Delving Terms of Service

Delving Services Access End User License Agreement

Effective Date: April 1, 2022

This Services Access End User License Agreement (“Agreement”) is a legal agreement between Cosentio, Inc. DBA Delving, which is headquartered at #300 – 1312 Blanshard St., Victoria, BC V8W 2J1 (“Delving”) and you. You are either an entity (“Participant”) who has purchased a subscription to Delving’s hosted solutions for data storage and management (“Services” and as further defined below), or you are an individual employed by a Participant and accessing the Services as the Participant’s Authorized User (defined below). You are referred to herein as “Licensee” or “you.” PLEASE READ THIS AGREEMENT CAREFULLY, BECAUSE IT STATES THE CONDITIONS UNDER WHICH YOU ARE BEING ALLOWED TO ACCESS THE SERVICES, AND IT AFFECTS YOUR LEGAL RIGHTS. BY CLICKING THE “I ACCEPT” BUTTON WHEN CREATING AN ACCOUNT, YOU HAVE EXPRESSED YOUR AFFIRMATIVE CONSENT TO THIS AGREEMENT.

1. DEFINITIONS.

1.1 Authorized User means any employee, agent, independent contractor, or representative of a Participant who uses the Services (defined below) under Participant’s control and supervision pursuant to Participant’s License (defined in section 2.1 below) in this Agreement for the term of Participant’s Subscription (defined below), and for whose individual actions in using the Services Participant is responsible and liable.

1.2 Documentation means any user-manual or technical documentation and specifications that Delving provides with the Services (defined below).

1.3 Intellectual Property means any created or developed technology, invention, process, form of matter, device, machine, software, source or object code, document, written work, drawing, graphical work, created work in an electronic medium, proprietary information, or any other form of creativity which takes form in a tangible medium of expression and is protected and enforceable under any Intellectual Property Rights recognized in any jurisdiction throughout the world.

1.4 Intellectual Property Rights means all rights of ownership or enforcement in Intellectual Property now held or hereafter created or acquired by a party, regardless of whether arising under the laws of the United States, under the laws of any other jurisdiction worldwide, or under any international treaty for (i) all classes or types of patents, including, without limitation, utility models, utility patents and design patents, patent applications and disclosures, and any extensions; (ii) all copyrights, all sub-rights of copyright, and all moral rights in both published and unpublished works, and all corresponding registrations and applications therefor; (iii) all trademarks and service marks and trade names, and all corresponding registrations and applications therefor; and (iv) all know-how, trade secrets, and confidential, technical and non-technical information.

1.5 Services means all services provided by Delving under this Agreement, including Delving’s Software offerings, any advisory services, and any support services for the Software.

1.6 Software means any and all software products and tools offered by Delving as part of its Services, as well as any Updates (defined below), add-ins, or other executables made available. This definition excludes any Third Party Software and Open Source Software (each as defined in Section 2.4).

1.7 Subscription means the payment terms, scope, and duration of a Participant’s access to the Services under the Delving Terms of Service Agreement. Your access to the Services proceeds pursuant to a valid Subscription.

1.8 Update means an update of the Software that Delving makes generally available at no additional charge to Participants, including, if and when available, bug fixes, patches, maintenance releases, new point releases, and new major version releases.

1.9 Use of the Software means and includes any action of installing or executing the Software, displaying the Software on a monitor screen, or storing the Services in whole or in part in the main or auxiliary memory of a personal computer, or in other storage devices.

2. LICENSE GRANT; FEATURES; SERVICES.

2.1 Software License. Subject to the terms and conditions of this Agreement, Delving grants Licensee a nontransferable, nonexclusive license to use the Software, in executable object code format only, solely in accordance with the Documentation, and solely as part of the Services, for the term provided in Participant’s Subscription (“License”). Licensee’s use of Software is limited to the scope of Participant’s Subscription under the Delving Terms of Service Agreement.

2.2 License Management Solution. The Software may utilize a license management solution which enables use of the Software in accordance with the restrictions provided by Delving. The license management solution may prevent additional user login, availability of certain functionality, processing of additional data or setup of new Authorized Users until a valid amended or extended License is obtained by Participant from Delving.

2.3 License Restrictions. Licensee shall not, and shall not allow any third party to: (a) decompile, disassemble, or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions, and then only with prior written notice to Delving); (b) distribute, sell, sublicense, rent, or lease the Software or the Documentation (or any portion thereof) or attempt to distribute, sell, sublicense, rent, or lease the Software or the Documentation (or any portion thereof); (c) use the Software or the Documentation (or any portion thereof) for any purposes not expressly permitted under this Agreement; (d) remove any product identification, proprietary, copyright or other notices contained in the Software or the Documentation (including any reports or data printed or exported from the Software); (e) modify any part of the Software or the Documentation, create a derivative work of any part of the Software or the Documentation, incorporate the Software into or with other software, or use the Software (or any part thereof) to provide any product or service to a third party, except to the extent expressly authorized in writing by Delving; (f) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software.

2.4 Prohibited Behavior. You, either as a Participant Licensee and on behalf of your Authorized Users, or as an individual Authorized User Licensee, hereby understand, acknowledge, and agrees that you will not do any of the following: alter, modify, edit, amend, abridge, add to, delete from, adapt, repackage, or change any of the Software in whole or in part; and/or remove any proprietary notices of copyright or trademark ownership, any watermarking, or any other proprietary notices or language referring to Delving's ownership of the Software; and/or copy, reproduce, publish, distribute, or redistribute any of the Software, in whole or in part, to any person who is not authorized to use the Software pursuant to this Agreement; and/or attempt to sell, resell, lend, lease, license, sublicense, assign, or otherwise transfer or attempt to transfer the Software, any rights granted under this Agreement, or any intellectual property rights owned by Delving, to any other person or entity; and/or provide any other person or entity access to the Software by means of your username and/or password; and/or attempt to lend, lease, license, sublicense, transfer, assign, sell, or resell your username(s) and password(s) to any other person or entity; and/or decompile, disassemble, translate or reverse engineer any portion of the Software, or otherwise discover or duplicate any technology, routines, computer code, algorithms, methods or underlying ideas or designs or user interface techniques included in any portion of the Software; and/or monitor, gather, copy, or distribute any content or data included in the Software by using any robot, rover, "bot," spider, scraper, crawler, spyware, engine, device, software, extraction tool, or any other automatic device, utility, or manual process of any kind; and/or insert any code or product to manipulate the Software in any way; and/or make or attempt to make any commercial use or exploitation of the Software; and/or circumvent, disable or otherwise interfere with the security features of the Software, or any features that prevent or restrict use or copying of any portion of the Software; and/or use the Software to collect or harvest any personally identifiable information ("PII"), including usernames and passwords of others; and/or use the Software to create multiple accounts under false or fraudulent pretenses; and/or use the Software to create or transmit unsolicited electronic communications; and/or use the Software to transmit any harmful code sequence or routines; and/or use the Software to violate the security of any computer network, to crack passwords or security encryption codes, or to transfer or store illegal material; and/or claim the Software as your property, your creation, or your work of authorship, in whole or in part; and/or contest or dispute Delving's ownership of the Software and all intellectual property rights in the Software; and/or use the Software after the termination date of this Agreement; and/or use the Software, in whole or in part, in any manner not authorized by this Agreement. LICENSEE HEREBY UNDERSTANDS, ACKNOWLEDGES, AND AGREES THAT ANY VIOLATION OR SUSPECTED VIOLATION OF THE FOREGOING LICENSE RESTRICTIONS BY LICENSEE OR ONE OF ITS AUTHORIZED USERS MAY CONSTITUTE GROUNDS ON WHICH DELVING MAY, IN ITS SOLE DISCRETION, SUSPEND OR TERMINATE LICENSEE’S LICENSE TO USE THE SOFTWARE, IN ADDITION TO ALL OTHER REMEDIES AVAILABLE TO DELVING AT LAW OR EQUITY.

2.5 Third-Party and Open Source Software. The Software may be distributed with or contain or use certain third-party proprietary software (“Third-Party Software”) and certain “open source software” or “free software” (“Open Source Software”), which may be identified in the Documentation, or, if not so identified, Delving shall provide a list of such Third-Party Software and Open Source Software and copies of their governing licenses, upon request. Such Third-Party Software and Open Source Software (i) are not subject to the terms and conditions of Sections 2.1 (Software License) or 7 (Indemnification) and (ii) are licensed under the terms of the end-user license that accompanies such software. Nothing in this Agreement limits Licensee’s rights under, or grants Licensee rights that supersede, the terms and conditions of any applicable end user license for the Third- Party Software and Open Source Software. If required by any license for particular Open Source Software, Delving makes such software, and Delving’s modifications to that Open Source Software, available by written request, along with the license governing such Open Source Software.

3. AUDIT RIGHTS.

Licensee acknowledges and agrees that Delving may, at its expense, audit Licensee’s use of the Services. Any such audit shall either be conducted by means of remote access from a Delving location or on-site during regular business hours at Licensee’s facilities, and shall not unreasonably interfere with Licensee’s business activities.

4. PROPRIETARY RIGHTS.

The Software is licensed and not sold to Licensee, and Licensee may only use the Software as a Licensee under this Agreement. Delving and its suppliers exclusively own all Intellectual Property inherent in the Services, all Intellectual Property Rights invoked by or applicable to the Services and any modifications, improvements, enhancements, customizations, Updates, or derivative works of the Services. No title or ownership of any Intellectual Property or Intellectual Property Rights owned by Delving passes under this Agreement, and all rights not expressly granted to Licensee in this Agreement are reserved to Delving. Licensee may provide suggestions or improvements to Delving in connection with this Agreement (“Feedback”). Delving shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to incorporate any such Feedback into the Services or to use such Feedback for any of Delving’s business purposes, including any improvements of the Services.

5. TERM AND TERMINATION.

3.1 Term. The term of this Agreement shall commence on the date on which Licensee clicks through the consent mechanism and shall, unless terminated earlier in accordance with the provisions of this Agreement, remain in force for the period for which Participant pays or has paid the appropriate fee under Participant’s Subscription to keep Licensee’s account active.

3.2 Termination. Delving may terminate this Agreement at any time and for any reason, including convenience, by providing reasonable advance notice to Licensee. Delving may terminate this Agreement immediately with or without notice to the Licensee in the event that Licensee or any Authorized User of Licensee materially breaches any of the terms of this Agreement. Termination of this Agreement shall not relieve Participant of its obligation to pay all fees owed by Participant pursuant to Participant’s Subscription.

3.3 Effects of Termination. Upon expiration or termination of this Agreement for any reason, all licensed rights granted in this Agreement will immediately cease and Licensee shall no longer have access to the Services.

6. WARRANTIES AND DISCLAIMERS.

Delving warrants that the Services, including the Software, will operate substantially in accordance with this Agreement and the Documentation. Licensee’s exclusive remedy and Delving’s sole liability for breach of this warranty is that Delving shall, at its own expense, use commercially reasonable efforts to correct or replace the defective component of the Services. This warranty will only apply if there is no modification, alteration or addition which has been made to the Services by any person other than Delving or its authorized agents. EXCEPT FOR THE EXPRESS WARRANTIES ABOVE, DELVING AND ITS SUPPLIERS OR LICENSORS HEREBY DISCLAIM ALL OTHER WARRANTIES FOR THE SERVICES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. LICENSEE AGREES THAT NEITHER DELVING NOR ITS SUPPLIERS OR LICENSORS MAKES ANY WARRANTY THAT THE SERVICES WILL BE ERROR FREE, OPERATE WITHOUT INTERRUPTION OR WILL FULFILL ANY OF LICENSEE’S PARTICULAR NEEDS, PURPOSES, OR, EXPECTATIONS. EXCEPT AS STATED ABOVE, DELVING AND ITS SUPPLIERS PROVIDE THE SERVICES ON AN “AS IS” AND “AS AVAILABLE” BASIS. Delving provides no warranties with respect to Third Party Software and Open Source Software. Licensee shall have the benefit of any third-party warranties, service agreements and infringement indemnities contained in the purchase agreements or licenses applicable to the Third-Party Software and Open Source Software.

7. LIMITATION OF LIABILITY.

EXCEPT FOR EXCLUDED CLAIMS (DEFINED BELOW), NEITHER DELVING NOR ITS SUPPLIERS OR LICENSORS SHALL BE LIABLE FOR ANY LOSS OF USE, LOSS OF DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, DELVING’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO LICENSEE SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY LICENSEE TO DELVING DURING THE TWELVE (12) MONTHS UNDER THIS AGREEMENT PRIOR TO THE DATE ON WHICH LICENSEE’S CLAIM ARISES. “Excluded Claims” means any claim arising from a breach of Section 2.1 (Grant of License), 2.3 (License Restrictions) or 9 (Confidentiality). The parties agree that the limitations specified in this Section 6 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

8. INDEMNIFICATION.

8.1 Licensee’s Indemnification Obligation. Licensee shall indemnify and hold harmless Delving, its officers, directors, employees, agents, representatives, and licensors from, and, at Licensee’s expense, shall defend Delving against, any loss, damage or expense (including reasonable and directly related legal costs) that Delving incurs or becomes liable for as a result of any breach by Licensee, by any of its Authorized Users, or by its agents, representatives, or others for whom Licensee is responsible, of any of the terms of this Agreement; any negligent, reckless or willful act or omission by Licensee or by any of its Authorized Users or by its agents or others for whom Licensee is responsible; any failure by Licensee or by any of its Authorized Users or by its agents or others for whom Licensee is responsible to comply with applicable laws in performing under this Agreement; any misuse, either by Licensee or by any of its Authorized Users or by its agents or others for whom Licensee is responsible, of the Services or of the Documentation; or, any claim made against Delving by any third party for which Delving is not liable under this Agreement, and which arises as a consequence of use of the Services by Licensee or by any of its Authorized Users or by its agents or others for whom Licensee is responsible. Licensee shall reimburse Delving for its expenses under this Section as they are incurred. Delving shall have the right, at its own expense, to participate in the defense of any claim, action or proceeding against which it is indemnified hereunder. Licensee, in the defense of any such claim, action, or proceeding arising under this Section shall not, except with the written consent of Delving obtained in advance, enter into any settlement which adversely affects Delving’s rights or which does not include, as an unconditional term, a release granted to Delving of all liabilities in respect of such claim, action or proceeding.

8.2 Delving’s Indemnification Obligation. Delving shall indemnify, defend and hold Licensee harmless against any claim or action brought by a third party against Licensee to the extent based upon any claim that the Services infringe the Intellectual Property Rights of such third party. Licensee shall promptly notify Delving in writing of any such claim, Delving shall have full authority and control of the settlement and defense of the claim, and Licensee shall fully cooperate with Delving in the defense of such claim. Delving shall have no obligation to Licensee under this Agreement for any claim that arises from: (a) any modification to the Services made by anyone other than Delving; (b) any use by Licensee of the Services other than as specified in this Agreement or in the Documentation; or (c) Licensee’s use of prior versions of the Software after an update has been provided by Delving to Licensee. If a third-party claim for infringement arises, or in Delving’s reasonable opinion is likely to arise, Delving may at its own expense obtain for Licensee the right to continue using the Services, may modify the Services to make them non-infringing, or may substitute other components of similar capability and functionality. If none of the foregoing options are reasonably available to Delving, Delving may terminate this Agreement and refund to Licensee the fees paid, less the fees for Licensee’s use of the Services prior to such termination. THIS SECTION STATES THE ENTIRE INDEMNIFICATION OBLIGATION OF DELVING AND LICENSEE’S EXCLUSIVE REMEDIES WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT OR PROPRIETARY RIGHTS VIOLATIONS BROUGHT AGAINST LICENSEE AND FOR WHICH LICENSEE MAY SEEK INDEMNIFICATION.

9. CONFIDENTIALITY.

“Confidential Information” means any and all information related to Delving’s business that is labeled or identified as “confidential” or “proprietary”; or otherwise is of such a type or disclosed in such a way that a reasonable person would understand that the information disclosed is confidential or proprietary, including, without limitation, software, source code and specifications, trade secrets, development plans, content, technical information, business forecasts and strategies, and information regarding personnel, customers and suppliers. Without limiting the foregoing, the Software and Documentation are the “Confidential Information” of Delving. Licensee agrees (i) to hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party by using the same degree of care, but no less than a reasonable degree of care, as the receiving party uses to protect its own Confidential Information of a like nature against unauthorized dissemination and use, (ii) not to disclose such Confidential Information to any third parties, except as described herein and (iii) not to use any Confidential Information except for the purposes of this Agreement. With the advance written permission of Delving, Licensee may disclose Delving’s Confidential Information to its responsible employees and contractors with a bona fide need to know, but only to the extent necessary to carry out the purposes of this Agreement, and only if such employees and contractors are subject to a nondisclosure agreement sufficient to protect Delving’s Confidential Information hereunder. The restrictions set forth in this section will not apply to any Confidential Information that Licensee can demonstrate by a preponderance of evidence (a) was known to it prior to its disclosure; (b) is or becomes publicly known through no wrongful act of Licensee; (c) has been rightfully received from a third party authorized to make such disclosure without restriction; (d) is, by clear and convincing evidence in the possession of Licensee, independently developed by Licensee without reference to Delving’s Confidential Information. The parties agree that a breach of this section may cause Delving irreparable damage which money cannot satisfactorily remedy, and, therefore, the parties agree that in addition to any other remedies available at law or hereunder, Delving shall be entitled to seek injunctive relief for any threatened or actual unauthorized disclosure.

10. WAIVER OF INJUNCTIVE RELIEF.

Licensee hereby acknowledges and agrees that Licensee cannot be damaged or injured under this Agreement in a manner that cannot be sufficiently remedied by an action for monetary damages. Accordingly, Licensee hereby acknowledges and agrees that Licensee shall not be entitled to seek an injunction against Delving under any circumstances or obtain any order that would suspend Delving’s right to make the Software available to other Licensees, and Licensee hereby waives all rights to seek injunctive relief under this Agreement.

11. PUBLICITY.

Delving may use Licensee’s name, logo and marks to identify Licensee as a customer of Delving on Delving’s website and other marketing materials.

12. U.S. GOVERNMENT END USERS.

The Software is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. The Software is provided to any federal, state or local government agency only subject to the terms of this Agreement and such additional terms as are agreed by the parties in a properly executed writing and that are consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4.

13. FORCE MAJEURE.

Delving shall not be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of strikes, riots, fires, flood, storm, explosions, acts of God, war, governmental action, earthquakes, or any other cause which is beyond the reasonable control of Delving.

14. GOVERNING LAW AND DISPUTE RESOLUTION.

This Agreement will be governed by and construed under the laws of the United States and the State of California without regard to its conflict of laws provisions and without regard to the United Nations Convention on the International Sale of Goods. The parties agree that any dispute that arises under this Agreement which cannot be resolved within thirty (30) days by good-faith negotiations between the parties shall be submitted to mandatory mediation in the city of San Jose, California and before a single mediator accredited and chosen by the Judicial Arbitration and Mediation Services, Inc. (“JAMS”). The mediation shall take place within sixty (60) days after submission to JAMS, and it shall last no longer than ten (10) hours on one (1) working day, unless the parties agree to an extension of the mediation. The mediator shall apply U.S. and California law to the substantive issues and the JAMS’ Rules for Commercial Mediation to the procedural issues. The parties shall bear their own costs for the mediation, and they shall split equally the costs of the mediator. The resolution proposed by the mediator shall be binding with the consent of the parties, and it shall be submitted to any state or federal court sitting in San Jose, California for enforcement, which courts, the parties agree, have exclusive jurisdiction and venue for adjudication of disputes under this Agreement. If a party is not satisfied with the result proposed by the mediator, such party shall have the right to file suit in any court having jurisdiction in San Jose, California. Notwithstanding the foregoing, in circumstances of breach or alleged breach, Delving may apply for injunctive relief at any time to any court having jurisdiction.

15. GENERAL.

All notices provided under this Agreement must be delivered in writing by courier, by facsimile, by pdf attachment to an email, or by certified or registered mail (postage prepaid and return receipt requested) and shall be effective upon the earlier of receipt or three (3) business days after being deposited in the mail as required above. The parties hereto are independent contractors. Nothing in this Agreement shall be deemed to create an agency, employment, partnership, fiduciary or joint venture relationship between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent. Licensee may not assign or transfer this Agreement or its rights and obligations under this Agreement. Licensee agrees not to export the Software in violation of the laws and regulations of the United States or any other nation. If any legal action is brought to enforce this Agreement, the prevailing party shall be entitled to receive its attorneys’ fees, court costs, and other collection expenses, in addition to any other relief it may receive. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. This Agreement may be amended only by a written document signed by both parties. If any provision of this Agreement is held invalid or unenforceable, such provision shall be reformed to the extent necessary to make it valid and enforceable and the remaining provisions shall continue in full force and effect. This Agreement constitutes the complete agreement between the parties and supersedes all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement.

CONTACTING US

Delving commits to resolve questions or concerns about this Agreement. Contact Delving at:

Delving (Cosentio, Inc.)
113 Cherry Street
PMB 38924
Seattle, WA 98104-2205