Connecting People for Business

SOFTWARE SUBSCRIPTION SERVICE (SaaS) AGREEMENT

This is a contract between you (the Customer) and us (LionOBytes). It describes the services we will provide to you, how we will work together, and other aspects of our business relationship. These terms are so important that we cannot provide our products and services to you unless you agree to them. By using the Services or receiving the Services, you are agreeing to these terms.

We periodically update these terms. If you have an active LionOBytes subscription, we will let you know when we do via an email or in-app notification.

By accessing or otherwise using any Service(s) or any Services, the authorized employee executing this agreement on behalf of Customer represents and warrants that he or she has the power and authority to enter into this Agreement and bind Customer to the terms of this Agreement. If Customer does not agree to the terms of this Agreement, Provider is unwilling to provide access to the Services to Customer or provide any Services. IF CUSTOMER AGREES TO BE BOUND BY ALL THE TERMS OF THIS AGREEMENT, PLEASE EXECUTE THE AGREEMENT AND PROCEED TO ACCESS THE SERVICES. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY ALL THE TERMS OF THIS AGREEMENT, PROVIDER IS UNWILLING TO GRANT CUSTOMER ANY RIGHTS TO USE THE SERVICE, AND CUSTOMER MUST STOP INSTALLING AND ACCESSING THE SERVICE.

WHEREAS, Provider has agreed to provide the Services to Customer; All of the terms and conditions are set forth herein.

1. Recitals

A. Provider is the owner of certain proprietary customer relationship management software that is a subscription-based web application (the “Services,” “Software,” “Service Offerings,” “Provider’s Services,” or The “Provider Software”).

B. Provider is willing to provide access to the Services for Customer’s use pursuant to the terms and conditions set forth herein.

C. “Activity Report” shall mean a report generated by any Customer Employee User or Administrator User while using the Services.

D. “Employer Administrative User” means each Customer employee designated by Customer to serve as technical administrator of the SaaS Services on Customer’s behalf.

E. “Customer Employee User” means each Customer employee who uses or logs into the Services.

F. “Customer Client” shall mean any individual or business entity who receives the type of business services offered by Customer to the public.

G. “Customer Client Personal Information” shall mean any personal Personal Data or information of any kind that identifies a customer client by his or her name, email address, telephone number, birth date, social security number, or credit card information.

H. “Customer Employee User Personal Information” shall mean any personal Personal Data or information of any kind that identifies an employee of Customer by his or her name, email address, employee ID number.

I. “User” shall mean any individual authorized by Customer to log-in and access the Services.

J. “Customer Content” shall mean any type of information or documentation given to Provider by Customer to enable Provider to deliver the SaaS Services.

K. “SERVICES TERMS & FEES. Customers of ours subscribe to use our SaaS Software (the “Services”) and there are some fundamental terms that apply to each subscription. There are some differences between the different types of subscriptions, and fees and you should view our page to see the different subscriptions for the Services and applicable fees https://www.liono360.com/RequestPricing that apply.”

L. “Personal Data” shall mean any information relating to an identified or identifiable natural person (“Customer Client,” or "Personal Data subject"); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to his physical, physiological, mental, economic, cultural or social identity. Personal Data shall include name, email addresses, telephone numbers, birth dates, social security numbers, and personally identifiable information (PII) including financial information, and protected health information covered under HIPAA.

M. The “Software as a Service Solution” or “SaaS Solution” means the computer program resident on Provider’s servers and referred to by Provider as the “Services” “Software” “Service Offerings” “Provider’s Services” or The “Provider Software” that performs the Services and that may be accessed by Users through the Internet described hereto: Provider is providing Customer certain proprietary customer relationship management software that is a subscription based web application.

N. In consideration for Customer’s acceptance of and subject to the terms and conditions incorporated herein and the Privacy Policy (“Privacy Policy”) located at http://www.lionobytes.com as may be amended from time to time, and incorporated herein by this reference, Provider shall provide the Services to Customer during the term of this Agreement. Provider will use commercially reasonable The term of this Agreement shall commence on 06/17/2019 and shall continue for one (1) year (the “Initial Term”) and will be renewed for another one year.” efforts to make the Services accessible to Customer 24 hours per day, 7 days per week, subject to any downtime for maintenance, updating, and repair. Notwithstanding the foregoing, Customer acknowledges and agrees that Provider shall have no responsibility for its inability to use the Services or access the Services due to network interruption, communications failure, or server downtime. Provider’s obligations with regard to support and a Service Level Agreement are set forth in Appendix A to this Agreement.

2. Term and Termination of the Agreement.

2.1 Term. The term of this Agreement shall commence on 06/17/2019 and shall continue for a one (1) year (the “Initial Term”) and will be renewed for another one year.

2.2 Termination. Any party may terminate this Agreement for any reason by providing sixty (60) days’ advance written notice. No part of the Fee shall be refunded in the event either party terminates the agreement. Provider in its discretion can terminate this agreement without notice in the event it determines that Customer or any Customer Employee User is misusing the Services or is misusing the Services in violation of any federal or state law.

2.2.2 Provider may suspend or terminate Customer’s use of the Services at any time without prior notice in order to: (a) prevent damages to, or degradation of, Provider’s Internet network integrity; (b) comply with any law, regulation, court order, or other governmental request or order which requires immediate action; or (c) otherwise protect Provider from potential legal liability. Provider shall use commercially reasonable efforts to notify Customer of the reasons for such suspension or termination action as soon as reasonably practicable after such action. In the event of a suspension, Provider shall promptly restore use of the Services to Customer as soon as the event giving rise to the suspension has been resolved. Nothing contained in this Agreement shall be construed to limit Provider’s action or remedies in any way with respect to any of the foregoing activities. Provider reserves the right to take any and all additional actions it may deem appropriate with respect to Customer’s use of the Services, including taking action to recover the costs and expenses of identifying offenders and excluding them from the Services, and levying cancellation charges to cover Provider’s expenses in the event of disconnection of dedicated access for the causes outlined above.

2.2.3 Upon termination of this Agreement for any reason, all outstanding amounts due Provider by Customer will immediately become due and payable. In addition, except for the provisions set forth in Paragraphs 5-10, 12-13 and 21, all rights and obligations of the parties hereunder will automatically cease. Furthermore, upon such termination, Customer and Users shall cease all use of Services and Provider shall deactivate Customer’s account and bar any further access to the site or the Services. Further, Customer agrees that Provider shall not be liable to Customer or any third party for any termination of this Agreement.

2.2.4 Termination shall not affect or prejudice any rights or other remedies that a party may have with respect to the event giving rise to the termination or any other rights or other remedies which a party may have with respect to any breach of this Agreement which existed at or before the date of termination.

2.3. Default. Customer shall be in default of this Agreement if Customer fails to make any payment when due and fails to cure said default within five (5) days after receipt of written notice thereof from Provider. In addition to the monetary breach described in the previous sentence, either party will be in default of this Agreement if the party is in material breach of this Agreement and fails to cure such breach within fifteen (15) days after receipt of written notice thereof from the non-breaching party. If a party is in default, the non-breaching party may terminate this Agreement or seek any other remedies available at law or in equity, except as otherwise provided in this Agreement. In the event Customer breaches or attempts to breach any of the provisions of this Agreement, Provider shall have the right, in addition to such other remedies that may be available, to injunctive relief enjoining such breach or attempt to breach, Customer hereby acknowledging the inadequacy of any remedy at law. In the event that either party terminates, the Agreement Customer shall pay all fees owed for the remainder of the term that is in effect. For example, if a 12-month agreement is in effect and Customer terminates in month 3 then Customer shall pay all Fees owed for months 3 through 12.

2.4. No Monetization of Any of The Services Permitted by Customer. Customer shall not be permitted to enter into any contracts with any third parties regarding such monetization of the Services without the express written consent of Provider.

3. Fees.

In exchange for using the Services, Customer shall pay fees to Provider during the term of this Agreement to subscribe to our subscriptions a listing of all such subscriptions for the Services and applicable fees can be found here: https://www.liono360.com/RequestPricing

4. Limited Rights; Ownership.

a. Provider grants to Customer and Customer accepts from Provider, a limited, revocable, non-exclusive, non-transferable right to access and use and permit Authorized Users and Customer Employee Users to access and use the Services solely for Customer’s internal business use. The Services shall not be used by Customer or by Authorized Users for, or on behalf of, third parties that are not authorized under this Agreement. Customer shall use its best efforts to ensure that the Authorized Users use the Services in accordance with the terms and conditions of this Agreement. Customer acknowledges that its right to use the Services will be web-based only pursuant to the terms of this Agreement and that the Services will not be installed on any servers owned or controlled by Customer or otherwise provided to Customer without Provider’s consent.

b. The use of the Services by Customer or any Authorized User or any other applicable website or other software used to access the Services pursuant to this Agreement shall be subject to the terms of this Agreement.

c. Non-Exclusive Service. Customer acknowledges that the SaaS Services is being provided on a non-exclusive basis. Nothing shall be deemed to prevent or restrict Provider’s ability to provide the SaaS Services or other technology, including any features or functionality to other parties.

d. Except as expressly provided herein, Provider shall have the sole and exclusive ownership of all right, title and interest in and to the Services and Provider Software, any enhancements thereto made by Customer, and any documentary or other materials regarding the use thereof and related thereto provided to Customer by Provider in whatever form or media. As between Provider and Customer, Provider shall remain the sole and exclusive owner of all right, title and interest in and to the Services and/or Provider Software and related documentation including, without limitation, any patents, patent applications, trademarks (whether registered or not), trade names and copyright in all territories. Neither this Agreement nor anything contained herein, shall be construed as a sale of the Services or any intellectual property right or title therein or thereto.

e. In the course of using the Provider Software under this Agreement, Customer shall not be permitted to modify any aspect of the Software or Services (“Work Product”) without written consent from Provider. Upon termination or expiration of this Agreement, Customer shall not retain any ownership or intellectual property rights to the Work Product. Customer hereby assigns and conveys to Provider any and all right, title or interest of any kind for anything developed or created by Customer in its use of the Provider Software, including any Derivative works of any Provider Software Product, and all such derivative works shall constitute works for hire such that title thereto shall vest in Provider. This Section shall survive the termination of this Agreement.

f. Hosting and Personal Data Center Facilities. The hosting and Personal Data center facilities supporting the Services delivered by Provider for usage by the Customer shall be provided for and managed by a third-party vendor (“third-party vendor”) not a party to this Agreement. Provider shall not be liable in respect of any breach or error in delivery, loss, damage or interruption to the Services during the Term of this Agreement caused by the third-party vendor. Customer shall immediately notify Provider, in writing as defined in Paragraph 22, of any such error, loss, breach, damage or interruption. Provider shall not be liable for any loss, damage or expense whatsoever and howsoever arising from any breach or error, loss, damage, defect or interruption to the Services caused by the third-party vendor.

g. Customer agrees that it will not itself, or through any parent, user, subsidiary, affiliate, agent or other third party do without Provider's prior written consent which Provider may withhold in its sole discretion any of the following, the occurrence of any one of which shall constitute a breach of this Agreement by Customer: (a) reverse engineer, disassemble, or decompile the Service Offerings or apply any other process or procedure to derive the source code of any software included in the Service Offerings, (b) copy, modify, adapt, alter, translate, disclose or create derivatives of the Service Offerings, Software or Provider’s Intellectual Property, including, but not limited to, providing, disclosing, divulging or making available to, or permitting access or use of, the Service Offerings, Software, or Provider’s Intellectual Property by, any third party or any non-Authorized User; (c) embed, incorporate, merge or combine the Service Offerings, Software or Provider’s Intellectual Property into any software, program, application, services, semiconductor chip or other hardware; (d) access or use the Service Offerings in a way intended to avoid incurring fees or exceeding usage limits or quotas, or (e) sell, re-sell, market, lease, rent, encumber, license, distribute, sublicense, give away or otherwise transfer the Service Offerings, Software or Services or any rights, title or interest to the Service Offerings, Software or Services to any other entity; (f) use any information derived from the Service Offerings, Software, or Provider’s Intellectual Property or derived from evaluating the Service Offerings, Software, or Provider’s Intellectual Property to create or cause to be created any other software program performing substantially the same function(s) as the Service Offerings, Software, or Provider’s Intellectual Property or functioning in substantially the same manner as the Service Offerings, Software, or Provider’s Intellectual Property; (g) Customer shall also not use the Services in any way that will violate HIPAA or any other federal or state laws pertaining to healthcare; or (i) disclose the results of the Software, Services, Provider’s Intellectual Property or Proprietary Information performance benchmarks, including without limitation Feedback, to any third party

h. The User Personal Data/Personal Data and Its Ownership. The information or Personal Data collected by Customer’s use of the Services which includes Customer Client Personal Information, Customer Employee User Personal Information and personally identifiable information (“PII“) about the Customer Client (collectively the “Personal Data”) which shall also be known and treated by all parties as “Confidential Information” shall include: (a) The Personal Data collected, used, processed, stored, or generated as the result of Customer’s use of the Services. (b) any personally identifiable information (“PII“) of any kind that identifies a Customer Client by his or her name, email address, telephone number, birth date, social security number, financial information and protected health information covered under HIPAA. The Personal Data is and shall remain the sole and exclusive property of the Customer Client unless Provider is requested by a government agency or authority, subpoena or court order to produce the Personal Data.

i. Provider and Customer’s Use of The Personal Data. Both Provider and Customer pursuant to the Services shall collect, process, and store the Personal Data only to the extent necessary in use of the Services. Both parties shall: (a) keep and maintain the Personal Data in strict confidence, using such degree of care as is appropriate and consistent with its obligations as further described in this Agreement and applicable law to avoid unauthorized access, use, disclosure, or loss; (b) use and disclose the Personal Data solely and exclusively in the use of the Services, (c) not use, sell, rent, transfer, distribute, or otherwise disclose or make available the Personal Data to third parties; (d) ensure that it uses the Personal Data solely and exclusively in the use of the Services.

j. Limited License to Customer Personal Data. Subject to the terms and conditions of this Agreement, Customer grants Provider a non-exclusive license to use, copy, store, transmit and display the Personal Data to the extent reasonably necessary to provide and maintain the Service.

k. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness of and copyright permissions for all Personal Data. Provider will not use the Personal Data for any purpose other than to provide the Services to Customer.

l. Provider will use commercially reasonable security measures to protect Personal Data against unauthorized disclosure or use.

m. All Personal Data accessible by Customer and Customer Employee’s Users in the Services has been designed, created and provided solely by Customer or its employees without the participation or involvement of Provider. Provider assumes no responsibility for the accuracy, propriety, or usefulness to Customer of such Personal Data. Provider provides no warranties, representations or indemnification to Customer for its access to, and use of, such Personal Data.

5. Customer’s Responsibilities

5.1 Assistance. Customer shall provide commercially reasonable information and assistance to Provider to enable Provider to deliver the SaaS Services. Upon request from Provider, Customer shall promptly deliver Customer Content (“Customer Content”) to Provider in an electronic format specified and accessible by Provider. Customer acknowledges that Provider’s ability to deliver the SaaS Services in the manner provided in this SaaS Agreement may depend upon the accuracy and timeliness of such information and assistance.

5.2 Compliance with Laws. Customer shall comply with all applicable local, state, national and foreign laws in connection with its use of the SaaS Services, including those laws related to Personal Data privacy, international communications, and the transmission of technical or Personal Data. Customer acknowledges that Provider exercises no control over the content of the information or Personal Data transmitted by Customer or by Customer Employee Users through the SaaS Services. Customer shall not upload, post, reproduce or distribute any information, software or other material protected by copyright, privacy rights, or any other intellectual property right without first obtaining the permission of the owner of such rights.

5.3 Unauthorized Use; False Information. Customer shall: (a) notify Provider immediately of any unauthorized use of any password or user id or any other known or suspected breach of security, (b) report to Provider immediately and use reasonable efforts to stop any unauthorized use of the SaaS Services that is known or suspected by Customer or any Customer Employee User, (c) not provide false identity information to gain access to or use the SaaS Services.

5.4 Suggestions. Provider shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the SaaS Services any suggestions, enhancement requests, recommendation or other feedback provided by Customer, including Users, relating to the operation of the SaaS Services

6. Confidentiality

Each party shall always keep confidential all confidential and proprietary information of the other party which is provided to the other party (or to which the other party has access) during the term of this Agreement ("Confidential Information"). Confidential Information shall include the “Services” “Software” “Service Offerings” “Provider’s Services” or the “Provider Software” and all related Intellectual Property. Neither party (without the prior written consent of the other party and/or as otherwise specified in this Agreement) shall use the other party's Confidential Information for any purpose other than for evaluation of the Software hereunder and will not disclose any such Confidential Information to any third parties. Each party agrees to exercise at least the same degree of care to safeguard the other party's Confidential Information as it does its own proprietary and confidential property of a similar nature. Moreover, Customer may not reverse engineer, decompile, or otherwise attempt to discover the source code for the Software, Services and/or Service Offerings. Customer may use the Services only for the purposes contemplated hereunder. All rights not specifically granted hereunder are reserved to Provider.

7. Intellectual Property

a. Customer acknowledges that all right, title, and interest in and to the Services and the Software, together with its codes, sequences, derivative works, organization, structure, interfaces, any documentation, Personal Data, trade names, trademarks, or other related materials collectively, the “Provider IP”), is, and at all times shall remain, the sole and exclusive property of Provider. The Provider IP contains trade secrets and proprietary information owned by Provider and is protected by United States copyright laws (and other laws relating to intellectual property). Except the right to use the Services, as expressly provided herein, this Agreement does not grant to Customer any rights to, or in, patents, copyrights, Personal Database rights, trade secrets, trade names, trademarks (whether registered or unregistered) or any other rights or licenses with respect to the Services or the Software. Customer shall not attempt, or directly or indirectly allow any Authorized User or other third parties to attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, reverse compile, disassemble, reverse engineer, download, transmit or distribute all or any portion of the Services and/or Software in any form or media or by any means. The provisions of this paragraph 7 shall survive termination of this Agreement.

b. Customer retains ownership of all materials, and the intellectual property rights in those materials, provided to Provider by or on behalf of Customer (“Customer Materials”).

c. The performance of the Services will require the use of Provider’s materials and methodologies that are considered proprietary, copyright, patent, and trade secret materials (“Provider Materials” or “Confidential Information”). Provider Materials include training materials, training videos, mobile and web applications, methodologies, pre-existing programs, instruments, models, proprietary information, patents, registered and unregistered trademarks, trade names, trade secrets, copyrights, prototypes, inventions, algorithms, designs, compilations, computer software programs, code, tools, Personal Databases, evaluation guides, report forms, scoring guides, scoring algorithms, scoring instructions, scoring software and norms. Provider may customize, modify, translate, or expand Provider Materials to apply to Customer’s unique requirements (collectively, a “Customization”). Customer may use the Provider Materials in the form provided for its internal purposes only; Customer may not use the Provider Materials for any other purpose or permit any other person, firm or entity to use the Customer Materials. Customer acknowledges that all right, title, and interest in and to the Provider Materials, is, and at all times shall remain, the sole and exclusive property of Provider.

d. If a Customization includes Customer Materials, Customer grants to Provider a limited, revocable, non-exclusive, and non-transferable license for the term of this SaaS Agreement to use the Customer Materials solely in connection with the Customization. Customer represents and warrants that it has all the necessary rights to include the Customer Materials in the Customization.

e. Provider always owns all Provider Materials and Confidential Information. Provider reserves all rights not expressly granted under this Agreement. Licenses to Provider Materials must be procured through a separate license agreement. This Agreement will not be construed as a license to copy, modify, create derivative works from, publish, disclose or otherwise use Provider Materials.

8. Provider’s Indemnification:

Provider hereby indemnifies Customer and shall hold it harmless from any loss, liability, damage, cost or expense (including reasonable counsel fees) arising out of any claims or suits which may be brought or made against Customer by reason of claims of patent, trademark, or copyright infringement, provided that Customer shall give prompt written notice, cooperation and assistance to Provider, at Provider's expense, relative to any such claim or suit, and provided, further, that Provider shall have the option to undertake and conduct the defense of any suit so brought. Provider shall have no liability for any claim based on (a) the Personal Data, PII, Customer Content, Customer Materials or other Personal Data or information supplied by Customer; (b) modification of the SaaS Services not authorized by Provider, or (c) use of the SaaS Services other than in accordance with this SaaS Agreement.

9. Customer’s Indemnification

(a) Customer will defend, indemnify, and hold Provider (and its officers, directors, employees and agents) harmless from and against all losses or claims and from any expense or cost arising out of or in connection with: (i) a claim, suit, action, or proceeding by a third party alleging that the Customer Content, Customer Materials, Personal Data, PII or other Personal Data or information supplied by Customer infringes upon the intellectual property rights or other rights of a third party or has caused harm to a third party; or (ii) breach by Customer of any of its obligations under this Agreement and also by Client’s misuse of the Customer Content, Customer Materials, Services, Software, Software Offerings, Personal Data, PII, Provider Materials, and Confidential Information;

(b) Customer will defend, indemnify, and hold Provider (and its officers, directors, employees and agents) harmless from any expense or cost arising from any third-party subpoena or compulsory legal order or process that seeks Customer Content, Customer Materials, Personal Data, PII and/or other Customer-related information or Personal Data, including, without limitation, prompt payment to Provider of all costs (including attorneys’ fees) incurred by Provider as a result. In case of such subpoena or compulsory legal order or process, Customer also agrees to pay Provider for its staff time in responding to such third party subpoena or compulsory legal order or process at Provider’s then applicable hourly rates.

(c) Customer will defend, indemnify, and hold Provider (and its officers, directors, employees and agents) harmless from any expense or cost as a result of Customer’s failure to pay all applicable taxes associated with Customer’s use of the Services.

(d) In case of any claim that is subject to indemnification under this Agreement, the party that is indemnified (“Indemnitee”) will provide the indemnifying party (“Indemnitor”) reasonably prompt notice of the relevant claim. Indemnitor will defend and/or settle, at its own expense, any demand, action, or suit on any claim subject to indemnification under this Agreement. Each party will cooperate in good faith with the other to facilitate the defense of any such claim and will tender the defense and settlement of any action or proceeding covered by this Section to the Indemnitor upon request. Claims may be settled without the consent of the Indemnitee unless the settlement includes an admission of wrongdoing, fault or liability.

10. Customer’s Representations

Customer is solely responsible for all aspects of its use of the Services and will assure that its conduct, all of its business, and other activities related to its use of the Services, Software, and Software Offerings is in compliance with all local, state, and federal laws, rules and regulations applicable to its business activities. Customer further represents that by signing this Agreement it will not be in violation of any other agreement.

11. Independent Contractors

The relationship of the Parties is that of independent contracting entities and nothing in this Agreement is intended nor shall be construed to create an employer/employee relationship, a principal/agent relationship or a partnership or joint venture relationship or to allow either to exercise control or direction over the manner or method by which the other transacts its business affairs or provides its usual services. Neither Party will have the power to bind the other Party or incur obligations on its behalf without the other Party's prior written consent.

12. DISCLAIMER OF WARRANTIES.

THE SERVICES, SOFTWARE, SERVICE OFFERINGS, PROVIDER SOFTWARE, UPDATES, OTHER PROPRIETARY AND CONFIDENTIAL INFORMATION OF PROVIDER AND/OR PROVIDER’S THIRD-PARTY SERVICES (HEREINAFTER COLLECTIVELY REFERRED TO AS "PROVIDER’S SERVICES") ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND.

CUSTOMER ASSUMES ALL RISKS AND RESPONSIBILITIES FOR SELECTION OF PROVIDER’S SERVICES TO ACHIEVE CUSTOMER'S INTENDED RESULTS, AND FOR THE INSTALLATION OF, USE AND PERFORMANCE OF, AND RESULTS OBTAINED FROM PROVIDER'S SERVICES. PROVIDER MAKES NO WARRANTY THAT (i) PROVIDER’S SERVICES WILL BE ERROR-FREE OR FREE FROM INTERRUPTION OR FAILURE; (ii) THE PROVIDER’S SERVICES, SOFTWARE, UPDATES OR DOCUMENTATION IS COMPATIBLE WITH ANY PARTICULAR HARDWARE OR SOFTWARE; (iii) THERE WILL BE NO INTERFERENCE WITH CUSTOMER'S ENJOYMENT OF PROVIDER’S SERVICES; OR (iv) PROVIDER’S SERVICES WILL FULFILL ANY OF CUSTOMER'S PARTICULAR PURPOSES OR NEEDS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROVIDER DISCLAIMS ALL EXPRESS, IMPLIED OR STATUTORY STANDARDS, GUARANTEES, REPRESENTATIONS OR WARRANTIES, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, REASONABLE CARE, WORKMANLIKE EFFORT, RESULTS, LACK OF NEGLIGENCE, ACCURACY OF INFORMATION OR RESULTS, TITLE AND NONINFRINGEMENT WITH RESPECT TO PROVIDER'S SERVICES, ANY WARRANTY OF THIRD PARTY SOFTWARE, PRODUCTS OR SERVICES, FUNCTIONALITY OF HARDWARE, SOFTWARE, FIRMWARE OR COMPUTER SYSTEMS OR ANY WARRANTIES THAT MAY BE ALLEGED TO ARISE AS A RESULT OF CUSTOM OR USAGE. CUSTOMER HEREBY ACKNOWLEDGES THAT PROVIDER'S SERVICES MAY NOT BE AVAILABLE OR MAY BECOME UNAVAILABLE DUE TO ANY NUMBER OF FACTORS INCLUDING, WITHOUT LIMITATION, PERIODIC SYSTEM MAINTENANCE, SCHEDULED OR UNSCHEDULED, ACTS OF GOD, TECHNICAL FAILURE OF PROVIDER'S SERVICES, TELECOMMUNICATIONS INFRASTRUCTURE, OR DELAY OR DISRUPTION ATTRIBUTABLE TO VIRUSES, DENIAL OF SERVICE ATTACKS, INCREASED OR FLUCTUATING DEMAND, ACTIONS AND OMISSIONS OF THIRD PARTIES, OR ANY OTHER CAUSE REASONABLY BEYOND THE CONTROL OF PROVIDER, THEREFORE, PROVIDER EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY REGARDING SYSTEM AND/OR SOFTWARE AVAILABILITY, ACCESSIBILITY, OR PERFORMANCE.

TO THE EXTENT PERMITTED BY LAW THE EXCLUSION OR LIMITATION OF CERTAIN WARRANTIES OR SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.

13. LIMITATION OF LIABILITY.

CUSTOMER ASSUMES THE ENTIRE COST OF ANY DAMAGES RESULTING FROM CUSTOMER'S USE OF PROVIDER'S SERVICES, THE INFORMATION CONTAINED IN OR COMPILED BY PROVIDER'S SERVICES, THE INTERACTION (OR FAILURE TO INTERACT PROPERLY) WITH ANY OTHER HARDWARE OR SOFTWARE WHETHER PROVIDED BY PROVIDER OR A THIRD PARTY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. IN NO EVENT WILL PROVIDER OR ITS SUPPLIERS BE LIABLE TO CUSTOMER FOR ANY CONSEQUENTIAL, SPECIAL, EXEMPLARY, INDIRECT, RELIANCE, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, REVENUE OR SAVINGS, BUSINESS INTERRUPTION, BUSINESS OPPORTUNITIES, LOSS OR CORRUPTION OF BUSINESS INFORMATION OR ANY PERSONAL DATA, LOSS OF GOODWILL, WORK STOPPAGE, HARDWARE OR SOFTWARE DISRUPTION, IMPAIRMENT OR FAILURE, REPAIR COSTS, TIME VALUE OR OTHER PECUNIARY LOSS, OR LOSS OF LIFE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION THE USE OR INABILITY TO USE PROVIDER'S SERVICES, OR THE INCOMPATIBILITY OF PROVIDER'S SERVICES WITH ANY HARDWARE, SOFTWARE OR USAGE, REGARDLESS OF THE LEGAL THEORY UNDER WHICH SUCH DAMAGES ARE SOUGHT, AND EVEN IF PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSS. TO THE EXTENT PERMITTED BY LAW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, OR SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU. IF ANY EXCLUSION, DISCLAIMER OR OTHER PROVISION CONTAINED IN THIS TERMS OF USE IS HELD TO BE INVALID FOR ANY REASON BY A COURT OF COMPETENT JURISDICTION AND PROVIDER BECOMES LIABLE THEREBY FOR LOSS OR DAMAGE THAT COULD OTHERWISE BE LIMITED PROVIDER’S TOTAL LIABILITY TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE TOTAL AMOUNT PAID TO THE PROVIDER UNDER THIS AGREEMENT FOR THE THREE MONTHS PRIOR TO A CLAIM OF DAMAGES BEING BROUGHT WHETHER IN CONTRACT, TORT OR OTHERWISE.

14.Non-waiver

No term or provision of this Agreement will be deemed waived and no breach will be deemed excused unless such waiver or consent will be in writing and signed by the party claimed to have waived or consented. No consent by any party to, or waiver of, a breach by the other will constitute a consent to, waiver of, or excuse for any different or subsequent breach.

15.Partial invalidity

If any provision of this Agreement is held to be unenforceable, the remaining provisions will continue in full force and effect. In addition, the parties or the court will modify any unenforceable provision so as to make it enforceable under applicable law, while keeping the modified provision as consistent as possible with the original intent of the parties.

16.Assignment

Customer shall not be permitted to assign any of its rights under this Agreement to any other entity (except the right to receive money) without the written consent of the other party. Provider shall be permitted to assign its rights under this Agreement to any successor entity of any kind.

17.Successors and assigns

This Agreement will inure to the benefit of and be binding upon the respective successors and assigns, if any, of the parties. Nothing in this paragraph will be construed to permit any attempted assignment that would be unauthorized pursuant to any other provision of this Agreement.

18.Entire agreement

This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof.

19. General Provisions & Force Majeure

(a) This Agreement, including any amendments and attachments hereto that are incorporated herein, constitute the entire agreement between the parties and shall be binding on the parties when accepted by Customer. No modification, termination or waiver of any provisions of this Agreement shall be binding upon a Party unless in writing signed by an authorized officer of the relevant Party(ies). No provision of any purchase order or other document issued by Customer, which purports to alter, vary, modify or add to the provisions of this Agreement, shall be binding upon Provider or effective for any purpose, unless accepted by Provider in writing It is further expressly understood and agreed that, there is no expectations to the contrary between the parties, no usage of trade or other regular practice or method of dealing either within either parties’ industry or between the parties shall be used to modify, interpret, supplement, or alter in any manner the express terms of this Agreement or any part thereof.

(b) Nothing contained in this Agreement shall be construed as creating a joint venture, partnership, or employment relationship between the parties, nor shall either Party have the right, power, or authority to create any obligation or duty, express or implied, on behalf of the other.

(c) The Software shall not be exported or re-exported in violation of any export provisions of the United States or any other applicable jurisdiction or to anyone on the U.S. Treasury Department's Specially Designated Nationals List or the U.S. Department of Commerce Denied Person’s List or Entity List.

(d) This Agreement may not be assigned, sublicensed or transferred, in whole or in part, by Customer without the prior written consent of Provider. Any attempted assignment, subletting or transfer shall be void.

(e) If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

(f) No delay or failure of Provider or Customer in exercising any right herein and no partial or single exercise thereof shall be deemed of itself to constitute a waiver of such right or any other rights herein. Any waiver by Provider or Customer of any breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent or other breaches.

In the event that either Party is unable to perform any of its obligations under this Agreement or to enjoy any of its benefits because of natural disaster, terrorism, fire, explosion, power blackout, earthquake, flood, the elements, strike, embargo, labor disputes, acts of civil or military authority, war, acts of God, acts or omissions of carriers or suppliers, acts of regulatory or governmental agencies, actions or decrees of governmental bodies or communication line failure not the fault of the affected Party or other causes beyond such Party’s reasonable control (a “Force Majeure Event”) the Party who has been so affected shall immediately give notice to the other Party and shall do everything possible to resume performance.

20. Applicable Law

By using the Services, you agree that the laws of the State of New Jersey, without regard to principles of conflict of laws, will govern this Agreement and any dispute of any sort that might arise between you and Provider.

21. Disputes

ANY DISPUTE RELATING IN ANY WAY TO YOUR USE OF THE SERVICES SHALL BE SUBMITTED TO CONFIDENTIAL BINDING ARBITRATION IN BURLINGTON COUNTY, NEW JERSEY EXCEPT FOR INTELLECTUAL PROPERTY CLAIMS BROUGHT BY EITHER PARTY (WHICH FOR PURPOSES OF THIS SECTION DO NOT INCLUDE PRIVACY AND PUBLICITY CLAIMS) AND CLAIMS THAT MAY BE BROUGHT IN SMALL-CLAIMS COURT.

CONFIDENTIAL ARBITRATION UNDER THIS AGREEMENT SHALL BE RESOLVED EXCLUSIVELY UNDER THE CONSUMER ARBITRATION RULES THEN PREVAILING OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA'S CONSUMER RULES"), EXCLUDING ANY RULES AND PROCEDURES GOVERNING OR PERMITTING CLASS OR REPRESENTATIVE ACTIONS. THE RULES ARE AVAILABLE AT THE AMERICAN ARBITRATION ASSOCIATION'S WEBSITE.

YOU AND PROVIDER AGREE TO EXPRESSLY WAIVE ANY RIGHTS TO FILE CLASS OR REPRESENTATIVE ACTIONS OR SEEK RELIEF ON A CLASS OR REPRESENTATIVE BASIS IN ANY JURISDICTION OR FORUM.

THE ARBITRATOR SHALL APPLY NEW JERSEY LAW, AND THE ARBITRATOR'S AWARD SHALL BE BINDING AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF COMPETENT JURISDICTION. THERE SHALL BE NO APPEAL FROM ANY AWARD OF THE ARBITRATOR. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO ARBITRATION UNDER THIS AGREEMENT SHALL BE JOINED TO AN ARBITRATION INVOLVING ANY OTHER PARTY SUBJECT TO THIS AGREEMENT, WHETHER THROUGH CLASS ARBITRATION PROCEEDINGS OR OTHERWISE. IF ANY PART OF THIS ARBITRATION PROVISION IS FOUND TO BE INVALID, UNENFORCEABLE OR ILLEGAL, THE REST OF THIS PROVISION SHALL REMAIN IN EFFECT.

IF THE ENTIRE ARBITRATION PROVISION IS FOUND TO BE INVALID OR UNENFORCEABLE, THEN THE PARTIES CONSENT TO PERSONAL JURISDICTION AND EXCLUSIVE VENUE IN THE STATE AND FEDERAL COURTS IN OR CLOSEST TO BURLINGTON COUNTY, NEW JERSEY.

If you initiate the arbitration, your arbitration fees will be limited to the filing fee set forth in the AAA's Consumer Rules.

22. Notices:

Notice by either party will be given first by electronic mail (i.e., email), then by personal delivery or overnight courier, effective upon receipt, or certified mail, return receipt requested, to the address of the recipient stated herein (or such other address as may be designated under this paragraph), and all such notices shall be effective upon receipt.

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