Badged Terms of Use

This Badged Terms of Use (this “Agreement”) contains the terms and conditions that govern your access to and use of the Badged Services (as defined below) and is an agreement between Badged Inc. (“Badged,” “we,” “us,” or “our”) and you or the entity you represent (“you” or “your”). This Agreement takes effect when you click the “I Accept” button or check box presented with this Agreement or, if earlier, when you use any of the Badged Services (the “Effective Date”). You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this Agreement for an entity, such as the company you work for, then you represent to us that you have legal authority to bind that entity. Please see Section 15 (Definitions) for definitions of certain initially capitalized terms used in this Agreement.

1 USE OF THE BADGED SERVICES.

1.1 Generally. We grant you the rights to access and use the Badged Services solely in accordance with this Agreement. You must at all times comply with the terms of this Agreement and all laws, rules and regulations applicable to your use of the Badged Services.

1.2 Your Account. To access the Badged Services, you must have a Badged account associated with a valid e-mail address and we may require a valid form of payment. Unless otherwise explicitly permitted, you will only create one account per e-mail address.

1.3 Service Limits. By using the Badged Services, you acknowledge that Badged is not a party to your interactions and transactions through the Badged Platform, Badged does not control the User Content, and Badged makes no representation with respect to User Content or the products or services offered by users of Badged Services.

1.4 Third-Party Content. Third-Party Content may be used by you at your election. Third-Party Content is governed by this Agreement and, if applicable, separate terms and conditions accompanying such Third-Party Content, which terms and conditions may include separate fees and charges.

1.5 Availability. We use commercially reasonable efforts to make the Badged Services available 100% of the time, except for updates and planned maintenance, but there is no guarantee of availability.

1.6 Teams. Badged Services provide you the ability to form relationships with other users, your “Team”. You agree not to send unsolicited invitations to others to join your Team. By inviting or otherwise allowing another user to your Team, you agree to associate their User Content with your organization within the Badged Services. You acknowledge that Badged does not control your Team’s User Content, and you are responsible to monitor and report any User Content associated with your organization that is objectionable or in violation of this Agreement.

2 CHANGES.

2.1 To the Badged Services. We may change or discontinue any or all Badged Services or change or remove functionality of any or all Badged Services from time to time. We will notify you of any material change to or discontinuation of the Badged Services.

3 SECURITY AND DATA PRIVACY.

3.1 Badged Security. Without limiting Section 10 (Disclaimers) or your obligations under Section 4.4 (Your Security and Backup), we implement reasonable measures designed to help you secure your User Content against accidental or unlawful loss, access or disclosure.

3.2 Data Privacy. You consent to the storage of your User Content in, and transfer of your User Content into, the Badged Platform. You consent to us sharing your User Content and Service Analytics, excluding your Restricted Access User Content, with anyone, including Internet search engines and other marketing venues outside of the Badged Platform. By initiating or responding to communications from another Badged user, you consent to us sharing your Restricted Access User Content with that Badged user and others in the organization they represent. We will not otherwise access or use your Restricted Access User Content except as necessary to maintain or provide the Badged Services, or as necessary to comply with the law or a binding order of a governmental body. We will not disclose Your Account Information to any government or third party, except as necessary to comply with the law or a binding order of a governmental body. Unless it would violate the law or a binding order of a governmental body, we will give you notice of any legal requirement or order referred to in this Section 3.2. We will only use your Account Information in accordance with this Agreement, and you consent to such usage.

4 YOUR RESPONSIBILITIES.

4.1 Your Accounts. Except to the extent caused by our breach of this Agreement, (a) you are responsible for all activities that occur under your account, regardless of whether the activities are authorized by you or undertaken by you, your employees or a third party (including your contractors, agents or End Users), and (b) we and our affiliates are not responsible for unauthorized access to your account.

4.2 Your User Content. You are solely responsible for the development, content, operation, maintenance, and use of your User Content. You will ensure that your User Content and your and End Users’ use of any User Content or the Badged Services will not:

(a) be for other than facilitating legitimate service provider relationships;

(b) violate any of the Policies or any applicable law;

(c) violate, infringe or misappropriate any right of Badged or any third party, including without limitation any patent, trademark, trade secret, copyright, right of publicity, or other intellectual property or proprietary right of any other person or entity;

(d) encourage, promote, facilitate or instruct others to use, the Badged Services or Badged Site for any illegal, harmful, fraudulent, infringing or offensive use, or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful, fraudulent, infringing or offensive;

(e) include any activities that may be harmful to others, our operations or reputation, including disseminating, promoting or facilitating pornography, offering or disseminating fraudulent goods, services, schemes, or promotions, make-money-fast schemes, ponzi and pyramid schemes, phishing, or pharming;

(f) include content that is defamatory, obscene, abusive, invasive of privacy, or otherwise objectionable, including content that constitutes pornography or sex;

(g) include content or other computer technology that may damage, interfere with, surreptitiously intercept, or expropriate any system, program, or data, including viruses, Trojan horses, worms, time bombs, or cancelbots.

(h) impersonate any person or entity, falsify Account Information, misrepresent a relationship with any person or entity, or otherwise attempt to mislead others;

(i) use Badged Services in any way that constitutes unsolicited or unauthorized advertising or promotional material or any junk mail, spam, or chain letters;

(j) except for Account Information, include personally identifiable information, including without limit “cardholder data” as defined by the PCI Security Standards Council, or “electronic protected health information” (e-PHI) as protected under the Health Insurance Portability and Accountability Act of 1996 (HIPAA).

4.3 No Abuse. You agree not to:

(a) use the Badged Site and Content other than for their intended functions and not for unlawful or unauthorized purposes;

(b) directly or indirectly use, reproduce, duplicate or copy, publicly display, transmit, republish, sell or exploit any portion of the Badged Site or the Badged Services other than as permitted herein or with the express written permission of Badged;

(c) obtain or attempt to obtain any Content or information through any means not purposely made available through the Badged Services or with the express written permission of Badged;

(d) access or use Badged Services without permission, including attempting to probe, scan, or test the vulnerability of Badged Services or to breach any security or authentication measures used by Badged Services. You may not reverse look-up, trace or seek to trace any information on any other user of the Badged Services, or any other customer of Badged, including any Badged account not owned by you, to its source, or exploit the Badged Services or any service or information made available or offered by or through the Badged Services, in any way where the purpose is to reveal any information, including but not limited to personal identification or information other than your own information, except as expressly authorized by Badged and provided for by the Badged Services;

(e) monitor Badged Services data or traffic without permission;

(f) inundate a user, Badged Service, or network with communications requests so the target either cannot respond to legitimate traffic or responds so slowly that it becomes ineffective, or interfere with the proper functioning of any System, including any deliberate attempt to overload a system by mail bombing, news bombing, broadcast attacks, or flooding techniques;

(g) knowingly provide or submit false or misleading information;

(h) knowingly allow any member of your Team to do any of the foregoing.

4.4 Your Security and Backup. You are responsible for properly configuring and using the Badged Services and otherwise taking appropriate action to secure, protect and backup your accounts and your User Content in a manner that will provide appropriate security and protection, which might include use of encryption to protect your User Content from unauthorized access and routinely archiving your User Content.

4.5 Log-In Credentials. Badged log-in credentials are for your internal use only and you will not sell, transfer or sublicense them to any other entity or person.

4.6 End Users. You will be deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to this Agreement, your User Content or use of the Badged Services. You are responsible for End Users’ use of your User Content and the Badged Services. You will ensure that all End Users comply with your obligations under this Agreement and that the terms of your agreement with each End User are consistent with this Agreement. If you become aware of any violation of your obligations under this Agreement caused by an End User, you will immediately suspend access to your User Content and the Badged Services by such End User.

5 FEES AND PAYMENT.

5.1 Service Fees. We calculate and bill fees and charges monthly, or as otherwise negotiated under a written agreement. All amounts payable by you under this Agreement will be paid to us without setoff or counterclaim, and without any deduction or withholding. Fees and charges for any new Service or new feature of a Service will be effective when we post updated fees and charges on the Badged Site, unless we expressly state otherwise in a notice. We may increase or add new fees and charges for any existing Badged Services you are using by giving you at least 30 days’ prior notice. We may elect to charge you interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments.

5.2 Taxes. Each party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions thereto) that are imposed on that party upon or with respect to the transactions and payments under this Agreement. All fees payable by you are exclusive of Indirect Taxes. We may charge and you will pay applicable Indirect Taxes that we are legally obligated or authorized to collect from you. You will provide such information to us as reasonably required to determine whether we are obligated to collect Indirect Taxes from you. We will not collect, and you will not pay, any Indirect Tax for which you furnish us a properly completed exemption certificate or a direct payment permit certificate for which we may claim an available exemption from such Indirect Tax. All payments made by you to us under this Agreement will be made free and clear of any deduction or withholding, as may be required by law. If any such deduction or withholding (including but not limited to cross-border withholding taxes) is required on any payment, you will pay such additional amounts as are necessary so that the net amount received by us is equal to the amount then due and payable under this Agreement. We will provide you with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this Agreement.

6 OUR MONITORING AND ENFORCEMENT.

6.1 Generally. We may suspend your or any End User’s right to access or use any portion or all of the Badged Services immediately upon notice to you if we determine in our sole discretion:

(a) your or an End User’s use of the Badged Services (i) poses a security risk to the Badged Services or any third party, (ii) could adversely impact our systems, the Badged Services or the systems or Content of any other Badged customer, (iii) could subject us, our affiliates, or any third party to liability, (iv) could be fraudulent, or (v) is inconsistent with the intended use of the Badged Services;

(b) you are, or any End User is, in breach of this Agreement;

(d) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.

6.2 Effect of Suspension. If we suspend your right to access or use any portion or all of the Badged Services:

(a) you remain responsible for all fees and charges you incur during the period of suspension; and

(b) you will not be entitled to any service credits for any period of suspension.

6.3 We reserve the right, but do not assume the obligation, to investigate any violation of this Agreement or misuse of the Badged Services or Badged Site. We may:

(a) investigate violations of this Agreement, a Policy or misuse of the Badged Services or Badged Site; or

(b) remove, disable access to, or modify any content or resource that violates this Agreement, a Policy or any other agreement we have with you for use of the Badged Services or the Badged Site.

(c) We may report any activity that we suspect violates any law or regulation to appropriate law enforcement officials, regulators, or other appropriate third parties. Our reporting may include disclosing appropriate customer information. We also may cooperate with appropriate law enforcement agencies, regulators, or other appropriate third parties to help with the investigation and prosecution of illegal conduct by providing network and systems information related to alleged violations of this Agreement or a Policy.

6.4 Reporting of Violations. If you become aware of or suspect any violation of this Agreement or any of our Policies, you will immediately notify us and provide us with assistance, as requested, to stop or remedy the violation. To report any violation of this Agreement or our Policies, please e-mail legal@badged.io with information regarding the violation.

7 TERM; TERMINATION.

7.1 Term. The term of this Agreement will commence on the Effective Date and will remain in effect until terminated under this Section 7. Any notice of termination of this Agreement by either party to the other must include a Termination Date that complies with the notice periods in Section 7.2 (Termination).

7.2 Termination.

(a) Termination for Convenience. You may terminate this Agreement for any reason by providing us notice and closing your account for all Badged Services for which we provide an account closing mechanism. We may terminate this Agreement for any reason by providing you at least 30 days’ advance notice.

(b) Termination for Cause.

i By Either Party. Either party may terminate this Agreement for cause if the other party is in material breach of this Agreement and the material breach remains uncured for a period of 30 days from receipt of notice by the other party. No later than the Termination Date, you will close your account.

ii By Us. We may also terminate this Agreement immediately upon notice to you (1) for cause if we have the right to suspend under Section 6 (Our Monitoring and Enforcement), (2) if our relationship with a third-party partner who provides software or other technology we use to provide the Badged Services expires, terminates or requires us to change the way we provide the software or other technology as part of the Badged Services, or (3) in order to comply with the law or requests of governmental entities.

7.3 Effects of Termination.

(a) Generally. Upon the Termination Date:

i except as provided in Section 7.3(b) (Post-Termination), all your rights under this Agreement immediately terminate;

ii you remain responsible for all fees and charges you have incurred through the Termination Date and are responsible for any fees and charges you incur during the post-termination period described in Section 7.3(b) (Post-Termination);

iii you will immediately return or, if instructed by us, destroy all Badged Content in your possession; and

iv Sections 4.1 (Your Accounts), 5 (Fees and Payment), 7.3 (Effects of Termination), 8 (Proprietary Rights) other than Section 8.5 (Badged Services License), 9 (Indemnification), 10 (Disclaimers), 11 (Limitations of Liability), 13 (Miscellaneous) and 15 (Definitions) will continue to apply in accordance with their terms.

(b) Post-Termination. Unless we terminate your use of the Badged Services pursuant to Section 7.2(b) (Termination for Cause), during the 30 days following the Termination Date:

i we will not take action to remove from the Badged systems any of your User Content as a result of the termination; and

ii we will allow you to retrieve your User Content from the Badged Services only if you have paid all amounts due under this Agreement.

For any use of the Badged Services after the Termination Date, the terms of this Agreement will apply and you will pay the applicable fees at the rates under Section 5 (Fees and Payment).

8 PROPRIETARY RIGHTS.

8.1 Your Restricted Access User Content. Except as provided in this Section 8, we obtain no rights under this Agreement from you (or your licensors) to your Restricted Access User Content. You consent to our use of your Restricted Access User Content to provide the Badged Services to you and any End Users, and to provide Service Analytics to anyone.

8.2 Your User Content. Excluding your Restricted Access User Content, you grant to Badged a worldwide, non-exclusive, perpetual, royalty-free, sublicensible, transferable, fully paid right to (and to allow others acting on its behalf to) (a) use, edit, modify, prepare derivative works of, reproduce, host, display, stream, transmit, playback, transcode, copy, feature, market, sell, distribute and otherwise fully exploit your User Content in connection with (i) the Badged Services, (ii) Badged’s (and its successors’ and assigns’) businesses, (iii) promoting, marketing, and redistributing part or all of the Badged Site (and derivative works thereof) or the Badged Services in any media formats and through any media channels (including, without limitation, third-party websites); (b) take whatever other action is required to perform and market the Badged Services; and (c) allow its users to stream, transmit, playback, download, display, feature, distribute, collect, and otherwise use the User Content, subject to confidentiality obligations of the form provided in these Terms of Service.

8.3 Adequate Rights. You represent and warrant to us that: (a) you or your licensors own all right, title, and interest in and to your User Content and Suggestions; (b) you have all rights in your User Content and Suggestions necessary to grant the rights contemplated by this Agreement; and (c) none of your User Content or End Users’ use of your User Content or the Badged Services will violate the terms of this Agreement.

8.4 Badged Services Ownership. We or our licensors own all right, title, and interest in and to the Badged Services and all improvements, enhancements and modifications to any of the foregoing, and all related technology and intellectual property rights to each of the foregoing.

8.5 Badged Services License. Subject to Section 8.4 (Badged Services Ownership), we grant you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to do the following: (a) access and use the Badged Services solely in accordance with this Agreement; and (b) copy and use the Badged Content solely in connection with your permitted use of the Badged Services.

8.6 License Restrictions. Except as provided in Section 8.5 (Badged Services License) above, you obtain no rights under this Agreement from us, our affiliates or our licensors to the Badged Services, including any related intellectual property rights. Some Badged Content and Third-Party Content may be provided to you under a separate license, such as the Apache License, Version 2.0, or other open source license. In the event of a conflict between this Agreement and any separate license, the separate license will prevail with respect to the Badged Content or Third-Party Content that is the subject of such separate license. Neither you nor any End User will use the Badged Services in any manner or for any purpose other than as expressly permitted by this Agreement. Neither you nor any End User will, or will attempt to (a) modify, distribute, alter, tamper with, repair, or otherwise create derivative works of any Content included in the Badged Services (except to the extent Content included in the Badged Services is provided to you under a separate license that expressly permits the creation of derivative works), (b) reverse engineer, disassemble, or decompile the Badged Services or apply any other process or procedure to derive the source code of any software included in the Badged Services (except to the extent applicable law doesn’t allow this restriction), (c) access or use the Badged Services in a way intended to avoid incurring fees or exceeding usage limits or quotas, or (d) resell or sublicense the Badged Services. During and after the Term, you will not assert, nor will you authorize, assist, or encourage any third party to assert, any intellectual property infringement claim regarding any Badged Services you have used. You will not misrepresent or embellish the relationship between us and you.

8.7 Trademark Use. You may, during the term of this Agreement, use Badged Marks in your paper marketing material or website to accurately communicate your relationship with us, provided that all such use is in strict conformance with Badged’s trademark usage policy and provided further that all goodwill related to such use inures solely to the benefit of Badged. Badged Marks may not otherwise be copied or imitated, in whole or in part, without the prior written consent of Badged. You may not imitate the trade dress or “look and feel” of any of our web sites or pages contained in any of our web sites, including without limitation, the branding, color combinations, fonts, graphic designs, product icons or other elements associated with us.

8.8 Suggestions. If you provide any Suggestions to us or our affiliates, we and our affiliates will be entitled to use the Suggestions without restriction. You hereby irrevocably assign to us all right, title, and interest in and to the Suggestions and agree to provide us any assistance we require to document, perfect, and maintain our rights in the Suggestions.

9 INDEMNIFICATION.

9.1 General. Each party will defend, indemnify, and hold harmless the other party, its affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any Losses arising out of or relating to any third-party claim concerning breach of this Agreement or violation of applicable law by the party, an End User or the party’s Content. You will also defend, indemnify, and hold harmless us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any Losses arising out of or relating to any third-party claim concerning: (a) your or any End Users’ use of the Badged Services (including any activities under your Badged account and use by your employees and personnel); (b) your User Content or the combination of your User Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by your User Content, or by the use, development, design, production, advertising or marketing of your User Content; or (c) a dispute between you and any End User.

9.2 Process. The obligations of each party (the “Indemnifying Party”) to indemnify, defend and hold harmless the other party (the “Indemnified Party”) from and against any Claim under this Section 9 (Indemnification) are contingent on the Indemnified Party providing the Indemnifying Party with: (a) prompt written notice of any Claim for which indemnification may be sought, provided, however, that any delay in notification will not relieve the Indemnifying Party of its obligations hereunder except to the extent that the delay impairs its ability to defend; (b) sole control over the defense and settlement of any such Claim; provided, however, that the Indemnifying Party will not settle such Claim without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld; and (c) reasonable information and assistance, at the Indemnifying Party’s request and expense, in connection with any such Claim; provided, however, that the Indemnified Party will have the right to participate fully, at its own expense and with counsel of its own choosing, in the defense of such Claim.

10 DISCLAIMERS.

THE BADGED SERVICES ARE PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, WE AND OUR AFFILIATES AND LICENSORS (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE OFFERINGS OR THE THIRD-PARTY CONTENT, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE SERVICE OFFERINGS OR THIRD-PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, AND (IV) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.

11 LIMITATIONS OF LIABILITY.

WE AND OUR AFFILIATES AND LICENSORS WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS, OPPORTUNITIES, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE BADGED SERVICES, INCLUDING WITHOUT LIMITATION AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS, (II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, OR, (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE BADGED SERVICES FOR ANY REASON; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR USER CONTENT OR OTHER DATA. IN ANY CASE, OUR AND OUR AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 12 MONTHS BEFORE THE LIABILITY AROSE.

12 MODIFICATIONS TO THE AGREEMENT.

We may modify this Agreement (including any Policies) at any time by posting a revised version on the Badged Site or by otherwise notifying you in accordance with Section 13.9 (Notice). The modified terms will become effective upon posting or, if we notify you by e-mail, as stated in the e-mail message. By continuing to use the Badged Services after the effective date of any modifications to this Agreement, you agree to be bound by the modified terms. It is your responsibility to check the Badged Site regularly for modifications to this Agreement. We last modified this Agreement on the date listed at the end of this Agreement.

13 MISCELLANEOUS.

13.1 Assignment. You will not assign or otherwise transfer this Agreement or any of your rights and obligations under this Agreement, without our prior written consent. Badged may assign or otherwise transfer this Agreement or any of its rights or obligations under this Agreement to athird party, provided that such third party assumes the applicable rights or obligations being assigned or transferred by Badged. Any assignment or transfer in violation of this Section 13.1 will be void. Subject to the foregoing, this Agreement will be binding upon, and inure to the benefit of the parties and their respective permitted successors and assigns.

13.2 Entire Agreement. This Agreement incorporates the Policies by reference and is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this Agreement (but does not supersede prior commitments to purchase Badged Services). We will not be bound by, and specifically object to, any term, condition or other provision that is different from or in addition to the provisions of this Agreement (whether or not it would materially alter this Agreement) including for example, any term, condition or other provision (a) submitted by you in any order, receipt, acceptance, confirmation, correspondence or other document, (b) related to any online registration, response to any Request for Bid, Request for Proposal, Request for Information, or other questionnaire, or (c) related to any invoicing process that you submit or require us to complete. If the terms of this document are inconsistent with the terms contained in any Policy, the terms contained in this document will control.

13.3 Force Majeure. We and our affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond our reasonable control, including without limitation acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, cyberterrorism, prolonged internet outage, or war.

13.4 Governing Law. The laws of the State of Colorado, without reference to conflict of law rules, govern this Agreement and any dispute of any sort that might arise between you and us. The United Nations Convention for the International Sale of Goods does not apply to this Agreement. You agree and consent to the exclusive jurisdiction of the state or federal courts located in Denver, Colorado.

13.5 Trade Compliance. In connection with this Agreement, each party will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations, including all such laws and regulations that apply to a U.S. company, such as the Export Administration Regulations, the International Traffic in Arms Regulations, and economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, you are solely responsible for compliance related to the manner in which you choose to use the Badged Services, including your transfer and processing of your User Content and the provision of your User Content to End Users. You represent and warrant that you and your financial institutions, or any party that owns or controls you or your financial institutions, are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g., the Specially Designated Nationals List and Foreign Sanctions Evaders List of the U.S. Department of Treasury, and the Entity List of the U.S. Department of Commerce), the European Union or its Member States, or other applicable government authority.

13.6 Independent Contractors; Non-Exclusive Rights. We and you are independent contractors, and this Agreement will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. Both parties reserve the right (a) to develop or have developed for it products, services, concepts, systems, or techniques that are similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the other party, and (b) to assist third party developers or systems integrators who may offer products or services which compete with the other party’s products or services.

13.7 Language. All communications and notices made or given pursuant to this Agreement must be in the English language. If we provide a translation of the English language version of this Agreement, the English language version of the Agreement will control if there is any conflict.

13.8 Confidentiality and Publicity. You may use Badged Confidential Information only in connection with your use of the Badged Services as permitted under this Agreement. You will not disclose Badged Confidential Information during the Term or at any time during the 5-year period following the end of the Term. You will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Badged Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature.

13.9 Notice.

(a) To You. We may provide any notice to you under this Agreement by: (i) posting a notice on the Badged Site; or (ii) sending a message to the e-mail address then associated with your account. Notices we provide by posting on the Badged Site will be effective upon posting and notices we provide by e-mail will be effective when we send the e-mail. It is your responsibility to keep your e-mail address current.

(b) To Us. To give us notice under this Agreement, you must contact Badged as follows: (i) by e-mail to legal@badged.io; or (ii) by letter, first class certified mail, to Badged Inc., PO Box 1166, Golden, CO 80401, attention General Counsel. We may update the address or e-mail address for notices to us by posting an updated Badged Customer Agreement on the Badged Site.

(c) Notices will be deemed delivered upon the earlier of the verification of delivery or two (2) business days after being sent.

13.10 No Third-Party Beneficiaries. Except as expressly set forth in Section 9.1 (Indemnification – General), this Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.

13.11 U.S. Government Rights. The Badged Services are provided to the U.S. Government as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Badged Services. If you are using the Badged Services on behalf of the U.S. Government and these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, you will immediately discontinue your use of the Badged Services. The terms “commercial item” “commercial computer software,” “commercial computer software documentation,” and “technical data” are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.

13.12 No Waivers. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.

13.13 Severability. If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the rest of the Agreement will remain in full force and effect.

14 NOTICE AND PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT

If you believe that your work has been copied in a way that constitutes copyright infringement, please provide our copyright agent the written information specified below. Please note that this procedure is exclusively for notifying Badged that your copyrighted material has been infringed.

· An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;

· A description of the copyrighted work that you claim has been infringed upon;

· A description of where the material that you claim is infringing is located on the Badged Site;

· Your address, telephone number, and e-mail address;

· A statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;

· A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.

The Badged Copyright Agent for notice of claims of copyright infringement can be reached as follows:

Badged Inc.
Attn: General Counsel, Copyright Agent
P.O. Box 1166
Golden, CO 80401
phone: (303) 884-1374
e-mail: legal@badged.io

15 DEFINITIONS.

“Account Information” means information about you that you provide to us in connection with the creation or administration of your Badged account. For example, Account Information includes names, usernames, phone numbers, e-mail addresses and billing information associated with your Badged account.

“API” means an application program interface.

“Badged Confidential Information” means all nonpublic information disclosed by us, our affiliates, business partners or our or their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Badged Confidential Information includes: (a) nonpublic information relating to our or our affiliates or business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that we are obligated to keep confidential; and (c) the nature, content and existence of any discussions or negotiations between you and us or our affiliates. Badged Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement; (ii) can be shown by documentation to have been known to you at the time of your receipt from us; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by you without reference to the Badged Confidential Information.

“Badged Content” means Content we or any of our affiliates make available in connection with the Badged Services or on the Badged Site to allow access to and use of the Badged Services, including APIs; WSDLs; documentation; sample code; software libraries; command line tools; proofs of concept; templates;.and other related technology (including any of the foregoing that are provided by our personnel). Badged Content also includes all Service Analytics and information about you or your organization that we compute or derive or assemble from other sources, and the evidence of verifications we perform on your User Content, such as information regarding your work history, customer satisfaction, certifications, partnerships, specializations, credit quality, and reputation. Badged Content does not include the Third-Party Content.

“Badged Marks” means any trademarks, service marks, service or trade names, logos, and other designations of Badged and its affiliates that we may make available to you in connection with this Agreement.

“Badged Platform” means, collectively, the Badged Services and Badged Site.

“Badged Services” means the products and services provided by us under this Agreement, including without limitation associated APIs, the Badged Content, the Service Analytics, the Badged Marks, but excluding in all events Third-Party Content.

“Badged Site” means http://badged.io (and any successor or related site designated by us), as may be updated by us from time to time.

“Content” means software (including machine images), data, text, audio, video or images.

“End User” means any individual or entity that directly or indirectly through another user: (a) accesses or uses your User Content; or (b) otherwise accesses or uses the Badged Services under your account. The term “End User” includes individuals or entities that are included in your Team, as listed under your organization profile. The term “End User” does not otherwise include individuals or entities when they are accessing or using the Badged Services or any Content under their own Badged account, rather than under your account.

“Indirect Taxes” means applicable taxes and duties, including, without limitation, VAT, Service Tax, GST, excise taxes, sales and transactions taxes, and gross receipts tax.

“Losses” means any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees).

“Policies” means all restrictions described in the Badged Content and on the Badged Site, and any other policy or terms referenced in or incorporated into this Agreement, but does not include whitepapers or other marketing materials referenced on the Badged Site.

“Restricted Access User Content” means User Content you or End Users submit or receive exclusively in the areas of the Badged Site designated as “Messages” or “Documents” or explicitly designated for restricted access by Badged.

“Service Analytics” means anonymized data aggregation, analytics, and reporting on any Content on the Badged Site or external data.

“Suggestions” means all suggested improvements to the Badged Services that you provide to us.

“Team” has that meaning set forth in Section 1.6 (Teams) above.

“Term” means the term of this Agreement as described in Section 7.1 (Term) above.

“Termination Date” means the effective date of termination provided in accordance with Section 7 (Term; Termination) above, in a notice from one party to the other.

“Third-Party Content” means Content made available to you by any third party on the Badged Site or in conjunction with the Badged Services. Third-Party Content does not include User Content.

“User Content” means Content that a user or any End User transfers to us for processing, communicating, storage or hosting by the Badged Services in connection with your Badged account and any computational results that we derive from the foregoing. For example, your User Content includes Content within your organization profile and any associated professional profiles, services, messages, documents, and projects. User Content does not include Account Information.

Last updated June 16, 2017

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