End User License Agreement

END USER LICENSE AGREEMENT

This End User License Agreement (this “Agreement”) is entered into as of _______________ (the “Effective Date”), by and between ROI DEVELOPERS, INC, a Texas corporation (“Licensor”), a Texas corporation, and ______________, a _________________________ (“Licensee”). 

WHEREAS, Licensor develops and markets computer software applications, including the Software (as defined below), which Software is more particularly described in the Documentation (as defined below); and

WHEREAS, Licensee desires to acquire a license to use the Software and Documentation and Licensor desires to grant Licensee such license.

THEREFORE, for good and valuable consideration, receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

  1. Definitions and Interpretation. In this Agreement, the following words have the following meanings:
  1. Confidential Information” means information belonging to any party to this Agreement that is of value to the applicable party in the course of conducting his, her, or its business and the disclosure of which could result in a competitive or other disadvantage to such Disclosing Party (as defined below) or could have economic value to others if improperly disclosed. Confidential Information includes, without limitation, information concerning any matters affecting or relating to the business or the affairs of the Disclosing Party, including, but not limited to, financial information, matters, condition, reports, and/or forecasts; inventions, improvements and other intellectual property; trade secrets; know-how; designs, product designs, production techniques and practices, research and development, manufacturing, processes or formulae; projects, services, programs, patterns, devices, methods, compilations of information; software; market or sales information or plans; purchasing, accounting, engineering, marketing, merchandising, selling, advertising, promotions and/or distribution systems or methods; customer lists, vendors, suppliers, contracts; files, books, records; source code, object code, compiled code; and business plans, prospects and opportunities that have been discussed or considered by the Disclosing Party. Notwithstanding the foregoing, Confidential Information does not include information: (i) in the public domain, or that becomes publicly available, unless due to a breach of the non-Disclosing Party of this Agreement; (ii) that was known by the non-Disclosing Party prior to disclosure to the non-Disclosing Party; (iii) that properly comes into the non-Disclosing Party’s possession from a third party that is not under any obligation to maintain the confidentiality of the Confidential Information; or (iv) that is independently developed or acquired by the non-Disclosing Party without reference to Confidential Information.
  1. Derivative Works” means any software programs, and copies thereof, which are developed by Licensee and which are based on or incorporate any part of the Software delivered by Licensor hereunder, including without limitation any revision, modification, translation (including compilation or recapitulation by computer), abridgment, condensation, expansion, or any other form in which the Software may be recast, transformed or adapted, and that, if prepared without Licensor’s authorization, would constitute a copyright or trade secret infringement of the Software.
  1. End User means the individual or entity that is licensed or authorized to use the Software under this Agreement.
  1. Force Majeure Event means any event beyond a party’s reasonable control that, by its nature, could not have been foreseen or, if it could have been foreseen, was unavoidable, including labor disputes or shortages, acts of God, war, riot, embargoes, acts of civil or military authorities, acts of terrorism or sabotage, fire, flood, earthquake, failure of communications or energy sources, malicious damage, or epidemics, pandemics, or outbreak of communicable disease including the novel coronavirus COVID-19.
  1. High Risk System means a device or system that requires extra safety functionalities such as fail-safe or fault- tolerant performance features to maintain a safe state where it is reasonably foreseeable that failure of the device or system could lead directly to death, personal injury or catastrophic property damage. A device or system with a fail-safe feature in the event of failure may revert to a safe condition rather than break down, may include a secondary system that comes into operation to prevent a malfunction, or may operate as a backup in the event of a malfunction. A device or system with a fault-tolerant feature in the event of failure may continue its intended operation, possibly at a reduced level, rather than failing completely. Without limitation, High Risk Systems may be required in critical infrastructure, industrial plants, manufacturing facilities, direct life support devices, aircraft, train, boat or vehicle navigation or communication systems, air traffic control, weapons systems, nuclear facilities, power plants, medical systems and facilities, and transportation facilities.
  1. Intellectual Property Rights means all intellectual property or other proprietary rights throughout the world, whether existing under statute, at common law or in equity, now existing or created in the future, tangible or intangible, and patentable or unpatentable, including (i) copyright, trademark, and patent rights, trade secrets, moral rights, right of publicity, authors’ rights; (ii) any application or right to apply for any of the rights referred to in paragraph (i); and (iii) all renewals, extensions, continuations, divisions, restorations or reissues of the rights, or applications referred to in paragraphs (i) and (ii).
  1. Documentation” means all user manuals and other written material created by Licensor to describe the functionality or assist in the use of the Software.
  1. Personal Data means any information relating to an identified or identifiable individual or is otherwise defined as ‘Personal Data’ under the General Data Protection Regulation or other applicable data protection laws to the extent that the definition of ‘Personal Data’ under the applicable data protection laws is broader than the preceding definitions.
  1. Product Entitlement means the number of licenses and/or subscription types set forth on Exhibit A to this Agreement. 
  1. Software” means the computer program or programs marketed and sold as Accruvia, including any Upgrades, bug fixes, enhancements, or other modifications. It does not include any version of the Software that constitutes a separate product because of differences in function or features.
  1. Support means the services that Licensor provides for the support and maintenance of the Software, including training and configuration.
  1. Upgrade means any and all updates and improvements in the Software that are generally made available to End Users as a part of purchased Support. Upgrades are not separately priced or marketed by Licensor.
  1. License Grant. Subject to the terms and conditions of this Agreement, Licensor hereby grants Licensee a non-exclusive, non-transferable right to use the Software and the Documentation solely for Licensee’s own internal business operations (the “License”). The License includes the right to download, install, and access the Software; provided, however, Licensee may not download and/or install the Software in any manner that exceeds the Product Entitlement. Licensee shall have the right to license the Software for any additional site or sites within Licensee’s internal organization and Licensee represents and warrants that any such additional sites shall be under the direct control of Licensee and that the use of the Software at such additional sites or sites shall be subject at all times to the terms and conditions of this Agreement. 
  1. Support Services. Subject to Licensee’s payment of the License Fee, Licensor shall provide up to ten (10) hours per month of Software Support to Licensee during the Term, including but not limited to, (i) diagnosis of problems or performance deficiencies in the Software; and (ii) a resolution of the problem or performance deficiencies in the Software. Such Support shall be available via telephone and internet on business days during normal United States business hours, except for federal holidays. Licensor shall use commercially reasonable efforts to cure reported and reproducible problems and performance deficiencies in the Software; provided, however, that, except for the Limited Warranty and the Uptime Warranty, Licensor does not guarantee or warrant that the problems or performance deficiencies will be solved or that the Software will be error-free at any time. During the Term, Licensor shall provide Licensee with patches, updates, releases, and new versions of the Software along with other generally available technical material. These maintenance materials may not be used to increase the Product Entitlement.  
  1. Term. The License shall be effective beginning on the date the Software is first made available to Licensee and shall continue thereafter until this Agreement is terminated pursuant to Section 6 (the “Term”). 
  1. Payments; Taxes; Audit.
  1. License Fees; Automatic Payments. In consideration for the License granted to Licensee under this Agreement and Licensor’s obligation to provide Support, Licensee shall pay Licensor a license fee of One Hundred Fifty and No/100 Dollars ($150.00) per month (the License Fee”), which License Fee shall be due immediately after the date of Licensor’s invoice for the same. If Licensee believes that an invoice for the License Fee is incorrect, Licensee must contact Licensor within thirty (30) days after the date of the invoice and the parties will thereafter reasonably cooperate with each other to settle such dispute. If Licensee does not contact Licensor within such thirty (30) day period, such invoice shall be deemed final and correct for all purposes and Licensee shall have no further right to contest such invoice. Licensee hereby authorizes and directs Licensor to automatically charge the License Fee, as and when due, to Licensee’s credit or debit card on file with Licensor, which the Licensee agrees to keep on file at all times. Licensee shall be solely responsible for ensuring that the credit or debit card information on file with Licensor is true and correct at all times and that there are sufficient credit or funds available on the applicable credit or debit card at the time of payment to permit the payment of the License Fee. Licensee shall reimburse Licensor for any and all charges, fees, and penalties incurred by Licensor as a result of any declined, returned, or failed payment that is attempted on Licensee’s credit or debit card. Any License Fee that is not paid when due shall be subject to a late fee of five percent (5%) of the overdue amount for each month outstanding until paid, beginning with the due of the of the License Fee.
  1. Taxes. In addition to other amounts payable under this Agreement, Licensee will pay any and all federal, state, municipal, or other taxes, duties, fees, or withholding currently or subsequently imposed on Licensee’s use of the Software or the payment of the License Fee to Licensor, other than taxes assessed against Licensor’s net income. Such taxes, duties, fees, withholding, or other charges will be paid by Licensee or Licensee will provide the appropriate authority with evidence of exemption from such tax, duty, fee, withholding, or charge. If Licensor is required to pay any such tax, duty, fee, or charge, or to withhold any amount from monies due to Licensor from Licensee pursuant to this Agreement, Licensee will promptly reimburse Licensor any such amounts.
  1. Audit. Licensor may request, and Licensee must provide within thirty (30) days from the request date, a Software-facilitated system-generated report (a “System Report”) verifying Licensee’s Software deployment. Licensee acknowledges that the System Report is based on technological features of the Software that provide Software deployment verification. If the Software does not contain technological features that provide Software deployment verification, Licensee will prepare and provide to Licensor an accurate Software deployment verification report for the Software within thirty (30) days from Licensor’s request. Licensor may request the System Report (or Licensee’s prepared Software deployment verification report) no more than once per year and will not unreasonably interfere with the conduct of Licensee’s business. If a System Report or Licensee’s prepared Software deployment verification report identifies that Licensee is out of compliance with the license terms of this Agreement, Licensee shall purchase the additional licenses and pay any fees associated with the additional licenses and Support. Licensor may also charge an out-of-compliance fee.
  1. Copy and Use Terms.
  1. Product Entitlement. The use of the Software depends on the licenses purchased and is subject to the Product Entitlement.
  1. Access to Systems. Licensee acknowledges and agrees that the continued functionality of the Software depends on Licensor’s ability to access Licensee’s computer, software, and communications systems and networks. Licensee shall ensure that, at all times during the Term, Licensor has reasonable access to Licensee’s computer, software, and communications systems and networks for purposes of fulfilling Licensor’s obligations under this Agreement. 
  1. General restrictions. Licensee may not, and may not cause or allow any third party to (i) remove, erase, obscure or tamper with any copyright or any other product identification or proprietary rights notices, seal or instructional label printed or stamped on, affixed to, or encoded or recorded in or on any Software or Documentation or fail to preserve Licensee’s Intellectual Property Rights in the Software and the Documentation; (ii) sell, market, license, sublicense, distribute or otherwise grant to any person or entity any right to use the Software except to the extent expressly permitted in this Agreement; (iii) modify, adapt, tamper with, translate or create Derivative Works of the Software or the Documentation or refer to or otherwise use the Software as part of any effort to develop software (including any routine, script, code, or program) having any functional attributes, visual expressions or other features similar to those of the Software to compete with Licensor; (iv) except with Licensor’s prior written permission, publish any performance or benchmark tests or analysis relating to the Software; or (v) attempt to do any of activities in Subsections (i) to (iv).
  1. Merchant Services Agreement. At all times during the Term, Licensee shall have and maintain a merchant services agreement on such terms and with such merchant services provider as are reasonably acceptable to Licensor (a “Merchant Services Agreement”). Licensee acknowledges and agrees that the failure to maintain a Merchant Services Agreement may adversely impact the functionality of the Software and Licensee’s ability to accept payments through the Software. 
  1. Termination.
  1. Termination for Convenience. Either party may terminate the Agreement at any time upon written notice to the other party; provided, however, in the event Licensee terminates this Agreement, Licensor shall not be obligated to reimburse or refund Licensee any portion of the License Fee paid by Licensee for the month in which Licensee terminates this Agreement.
  1. Rights on Termination. On termination, (a) all rights granted to Licensee under this Agreement shall immediately cease and Licensee will promptly cease all use and reproduction of the Software and Documentation and (b) Licensee will promptly return all copies of the Software to Licensor or destroy all of Licensee’s copies of the Software and so certify to Licensor in writing within fourteen (14) days of termination. 
  1. Confidentiality
  1. Value of Confidential Information. Each party acknowledges that it may have access to Confidential Information of the other party in connection with this Agreement, and that each party’s Confidential Information is of substantial value to the party disclosing such Confidential Information (the “Disclosing Party”), which could be impaired if it were improperly disclosed to third parties or used in violation of this Agreement.
  1. Duty of Confidentiality. During the Term of this Agreement  and at all times after the termination or expiration of this Agreement, each party shall (i) keep the other party’s Confidential Information confidential and protect it at least to the same extent it protects its own Confidential Information and to the same extent that a reasonable person would protect such Confidential Information; (ii) not disclose the Disclosing Party’s Confidential Information except (A) as may be necessary in the ordinary course of performing the its duties to the Disclosing Party hereunder or as the Disclosing Party directs and authorizes; (B) to accountants, attorneys, and other professionals engaged by the Disclosing Party, provided that such disclosure is necessary for the provision of professional services, and further provided that such professionals are bound to maintain the confidentiality of the Confidential Information so disclosed; or (C) as required by law. In the event the non-Disclosing Party is required to disclose any Confidential Information by law, the non-Disclosing Party will provide prompt notice of the same to the Disclosing Party so that the Disclosing Party (at his, her, or its sole discretion and cost) may seek a protective order or other appropriate remedy.
  1. Notice of Disclosure; Enforcement. The non-Disclosing Party will promptly notify the Disclosing Party if Confidential Information of the Disclosing Party is used or disclosed in breach of this Agreement. The parties acknowledge and agree that monetary damages may not be sufficient relief if anyone violates or threaten to violate the terms of this Section 8 and that such violation or threatened violation would irreparably harm the Disclosing Party and, accordingly, the Disclosing Party is entitled to enforce its rights by specific performance or injunction proceedings, in addition to any other rights or remedies it may have at law or in equity.
  1. Intellectual Property Rights
  1. Ownership of Intellectual Property Rights. The Software, including its object code and source code, whether or not provided to Licensee, is Confidential Information of Licensor. Licensor owns exclusively, and reserves all rights, title and interest in and to, the Software and Documentation, including all Intellectual Property Rights as well as any Derivative Works. Licensee may not exercise any right, title and interest in and to the Software, Documentation or any related Intellectual Property Rights, except for the limited usage rights granted to Licensee in this Agreement. Licensee agrees that it will take no action inconsistent with Licensor’s Intellectual Property Rights.
  1. Not a Sale. This Agreement is not an agreement of sale, and does not transfer any title, Intellectual Property Rights or ownership rights to the Software or Documentation to Licensee. Licensee acknowledges and agrees that the Software, Documentation and all ideas, methods, algorithms, formulae, processes and concepts used in developing or incorporated into the Software or Documentation, all future Upgrades, and all other improvements, revisions, corrections, bug-fixes, hot- fixes, patches, enhancements, releases, DATs, signature sets, and policy and database updates and other updates in, of, or to the Software or Documentation, as applicable, all Derivative Works based on any of the foregoing, and all copies of the foregoing are trade secrets and proprietary property of Licensor, having great commercial value to Licensor.
  1. Limited Warranty and Disclaimer
  1. Limited and Uptime Warranty.  Licensor warrants that, for a period of thirty (30) days from the first date of installation of the Software, the Software licensed under this Agreement will perform substantially in accordance with the Documentation (the “Limited Warranty”). Licensor further warrants that, during the Term, the Software will be operational with a monthly uptime average of ninety-five percent (95%), calculated based on an 8-hour day, during normal business hours, five (5) days per week, excluding preventative and interim maintenance time (the “Uptime Warranty”). Licensee’s exclusive remedy and Licensor’s entire obligation and liability for any breach of the Limited Warranty or the Uptime Warranty is to repair or replace the Software or refund to Licensee the License Fee paid for the Software if a repair or replacement of the Software would, in Licensor’s reasonable opinion, be unreasonable. The Limited Warranty and the Uptime Warranty are conditioned upon Licensee providing Licensor prompt written notice of the Software’s failure to perform substantially in accordance with the Documentation or meet the required uptime average, as applicable.
  1. Exclusion of Warranty. The Limited Warranty and the Uptime Warranty will not apply if (i) the Software is not used in strict accordance with this Agreement and the Documentation; (ii) the Software or any part of the Software has been modified by any person or entity other than Licensor; (iii) a malfunction in the Software has been caused by any equipment or software not supplied by Licensor; or (iv) Licensee’s failure to maintain a Merchant Services Agreement pursuant to Section 6.4.
  1. Disclaimer of Warranties. EXCEPT FOR THE LIMITED WARRANTY AND THE UPTIME WARRANTY, THE SOFTWARE AND DOCUMENTATION ARE PROVIDED “AS IS.” TO THE EXTENT PERMITTED BY LAW, LICENSOR MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING THE SOFTWARE, DOCUMENTATION, AND SUPPORT, AND LICENSOR EXPRESSLY DISCLAIMS ALL OTHER OBLIGATIONS AND LIABILITIES, OR EXPRESS OR IMPLIED WARRANTIES OF ANY KIND WHATSOEVER REGARDING THE SOFTWARE, DOCUMENTATION, AND SUPPORT, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR SYSTEMS INTEGRATION. LICENSOR MAKES NO WARRANTY, REPRESENTATION OR GUARANTEE AS TO THE SOFTWARE’S USE OR PERFORMANCE, OR THAT THE OPERATION OF THE SOFTWARE WILL BE FAIL- SAFE, UNINTERRUPTED OR FREE FROM ERRORS OR DEFECTS; OR THAT THE SOFTWARE WILL PROTECT AGAINST ALL POSSIBLE THREATS.
  1. High Risk Systems Terms. THE SOFTWARE MAY FAIL AND IS NOT DESIGNED, DEVELOPED, TESTED, OR INTENDED TO BE RELIABLE IN THE CONTEXT OF HIGH-RISK SYSTEMS. LICENSOR HAS NO RESPONSIBILITY FOR, AND LICENSEE WILL INDEMNIFY AND HOLD HARMLESS LICENSOR FROM, ALL CLAIMS, SUITS, DEMANDS AND PROCEEDINGS ALLEGING, CLAIMING, SEEKING, OR ASSERTING ANY LIABILITY, LOSS, OBLIGATION, RISK, COST, DAMAGE, AWARD, PENALTY, SETTLEMENT, JUDGMENT, FINE OR EXPENSES (INCLUDING ATTORNEYS’ FEES) ARISING FROM OR IN CONNECTION WITH LICENSEE’S USE OF THE SOFTWARE ON OR IN A HIGH RISK SYSTEM, INCLUDING THOSE THAT COULD HAVE BEEN PREVENTED BY DEPLOYMENT OF FAIL-SAFE OR FAULT-TOLERANT FEATURES TO THE HIGH RISK SYSTEM, OR ARE BASED ON A CLAIM, ALLEGATION, OR ASSERTION THAT THE FUNCTIONING OF HIGH RISK SYSTEM DEPENDS OR DEPENDED ON THE FUNCTIONING OF THE SOFTWARE, OR THAT THE FAILURE OF THE SOFTWARE CAUSED A HIGH RISK SYSTEM TO FAIL.
  1. Third Parties. The parties acknowledge and agree that the Software and Documentation may contain independent third-party products and rely on them to perform certain functionality, including malware definitions or URL filters and algorithms. Licensor makes no warranty whatsoever as to the operation of any third-party products or the accuracy of any third-party information.
  1. Limitation of Liability.  LICENSOR’S ENTIRE AGGREGATE LIABILITY TO LICENSEE FOR CLAIMS UNDER OR RELATED TO THE SUBJECT-MATTER OF THIS AGREEMENT WILL NOT EXCEED THE TOTAL PAYMENTS PAID OR PAYABLE BY LICENSEE TO LICENSOR UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRIOR TO THE CLAIM. LICENSOR SHALL NOT BE LIABLE FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS, OR FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, OR EXEMPLARY DAMAGES OR COSTS (INCLUDING ATTORNEYS’ FEES) IN CONNECTION WITH THIS AGREEMENT, EVEN IF THE DAMAGES WERE FORESEEABLE OR A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. THIS LIMITATION OF LIABILITY APPLIES WHETHER SUCH CLAIMS SOUND IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCT LIABILITY, OR OTHERWISE. NOTHING IN THIS AGREEMENT LIMITS OR EXCLUDES ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW.
  1. Indemnification
  1. Licensee Indemnification Obligations. Licensee shall unconditionally indemnify, defend, and hold harmless Licensor, its affiliates, and their respective officers, directors, employees, contractors and agents (each a “Licensor Indemnified Party”) against any claims, liabilities and expenses (including court costs and reasonable attorneys’ fees) that a Licensor Indemnified Party incurs as a result of or in connection with any third-party claims arising from (i) Licensee‘s failure to obtain any consent, authorization or license required for Licensor’s use of data, software, materials, systems, networks or other technology provided by Licensee under this Agreement; (ii) Licensee’s use of the Software and/or Documentation in a manner not expressly permitted by this Agreement; (iii) Licensor’s compliance with any technology, designs, instructions or requirements provided by Licensee or a third party on Licensee’s behalf; (iv) any violation by Licensee of applicable laws;  (v) any reasonable costs and attorneys’ fees required for Licensor to respond to a subpoena, court order or other official government inquiry regarding Licensee’s use of the Software; or (vi) Licensee’s disclosure or dissemination of the Data (as defined below) of any customer, client, vendor, employee, contractor, agent, or End User of Licensee in violation of Licensee’s privacy, personal data, or similar policy or the privacy, personal data, or similar policy of any such customer, client, vendor, employee, contractor, agent, or End User.
  1. Indemnification Procedure. The applicable Licensor Indemnified Party will provide prompt written notice to Licensee of the claim (provided that the failure to provide timely notice shall not  relieve Licensee of its obligations under this Section 12) and, thereafter the Licensor Indemnified Party shall reasonably cooperate in connection with the defense or settlement of the claim. Notwithstanding the foregoing, the applicable Licensor Indemnified Party may notify Licensee of its election to assume the defense of such claim, in which event the Licensor Indemnified Party will defend against the claim utilizing counsel reasonably acceptable to Licensee at Licensee’s sole expense. In the event the applicable Licensor Indemnified Party makes such election, Licensee may also participate in the defense utilizing Licensee’s own counsel at Licensee’s expense. In no event shall Licensee independently consent to the settlement of any claim without the prior written consent of the applicable Licensor Indemnified Party. 
  1. Privacy and Collection of Personal Data or System Information.
  1. Collection of Personal Data. The parties acknowledge and agree that the Software or Support may employ applications and tools to collect Personal Data, sensitive data or other information about Licensee, Licensee’s customers, clients, vendors, employees, contractors, agents, and End Users  (including such parties’ name, address, e-mail address and payment details), their computers, files stored on their computers, and their computers’ interactions with other computers (including information regarding network, licenses used, hardware type, model, hard disk size, CPU type, disk type, operating system types, versions, locale, device ID, IP address, location, content, software installed, processes and services information, frequency and details of update of Licensor components, information about third party products installed, and usage patterns of Software and specific features, etc.) (collectively, the “Data”). The Data shall not be considered “Confidential Information” for purposes of Section 8 and in no event shall Licensor be deemed to own all or any portion of the Data.

13.2 Use of the Data. By entering into this Agreement, or using the Software, Documentation, and/or Support, Licensee acknowledges and agrees that Licensor may collect, process, copy, backup, store, transfer, and use the Data for various purposes, including but not limited to, facilitating or improving Licensee’s and End Users’ experience with the Software; providing the products and services requested by Licensee or End Users; processing transactions and sending Licensee or End Users related information; providing customer service; communicating about products, services, offers, promotions, rewards and events provided or conducted by Licensor (including but not limited to, software and services provided by Licensor other than the Software); managing Licensee’s and End Users’ online account(s) and sending technical notices, updates, security alerts and support and administrative messages; and monitoring and analyzing trends, usage and activities. Licensor may share the Data with vendors, consultants and other service providers of Licensor who need access to such information to carry out work on Licensor’s behalf; in response to a request for information if Licensor reasonably believes disclosure is in accordance with any applicable law or legal process, or is otherwise required by applicable law; if Licensor believes Licensee’s or an End User’s actions are inconsistent with Licensor’s policies or to protect the rights, property, and safety of Licensor or any third party; and in connection with, or during negotiations of, any merger, sale of company assets, financing or transfer of all or a portion of Licensor’s business to another company. Licensor shall use commercially reasonable efforts and institute appropriate procedures to safeguard and secure the Data so as to prevent unauthorized access or disclosure. Notwithstanding anything to the contrary herein, in no event shall Licensor sell the Data to any third party and Licensor shall fully comply with all applicable law, regulations, and government orders relating to personally identifiable information and data privacy with respect to all of the Data. 

  1. Privacy-Related Rights and Permissions. Licensee shall secure any and all privacy-related rights and permissions from individual persons as may be required by regulation, statute, or other law or Licensee’s internal policies or guidelines in order to disclose the Data, in order to use the Software, and/or in connection with Licensor’s performance of Support or otherwise under this Agreement.
  1. Compliance with Laws. Each party will comply with the applicable national, state and local laws with respect to its rights and obligations under this Agreement, including applicable privacy and export control laws and regulations, the U.S. Foreign Corrupt Practices Act, and other applicable anti-corruption laws. Licensee shall not, directly or indirectly, export, transmit, permit access or use any Software or technical data (or any part of Software or technical data) or system or service incorporating any Software to or in any country to which export, transmission or access is restricted by regulation, statute or other law, without the authorization, if required, of the competent governmental entity that may have jurisdiction over export or transmission. 
  1. General Provision
  1. Relationship. The parties are independent contractors under this Agreement and expressly disclaim any partnership, franchise, joint venture, agency, employer/employee, fiduciary or other special relationship. Neither party intends this Agreement to benefit or create any right or cause of action in or on behalf of, any person or entity other than the parties and listed Affiliates. This Agreement is not intended to create a third-party beneficiary of any kind. 
  1. Severability. If a court of competent jurisdiction holds that any provision of this Agreement is invalid or unenforceable under applicable law, the court will modify the provision to the minimum extent necessary to make it valid and enforceable or, if it cannot be made valid and enforceable, the court will sever and delete the provision from this Agreement. The change will affect neither the validity of the amended provision nor the validity of any other provision of this Agreement, which will continue in full force and effect.
  1. No Waiver; Reservation of Rights. A party’s failure or delay in enforcing any provision of this Agreement will not operate as a waiver of the right to enforce that provision or any other provision of this Agreement at any time. A waiver of any provision of this Agreement must be in writing, specify the provision to be waived and signed by the party agreeing to the waiver. Licensor has and reserves all rights and remedies that it has by operation of law or otherwise to enjoin the unlawful or unauthorized use of the Software or Documentation.
  1. Force Majeure; Other Excusable Failures or Delays in Performance. Neither party is liable for delays or failures to perform any of its obligations under this Agreement to the extent caused by a Force Majeure Event. Licensor’s failures or delays in its performance are excused to the extent they result from (i) Licensee’s acts or omissions, or those of its employees, agents, users, affiliates or contractors; (ii)  Licensee’s failure or delay in the performance of a specific task, obligation or responsibility under this Agreement or a Schedule, which task, obligation, or responsibility is a condition or requirement for a Licensor task, obligation, or responsibility; (iii) reliance on instructions, authorizations, approvals or other information from Licensee; or (iv) acts or omissions of third parties (unless directed by Licensor).
  1. Governing Law. All disputes arising out of or relating to this Agreement or its subject-matter will be governed by the law of the State of Texas. 
  1. Entire Agreement. This Agreement constitutes the entire understanding between Licensor and Licensee relating to its subject-matter hereof and supersedes all oral or written proposals, and all communications between the parties relating to the same. 
  1. Notices. Any notice given under or in relation to this Agreement must be in writing and will be considered delivered (i) when received if delivered by hand with receipt; (ii) on the same day if sent by e-mail; (iii) on the next business day if sent by pre-paid, nationally-recognized, overnight air courier with tracking capabilities; or (iv) on the fifth (5th) business day if sent by registered or certified mail, return receipt required, postage prepaid.
  1. Assignment. Licensee may not sublicense, assign or transfer its rights under this Agreement without Licensor’s prior written consent, which consent may be withheld in Licensor’s sole and absolute discretion. Any attempt by Licensee to sublicense, assign or transfer any of its rights, duties or obligations under this Agreement, whether directly, or indirectly by merger, acquisition or change of control, will automatically be null and void ab initio.
  1. Notice to U.S. Government End Users. The Software and accompanying License Documentation are considered “commercial computer software” and “commercial computer software documentation”, respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction, release, performance, display or disclosure of the Software and accompanying Documentation by the United States Government will be governed solely by this Agreement and will be prohibited except to the extent expressly permitted by this Agreement.
  1. Survival. Notwithstanding anything to the contrary herein, all provisions of this Agreement that, by their terms, could reasonably be expected to survive the expiration of the Term, including but not limited to, this Sections 8, 9, 10, 12, and 13, shall survive the expiration of the Term.

IN WITNESS WHEREOF, the parties have executed this Agreement as of the Effective Date.

EXHIBIT A

Product Entitlement

Licensee Fee includes access for three (3) employees. Additional employees may be added for an additional Twenty-Five and No/100 Dollars ($25.00) per month. 

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