any applicable Services Orders or Documentation.