Software License Agreement

This Software License Agreement (“Agreement”) governs your (“Licensee,” “you,” or “your”) use of the Software and Documentation and by signing up to receive, downloading or using the Software and/or executing an Order as further described, you represent that

(1) you have read, understand, and agree to be bound by this Agreement,

(2) you are of legal age to form a binding contract with CheckRed Labs Inc. (“CheckRed,” “we,” “our,” or “us,” and collectively with Licensee, “Parties”), and

(3) you have the authority to enter into this Agreement personally or on behalf of the company or other organization you have named as the user, and to bind that entity to this Agreement. In the event you are agreeing to this Agreement on behalf of a company or organization, “Licensee,” “you,” and “your” will refer to the entity you are representing.

If you do not agree to the terms of this agreement, checkred will not and does not license the software or documentation to you and you must not download, install or use the software or documentation.

1. Definitions
   For purposes of this Agreement, the following terms have the following meanings:

• • “Authorized Users” means solely those individuals authorized by Licensee to use the Software pursuant to the license granted to Licensee under this Agreement.
  • “Documentation” means user manuals, technical manuals, and any other materials provided by CheckRed, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Software.
  • “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
  • “License Fees” means the license fees, including all taxes thereon, paid or required to be paid by Licensee for the license granted under this Agreement.
  • “Order Form” means a quote issued by CheckRed and accepted by Licensee or an order form filled out and submitted by or on behalf of Licensee, and accepted by CheckRed, for Licensee’s purchase of the license for the Software granted under this Agreement.
  • “Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association, or other entity.
  • “Software” means the CheckRed software programs for which Licensee is purchasing a license, as expressly set forth in the Order Form.
  • “Third Party” means any Person other than Licensee or CheckRed.

2. License Grant and Scope
   Subject to and conditioned upon Licensee’s payment of the License Fees and Licensee’s strict compliance with all terms and conditions set forth in this Agreement, CheckRed hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to use, solely by and through its Authorized Users, the Software and Documentation, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 5 or elsewhere in this Agreement. This license grants Licensee the right, exercisable solely by and through your Authorized Users, to:
   • Download, copy, and install in accordance with the Documentation one copy of the Software on the number of computer nodes or clusters specified in the Order Form and for which Licensee has paid the appropriate fees. In addition to the foregoing, Licensee has the right to make one copy of the Software solely for archival purposes and a reasonable number of copies of the Software solely for backup purposes, provided that Licensee shall not, and shall not allow any Person to, install or use any such copy other than if and for so long as any copy installed in accordance with the preceding sentence is inoperable and, provided, further, that Licensee uninstalls and otherwise deletes such inoperable copy(ies). All copies of the Software made by the Licensee:
     • will be the exclusive property of CheckRed;
     • will be subject to the terms and conditions of this Agreement; and
     • must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.
   • Use and run the Software as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation and solely for Licensee’s internal business purposes.
   • Download or otherwise make one copy of the Documentation and use such Documentation, solely in support of its licensed use of the Software in accordance herewith. All copies of the Documentation made by Licensee:
     • will be the exclusive property of CheckRed;
     • will be subject to the terms and conditions of this Agreement; and
     • must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.

3. Open Source Materials
   The Software includes software that, while owned by CheckRed, is provided to Licensee on license terms that are in different from those contained in this Agreement (the “Open Source License(s)“). The Open Source License applicable to such software can be found at https://CheckRed.io/license.html#open_source_license. Licensee is bound by and shall comply with all Open Source Licenses. Any breach by Licensee or the Authorized User of the Open Source Licenses is also a breach of this Agreement.
4. Third-Party Materials
   The Software includes software, content, data, or other materials, including related documentation, that are owned by Persons other than CheckRed and that are provided to Licensee on license terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses“). A list of all materials included in the Software and provided under Third-Party Licenses can be found at https://CheckRed.io/license.html#third_party_licenses and the applicable Third-Party Licenses are accessible via links therefrom. Licensee is bound by and shall comply with all Third-Party Licenses. Any breach by Licensee or the Authorized User of any Third-Party License is also a breach of this Agreement.
5. Use Restrictions
   All rights not specifically granted herein are retained by CheckRed. Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:
   • use (including make any copies of) the Software or Documentation beyond the scope of the license granted under Section 2;
   • provide any other Person, including any subcontractor, independent contractor, affiliate, or service provider of Licensee, with access to or use of the Software or Documentation;
   • modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;
   • combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs, except into your own internal applications as specifically provided in the Documentation;
   • reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;
   • remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;
   • except as expressly set forth in Section 2(a) and Section 2(c), copy the Software or Documentation, in whole or in part;
   • rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud, or other technology or service;
   • use the Software or Documentation in violation of any law, regulation, or rule; or
   • use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to CheckRed’s commercial disadvantage.
6. Responsibility for Use of Software
   Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement.

7. Compliance Measures
   • On CheckRed’s written request, Licensee shall conduct a review of its and its Authorized Users use the Software and certify to CheckRed in a written instrument signed by an officer of Licensee that it is in full compliance with this Agreement or, if Licensee discovers any noncompliance:
     • Licensee shall immediately remedy such noncompliance and provide CheckRed with written notice thereof. Licensee shall provide CheckRed with all access and assistance as CheckRed requests to further evaluate and remedy such noncompliance.
     • If Licensee’s use of the Software exceeds the scope, number of copies or Authorized Users permitted under the license, CheckRed shall have the remedies set forth in Section 7(c).
   • During the Term, CheckRed may, in CheckRed’s sole discretion, audit Licensee’s use of the Software to ensure Licensee’s compliance with this Agreement, provided that
     (i) any such audit shall be conducted on not less than seven (7) days’ prior notice to Licensee, and
     (ii) no more than one audit may be conducted in any twelve (12) month period except for good cause shown. CheckRed also may, in its sole discretion, audit Licensee’s systems within six (6) months after the end of the Term to ensure Licensee has ceased use of the Software and removed the all copies of the Software from such systems as required hereunder. The Licensee shall fully cooperate with CheckRed’s personnel conducting such audits and provide all reasonable access requested by the CheckRed to records, systems, equipment, information, and personnel, including machine IDs, serial numbers, and related information. CheckRed shall only examine information directly related to the Licensee’s use of the Software. CheckRed may conduct audits only during Licensee’s normal business hours and in a manner that does not unreasonably interfere with the Licensee’s business operations.
   • If the audit determines that the Licensee’s use of the Software exceeds or exceeded the use permitted by this Agreement then:
     • Licensee shall, within ten (10) days following the date of such determination by Licensee or CheckRed’s written notification thereof, pay to CheckRed the retroactive License Fees for such excess use and, unless CheckRed terminates this Agreement pursuant to Section 7.1(c)
       (iii), obtain and pay for a valid license to bring Licensee’s use into compliance with this Agreement. In determining the Licensee Fee payable pursuant to the foregoing, (x) unless Licensee can demonstrate otherwise by documentary evidence, all excess use of the Software shall be deemed to have commenced on the commencement date of this Agreement or, if later, the completion date of any audit previously conducted by CheckRed hereunder, and continued uninterrupted thereafter, and (y) the rates for such licenses shall be determined without regard to any discount to which Licensee may have been entitled had such use been properly licensed prior to its commencement (or deemed commencement).
     • If the use exceeds or exceeded the use permitted by this Agreement by more than twenty percent (20%), Licensee shall also pay to CheckRed, within ten (10) days following the date of CheckRed’s written request therefor, CheckRed’s reasonable costs incurred in conducting the audit.
     • If the use exceeds or exceeded the use permitted by this Agreement by more than fifty percent (50%), CheckRed shall also have the right to terminate this Agreement and the license granted hereunder, effective immediately upon written notice to Licensee.

CheckRed’s remedies set forth in this Section 7(c) are cumulative and are in addition to, and not in lieu of, all other remedies the CheckRed may have at law or in equity, whether under this Agreement or otherwise.

8. Maintenance and Support
   CheckRed shall provide maintenance and support for the Software during the Term in accordance with the level of support purchased by Licensee.
9. Collection and Use of Information
   • Licensee acknowledges that CheckRed may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Software and about equipment on which the Software is installed or through which it otherwise is accessed and used.
   • Licensee agrees that CheckRed may use such information for any purpose related to any use of the Software by Licensee or on your equipment, including but not limited to:
     • improving the performance of the Software or developing updates; and
     • verifying your compliance with the terms of this Agreement and enforcing CheckRed’s rights, including all Intellectual Property Rights in and to the Software.

10. Intellectual Property Rights
    Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto, other than to use the same in accordance with the license granted and subject to all terms, conditions, and restrictions under this Agreement. CheckRed and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software, except as expressly granted to the Licensee in this Agreement. Licensee shall safeguard all Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access. Licensee shall promptly notify CheckRed if Licensee becomes aware of any infringement of CheckRed’s Intellectual Property Rights in the Software and fully cooperate with CheckRed, at CheckRed’s sole expense, in any legal action taken by CheckRed to enforce its Intellectual Property Rights.
11. Payment
    All License Fees and Support Fees are payable in advance in the manner set forth in the Order Form and are non-refundable, except as may be expressly set forth herein. Any renewal of the license or maintenance and support services hereunder shall not be effective until the fees for such renewal have been paid in full.
12. Automatic Renewal
    Unless you notify Checkred 90 days before the end of the applicable subscription period that you want to cancel a service or upgrade, your subscription will automatically renew and you authorize us to collect the then-applicable annual or monthly subscription fee (as well as any taxes) using any credit card or other payment mechanism we have on record for you. Subscriptions can be canceled at any time.
13. Term and Termination
    • This Agreement and the license granted hereunder shall remain in effect for the term set forth on the Order Form or until earlier terminated as set forth herein (the “Term“).
    • Licensee may terminate this Agreement by ceasing to use and destroying all copies of the Software and Documentation.
    • CheckRed may terminate this Agreement, effective upon written notice to Licensee, if Licensee, materially breaches this Agreement and such breach:
      (i) is incapable of cure; or
      (ii) being capable of cure, remains uncured fifteen (15) days after CheckRed provides written notice thereof.
    • CheckRed may terminate this Agreement, effective immediately, if Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property.
    • Upon termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the Software and Documentation. No expiration or termination shall affect Licensee’s obligation to pay all Licensee Fees and Support Fees that may have become due before such expiration or termination, or entitle Licensee to any refund, in each case except as set forth in Section 13.1(c)(ii). The provisions set forth in the following sections, and any other right or obligation of the Parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 10, Section 14-17 and this Section 12(e).
14. Limited Warranties, Exclusive Remedy, and Disclaimer/Warranty Disclaimer
    • Solely with respect to Software for which CheckRed receives a License Fee, CheckRed warrants that, for a period of thirty (30) days following the purchase date set forth on the Order Form:
      • any media on which the Software is provided will be free of material damage and defects in materials and workmanship under normal use; and
      • the Software will substantially contain the functionality described in the Documentation, and when properly installed on a computer meeting the specifications set forth in, and operated in accordance with, the Documentation, will substantially perform in accordance therewith.
    • The warranties set forth in Section 13(a)(i) and Section 13(a)(ii) will not apply and will become null and void if Licensee breaches any material provision of this Agreement, or if Licensee, any Authorized User, or any other Person provided access to the Software by Licensee or any Authorized User, whether or not in violation of this Agreement:
      • installs or uses the Software on or in connection with any hardware or software not specified in the Documentation or expressly authorized by CheckRed in writing;
      • modifies or damages the Software, or the media on which it is provided, including abnormal physical or electrical stress; or
      • misuses the Software, including any use of the Software other than as specified in the Documentation or expressly authorized by CheckRed in writing.
    • If, during the period specified in Section 13(a), any Software covered by the warranty set forth in such Section fails to perform substantially in accordance with the Documentation, and such failure is not excluded from warranty pursuant to the Section 13(b), CheckRed will, subject to Licensee’s promptly notifying CheckRed in writing of such failure, at its sole option, either:
      • repair or replace the Software, provided that Licensee provides CheckRed with all information CheckRed reasonably requests to resolve the reported failure, including sufficient information to enable the CheckRed to recreate such failure; or
      • refund the License Fees paid for such Software, subject to Licensee’s ceasing all use of and, if requested by CheckRed, returning to CheckRed all copies of the Software.

If CheckRed repairs or replaces the Software, the warranty will continue to run from the initial date specified on the Order Form, and not from Licensee’s receipt of the repair or replacement. The remedies set forth in this Section 13(c) are Licensee’s sole remedies and CheckRed’s sole liability under this Agreement.

• Except for the limited warranty set forth in section 13(a), the software and documentation are provided to licensee “as is” and with all faults and defects without warranty of any kind. To the maximum extent permitted under applicable law, checkred, on its own behalf and on behalf of its affiliates and its and their respective checkreds and service providers, expressly disclaims all warranties, whether express, implied, statutory, or otherwise, with respect to the software and documentation, including all implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage, or trade practice. Without limitation to the foregoing, checkred provides no warranty or undertaking, and makes no representation of any kind that the licensed software will meet the licensee’s requirements, achieve any intended results, be compatible, or work with any other software, applications, systems, or services, operate without interruption, meet any performance or reliability standards or be error free, or that any errors or defects can or will be corrected.

15. Limitations of Liability
    • In no event will checkred’s total, aggregate liability to you or to any third party arising out of or related to this agreement or your use (or inability to use) any part of the software or documentaiton exceed the fees paid for the software for a three (3) month period.
    • In no event will checkred be liable to you or to any third party for any loss of profits, loss of use, loss of revenue, loss of goodwill, interruption of business, loss of data, or any indirect, special, incidental, exemplary, punitive or consequential damages of any kind arising out of, or in connection with this agreement or your use (or inability to use) any part of the software or documentation, whether in contract, tort, strict liability or otherwise, even if we have been advised or are otherwise aware of the possibility of such damages.
    • This section (limitation of liability) will be given full effect even if any remedy specified in these terms is deemed to have failed of its essential purpose.
16. Anti-Corruption and Export
    Licensee will, and will cause its employees, consultants, and agents to, comply with the US Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010. Licensee agrees to comply with all applicable laws administered by the U.S. Commerce Bureau of Industry and Security, U.S. Treasury Office of Foreign Assets Control, or other governmental entity imposing export controls and trade sanctions (“Export Laws”), including designated countries, entities, and persons (“Sanctions Targets”); and agrees not to directly or indirectly export, re-export, or otherwise deliver the Service to a Sanctions Target, or broker, finance, or otherwise facilitate any transaction in violation of any Export Laws. Licensee represents that Licensee is not a Sanctions Target or prohibited from receiving the Service. The Service will be used for non-prohibited, commercial purposes by non-prohibited Users and will not be exported or transferred to China or any Sanctions Target
17. US Government Rights
    The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Licensee is the US Government or any contractor therefor, Licensee shall receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
18. Miscellaneous
    • All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby shall be instituted in the federal courts of the United States of America or the courts of the State of Colorado in each case located in the City and County of Denver, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such legal suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action, or other proceeding brought in any such court.
    • CheckRed will not be responsible or liable to Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning, or Licensee equipment, loss and destruction of property, or any other circumstances or causes beyond CheckRed’s reasonable control.
    • Notices to you will be deemed given upon email to your account administrator. CheckRed may also provide notices to you electronically, including but not limited to through the Site, which shall be deemed given to you upon dispatch including if the last email address you provided to us is invalid, or for any reason that any such notice is not capable of delivery to you. You are responsible for providing us with your most current email address and updating it as applicable. You may give us notice at: CheckRed Labs Inc. 5323 Deer Creek, Boulder, CO 80301. Such notice shall be deemed given when received by CheckRed by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the foregoing address.
    • This Agreement, together with the Order Form, all annexes, schedules, and exhibits attached hereto and all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between Licensee and CheckRed with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
    • Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without CheckRed’s prior written consent, which consent CheckRed may give or withhold in its sole discretion. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section is void. CheckRed may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without your This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
    • This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
    • This Agreement may only be amended, modified, or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    • If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.