Terms & Conditions

Software End User License Agreement

This End User License Agreement, including the Order Form (as defined below), which by this reference is incorporated herein (this “Agreement”), is a binding agreement between MoneyThumb, LLC, a California limited liability company (“Licensor”) and the person or entity identified on the Order Form as the licensee of the Software (“Licensee”).

LICENSOR PROVIDES THE SOFTWARE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT LICENSEE ACCEPTS AND COMPLIES WITH THEM. BY CHECKING THE “ACCEPT” BOX YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT LICENSEE IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER; AND (II) IF LICENSEE IS A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF LICENSEE AND BIND LICENSEE TO ITS TERMS. IF LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, LICENSOR WILL NOT AND DOES NOT LICENSE THE SOFTWARE TO LICENSEE AND YOU MUST NOT DOWNLOAD AND/OR INSTALL THE SOFTWARE OR DOCUMENTATION.

NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR’S SOFTWARE.

 

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

 

(a)            Authorized Users” means solely those individuals authorized to use the Software pursuant to the license granted under this Agreement, as set forth on the Order Form.

(b)            Documentation” means user manuals, technical manuals and any other materials provided by Licensor, in printed, electronic, or other form, that describe the installation, operation, use, or technical specifications of the Software.

(c)            Licensee” has the meaning set forth in the preamble.

(d)            License Fees” means the license fees, including all taxes thereon, paid or required to be paid by Licensee for the license granted under this Agreement.

(e)            Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

(f)             Licensor” has the meaning set forth in the preamble.

(g)            Licensee Data” means information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Licensee or an Authorized User by or through the Software, or that incorporates or is derived from the processing of such information, data or content by or through the Software.

(h)            Order Form” means the online or paper order form filled out and submitted by or on behalf of Licensee, and accepted by Licensor, for Licensee’s purchase of the license for the Software granted under this Agreement.

(i)             Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.

(j)             Software” means the software programs for which Licensee is purchasing a license, as expressly set forth in the Order Form, including Hosted Software (as defined below), as applicable.

(k)            Term” has the meaning set forth in Section 14.

(l)             Third Party” means any Person other than Licensee or Licensor.

(m)           Update” has the meaning set forth in Section 10.

 

2.          License Grant and Scope. Subject to and conditioned upon Licensee’s payment of the License Fees and Licensee’s strict compliance with all terms and conditions set forth in this Agreement, Licensor hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable, limited license during the Term to use, solely by and through its Authorized Users, the Software and Documentation, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 7 or elsewhere in this Agreement. This license grants Licensee the right, exercisable solely by and through Licensee’s Authorized Users, to:

 

(a)            With respect to any Software that is distributed or provided to Licensee for use on Licensee premises or computers:

                                   (i)              Download and install in accordance with the Documentation one (1) copy of the Software on up to three (3) computers owned or leased, and controlled by, Licensee.  Unless the Order Form expressly states that Licensee is purchasing a network license, each such computer shall be for a single Authorized User. In addition to the foregoing, Licensee has the right to make one (1) copy of the Software solely for archival purposes and one (1) copy of the Software solely for backup purposes, provided that Licensee shall not, and shall not allow any Person to, install or use any such copy other than if and for so long as such copy installed in accordance with the preceding sentence is inoperable and, provided, further, that Licensee uninstalls and otherwise deletes such inoperable copy(ies). All copies of the Software made by the Licensee: (i) shall be the exclusive property of the Licensor; (ii) shall be subject to the terms and conditions of this Agreement; and (iii) must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.

                                  (ii)              Use and run the Software as properly installed in accordance with this Agreement and the Documentation, solely as set forth in the Documentation and solely for Licensee’s internal business purposes. Such use is permitted only on the computer on which the Software is installed, at the physical location thereof and not via any remote access or other network.

                                 (iii)              Download or otherwise make one (1) copy of the Documentation and use such Documentation solely in support of its licensed use of the Software in accordance herewith. All copies of the Documentation made by Licensee: (i)  shall be the exclusive property of Licensor; (ii)  shall be subject to the terms and conditions of this Agreement; and (iii)  must include all trademark, copyright, patent, and other Intellectual Property Rights notices contained in the original.

                                 (iv)              Transfer any copy of the Software from one computer to another, provided that: (i) the number of computers on which the Software is installed at any one time does not exceed the number permitted under Section 2; and (ii)  Licensee notifies Licensor in writing of each such transfer, including in such notice the information required under this EULA for each computer on which the Software is installed.

(b)            With respect to any Software that is hosted and managed by Licensor for remote electronic access and use by Licensee and its Authorized Users (“Hosted Software”):

                                   (i)              Use and run the Hosted Software in accordance with this Agreement and the Documentation, solely as set forth in the Documentation and solely for Licensee’s internal business purposes.  

 

3.          System Control.  Except as otherwise provided in this Agreement, as between the parties: (a) Licensor has and will retain sole control over the operation, provision and management of the Hosted Software; and (b) Licensee has and will retain sole control over the operation, maintenance and management of, and all access and use of, Licensee’s systems, and sole responsibility for all access to and use of the Software by or through Licensee’s systems or any other means controlled by Licensee or any Authorized User, including, without limitation, any (i) information, instructions or materials provided by any of them to the Software or Licensor, including, without limitation Licensee Data, (ii) results obtained from any use of the Software, including without limitation, Licensee Data, and (iii) conclusions, decisions or actions based on such use. 

 

4.          Access and Security. Licensee has and will retain sole responsibility for: (a) all Licensee Data, including its content and use; (b) all information, instructions and materials provided by or on behalf of Licensee or any Authorized User in connection with the Software, including Licensee Data; (c) Licensee’s information technology infrastructure, including computers, software, databases, electronic systems (including database management systems) and networks, whether operated directly by Licensee or through the use of third-party services; (d) the security and use of Licensee’s and its Authorized Users’ access to the Software, including access credentials, logins and passwords; (e) all access to and use of the Software directly or indirectly by or through Licensee’s systems or its Authorized Users’ access credentials, logins or passwords, with or without Licensee’s knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.  Licensee shall employ all physical, administrative and technical controls, screening and security procedures and other safeguards necessary to: (i) securely administer distribution and use of all of its Authorized Users’ access credentials, logins and passwords; (ii) control the content and use of Licensee Data, including the uploading or other provision of Licensee Data to the Software.  Licensee acknowledges and agrees that Licensor shall not be responsible for any unauthorized use of, or access to, Licensee Data.

 

5.          Licensee Data.  As between the parties, Licensee is and will remain the sole and exclusive owner of all right, title and interest in and to Licensee Data, including all Intellectual Property Rights relating thereto. Licensee hereby irrevocably grants to Licensor all such rights and permissions in or relating to Licensee Data as are necessary or useful to enforce this Agreement and exercise its rights and perform its obligations hereunder.  The Software does not replace the need for Licensee to maintain regular data backups or redundant data archives.  LICENSOR SHALL NOT BE RESPONSIBLE FOR STORING, BACKING UP OR ARCHIVING LICENSEE DATA AND LICENSOR SHALL HAVE NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION OR RECOVERY OF LICENSEE DATA. 

 

6.          Third-Party Materials. The Software may include software, content, data, or other materials, including related documentation, that are owned by Persons other than Licensor and that are provided to Licensee on licensee terms that are in addition to and/or different from those contained in this Agreement (“Third-Party Licenses”). A list of all materials, if any, included in the Software and provided under Third-Party Licenses, is included in the Documentation or other printed or electronic materials provided by Licensor. Licensee is bound by and shall comply with all Third-Party Licenses. Any breach by Licensee or any of its Authorized Users of any Third-Party License is also a breach of this Agreement.

 

7.          Use Restrictions. Licensee shall not, and shall require its Authorized Users not to, directly or indirectly: (a) access or use (including make any copies of) the Software or Documentation beyond the scope of the license granted hereunder; (b)  except as may be permitted herein and strictly in compliance with this Agreement, provide any other Person, including any subcontractor, independent contractor, affiliate, or service provider of Licensee, with access to or use of the Software or Documentation; (c)  modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof; (d)  combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs; (e)  reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Software or any part thereof; (f)  remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof; (g)  except as expressly set forth herein, copy the Software or Documentation, in whole or in part; (h)  rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software, or any features or functionality of the Software, to any Third Party for any reason, whether or not over a network or on a hosted basis, including in connection with the internet or any web hosting, wide area network (WAN), virtual private network (VPN), virtualization, time-sharing, service bureau, software as a service, cloud or other technology or service; (i)  access or use the Software or Documentation in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems, including, power generation systems, aircraft navigation or communication systems, air traffic control systems, or any other transport management systems, safety-critical applications, including medical or life-support systems, vehicle operation applications, or any police, fire, or other safety response systems and military or aerospace applications, weapons systems, or environments; (j)  access or use the Software or Documentation in, or in association with, the design, construction, maintenance or operation of any hazardous environments or systems; (k) access or use the Software or Documentation in violation of any law, regulation, or rule; (l)  access or use the Software or Documentation for purposes of competitive analysis of the Software, the development of a competing software product or service, or any other purpose that is to the Licensor’s commercial disadvantage; or (m) access or use the Software in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party.

 

8.          Responsibility for Use of Software. Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement.

 

9.          Compliance Measures.

 

(a)            The Software may contain technological copy protection or other security features designed to prevent unauthorized use of the Software, including features to protect against any use of the Software that is prohibited under this Agreement. Licensee shall not, and shall not attempt to, remove, disable, circumvent, or otherwise create or implement any workaround to, any such copy protection or security features. Upon Licensor’s written request, Licensee shall conduct a review of its and its Authorized Users use the Software and certify to Licensor in a written instrument signed by an officer of Licensee that it is in full compliance with this Agreement or, if Licensee discovers any noncompliance: (a) Licensee shall immediately remedy such noncompliance and provide Licensor with written notice thereof; and (b) Licensee shall provide Licensor with all access and assistance as Licensor requests to further evaluate and remedy such noncompliance. If Licensee’s use of the Software exceeds the number of copies or Authorized Users permitted under the license, Licensor shall have the remedies set forth in this Section 9.

 

(b)            During the Term, Licensor may, in Licensor’s sole discretion, monitor Licensee’s use of the Software to ensure Licensee’s compliance with this Agreement.  Licensor also may, in its sole discretion, audit Licensee’s systems within twenty four (24) months after the end of the Term to ensure that Licensee has ceased use of the Software and removed the all copies of the Software from such systems as required hereunder. Licensee shall fully cooperate with Licensor’s personnel conducting such monitoring and provide all reasonable access requested by Licensor to records, systems, equipment, information, and personnel, including machine IDs, serial numbers and related information. Licensor shall only examine information directly related to the Licensee’s use of the Software. Such monitoring shall not unreasonably interfere with the Licensee’s business operations.

 

(c)            If any of the measures taken or implemented under this Section determines that the Licensee’s use of the Software exceeds or exceeded the use permitted by this Agreement then Licensee shall, within five (5) days following the date of Licensor’s written notification thereof, pay to Licensor the retroactive License Fees for such excess use and, unless Licensor terminates this Agreement pursuant to this Section 9, obtain and pay for a valid license to bring Licensee’s use into compliance with this Agreement. In determining the Licensee Fee payable pursuant to the foregoing, (a) unless Licensee can demonstrate otherwise by documentary evidence, all excess use of the Software shall be deemed to have commenced on the commencement date of this Agreement or, if later, the completion date of any audit previously conducted by Licensor hereunder, and continued uninterrupted thereafter, and (b) the rates for such licenses shall be determined without regard to any discount to which Licensee may have been entitled had such use been properly licensed prior to its commencement (or deemed commencement). If the use exceeds or exceeded the use permitted by this Agreement, then Licensor shall have the right to terminate this Agreement and the license granted hereunder, effective immediately upon written notice to Licensee. Licensor’s remedies set forth in this Section 9 are cumulative and are in addition to, and not in lieu of, all other remedies the Licensor may have at law or in equity, whether under this Agreement or otherwise.

 

10.        Maintenance and Support.

 

(a)            Subject to Section 10(c), the license granted hereunder entitles Licensee to basic software maintenance and support services for ninety (90) days following Licensor’s initial use of the Software and thereafter, solely if Licensee purchases additional support services from Licensor.  Licensee acknowledges and agrees that Licensor provides such basic software maintenance and support services through electronic communications and/or the web, and such software maintenance and support services shall not include telephone or in-person support services.

(b)            Maintenance and support services will include provision of such updates, upgrades, bug fixes, patches and other error corrections (collectively, “Updates”) as Licensor makes generally available free of charge to all licensees of the Software then entitled to maintenance and support services. Licensor may develop and provide Updates in its sole discretion, and Licensee agrees that Licensor has no obligation to develop any Updates at all or for particular issues. Licensee further agrees that all Updates will be deemed Software, and related documentation will be deemed Documentation, all subject to all terms and conditions of this Agreement. Licensee acknowledges that Licensor may provide some or all Updates via download from a website designated by Licensor and that Licensee’s receipt thereof will require an internet connection, which connection is Licensee’s sole responsibility. Licensor has no obligation to provide Updates via any other media. Maintenance and support services do not include any new version or new release of the Software that Licensor may issue as a separate or new product, and Licensor may determine whether any issuance qualifies as a new version, new release or Update in its sole discretion.

 

(c)            Licensor reserves the right to condition the provision of maintenance and support services, including all or any Updates, on Licensee’s registration of the copy of Software for which support is requested. Licensor has no obligation to provide maintenance and support services, including Updates: (i) for any but the most current version or release of the Software; (ii) for any copy of Software for which all previously issued Updates have not been installed; (iii) if Licensee is in breach under this Agreement; or (iv) for any Software that has been modified other than by or with the authorization of Licensor, or that is being used with any hardware, software, configuration or operating system not specified in the Documentation or expressly authorized by Licensor in writing.

 

11.        Collection and Use of Information.

 

(a)            Licensee acknowledges and agrees that Licensor may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Software and Documentation and about equipment on which the Software and Documentation is installed or through which it otherwise is accessed and used, through: (i) the provision of maintenance and support services; and (ii) security measures included in the Software as described in Section 9.

(b)            Licensee acknowledges and agrees that the Licensor may use such information for any purpose related to any use of the Software and Documentation by Licensee or on Licensee’s equipment, including but not limited to: (i) improving the performance of the Software or developing Updates; and (ii) verifying Licensee’s compliance with the terms of this Agreement and enforcing the Licensor’s rights, including all Intellectual Property Rights in and to the Software and Documentation.

 

12.        Intellectual Property Rights.  Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement, or any other rights thereto other than to use the same in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. Licensor, and its licensors and service providers, as applicable, reserve and shall retain their entire right, title and interest in and to the Software and Documentation and all Intellectual Property Rights arising out of or relating to the Software and Documentation, except as expressly granted to the Licensee in this Agreement. Licensee shall use commercially reasonable efforts to safeguard all Software and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access. Licensee shall promptly notify Licensor if Licensee becomes aware of any infringement of the Licensor’s Intellectual Property Rights in the Software or Documentation and fully cooperate with Licensor, at Licensor’s sole expense, in any legal action taken by Licensor to enforce its Intellectual Property Rights

 

13.        Payment. All License Fees are payable in advance in the manner set forth in the Order Form and are non-refundable, except as may be expressly set forth herein. Without limiting the generality of the foregoing, Licensee Fees related to subscriptions are pre-paid and non-refundable. Any renewal of the license hereunder shall not be effective until the License Fees for such renewal have been paid in full.

 

14.        Term and Termination.

 

(a)            This Agreement and the license granted hereunder shall remain in effect until terminated as set forth herein (the “Term”). Licensor may terminate this Agreement, effective upon written notice to Licensee, if Licensee, breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured three (3) days after Licensor provides written notice thereof. Licensor may terminate this Agreement, effective immediately, if Licensee files, or has filed against it, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property. 

(b)            If Licensee has purchased a subscription to the Software (a “Subscription”), the Term of each Subscription shall be as specified in the applicable Order Form.  Unless otherwise specified in the applicable Order Form, Subscriptions will automatically renew for an additional Subscription term equal to the expiring Subscription term, until such Subscriptions are cancelled in accordance with this Section 14.  Licensee may terminate this Agreement by ceasing to use and destroying all copies of the Software and Documentation; provided, however, for all Subscriptions, Licensee must cancel such Subscriptions prior to the end of the applicable Subscription term specified in the applicable Order Form, in order to avoid billing of License Fees for the next Subscription term.  

(c)            Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using and destroy all copies of the Software and Documentation. No expiration or termination shall affect Licensee’s obligation to pay all Licensee Fees that may have become due before such expiration or termination, or entitle Licensee to any refund.  Sections 1, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20 and 21 shall survive any termination or expiration of this Agreement.

 

15.        Warranty Disclaimer.  THE SOFTWARE AND DOCUMENTATION (INCLUDING ANY RESULTS FROM THE SOFTWARE) ARE PROVIDED TO LICENSEE “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, LICENSOR, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND ITS AND THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE PRACTICE. WITHOUT LIMITATION TO THE FOREGOING, THE LICENSOR PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE LICENSED SOFTWARE WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.

 

16.        Limitation of Liability.  TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:

 

(a)         IN NO EVENT SHALL LICENSOR OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SOFTWARE, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

(b)         IN NO EVENT WILL LICENSOR’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE TOTAL AMOUNT PAID TO THE LICENSOR PURSUANT TO THIS AGREEMENT FOR THE SOFTWARE. THE LIMITATIONS SET FORTH IN THIS SECTION 16 SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

 

17.        Export Regulation. The Software and Documentation may be subject to US export control laws, including the US Export Administration Act and its associated regulations. The Licensee shall not, directly or indirectly, export, re-export, or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. The Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Software or Documentation available outside the US.

 

18.        US Government Rights. The Software is commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if the Licensee is the US Government or any contractor therefor, Licensee shall receive only those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.

 

19.        Confidential Information. 

(a)            In connection with this Agreement, Licensor (as the “Disclosing Party”) may disclose or make available to Licensee (as the “Receiving Party”) Confidential Information.  For purposes of this Agreement, “Confidential Information” shall mean information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including, without limitation, information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, products, pricing and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential.” Confidential Information shall not include information that the Receiving Party can demonstrate by written or other documentary records: (i) was rightfully known to the Receiving Party without restriction on use or disclosure prior to disclosure to Receiving Party hereunder; (ii) was or becomes generally known by the public other than by the Receiving Party’s or any of its representative’s noncompliance with this Agreement; (iii) was or is received by the Receiving Party on a non-confidential basis form a Third Party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (iv) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.

(b)            The Receiving Party shall: (i) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (ii) except as may be permitted under this Agreement, not disclose or permit access to Confidential Information other than to its representatives who (A) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under this Agreement, (B) have been informed of the confidential nature of the Confidential Information, and (C) are bound by written confidentiality and restricted use obligations at least as protected of the Confidential Information as the terms set forth in this Section; (iii) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care that it uses to protect is similarly sensitive information and in no event less than a reasonable degree of care; (iv) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take commercially reasonable steps to prevent further unauthorized use or disclosure; and (v) ensure its representatives’ compliance with, and be responsible and liable for any of its representatives’ non-compliance with the terms of this Section.

(c)            If the Receiving Party or any of its representatives is compelled by applicable law to disclose any Confidential Information, then, to the extent permitted by applicable Law, the Receiving Party shall: (i) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement, so that the Disclosing Party can seek a protective order or other remedy or waive its rights under this Section; and (ii) provide reasonable assistance to the Disclosing Party, in opposing such disclosure or seeking a protective order or other limitations on disclosure.  If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section, the Receiving Party remains required by Law to disclose any Confidential Information, then the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.

20.        Indemnification.  Licensee shall indemnify, defend and hold harmless Licensee and each of its affiliates, officers, employees, agents, successors and assigns (each an “Indemnified Party”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder, incurred by an Indemnified Party in connection with any claim, suit, action or proceeding by a third party that arise out of or relate to any: (a) Licensee Data, including, without limitation, any use or processing of Licensee Data by or through the Software; (b) any breach by Licensee of its representations, warranties, covenants or obligations under this Agreement; or (c) negligence or more culpable act or omission (including recklessness or willful misconduct) by Licensee, any Authorized User, or any third party on behalf of Licensee or any Authorized User, in connection with this Agreement.  The Indemnified Party shall promptly notify Licensee in writing of any claim, suit, action or proceeding for which the Indemnified Party believes it is entitled to be indemnified pursuant to this Section 20.  The Indemnified Party shall cooperate with Licensee at Licensee’s sole cost and expense.  Licensee shall immediately take control of the defense and investigation of such claim, suit, action or proceeding and shall employ counsel reasonably acceptable to the Indemnified Party to handle and defend the same, at Licensee’s sole cost and expense.  The Indemnified Party’s failure to perform any obligations under this Section 20 shall not relieve Licensee of its obligations under this Section 20, except to the extent that Licensee can demonstrate that it has been materially prejudiced as a result of such failure.  The Indemnified Party may participate in and observe such claim, suit, action or proceedings at its own cost and expense with counsel of its own choosing.  Licensee shall not settle such claim, suit, action or proceeding without the prior written consent of the Indemnified Party.

 

21.        Miscellaneous.

(a)         This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the city of San Diego and County of San Diego, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.

(b)          Licensor shall not be responsible or liable to Licensee, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or Licensee equipment, loss and destruction of property or any other circumstances or causes beyond Licensor’s reasonable control.

 (c)        All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (i) when delivered by hand (with written confirmation of receipt); (ii) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (iii) on the date sent by facsimile (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (iv) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective parties at the addresses set forth on the Order Form (or to such other address as may be designated by a party from time to time in accordance with this Section 21).

 (d)        This Agreement, together with all other documents that are incorporated by reference herein, constitutes the sole and entire agreement between Licensee and Licensor with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

 (e)        Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Licensor’s prior written consent, which consent Licensor may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Licensor’s prior written consent is required. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 21(e) is void. Licensor may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

 (f)        This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

 (g)        This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

(h)         If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

 (i)         For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

[End of Agreement.]

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