Master Subscription And Services Agreement

This master subscription agreement (“agreement”) governs:

·         YOUR free trial of the Services.

·         YOUR Use of the Services as a subcontractor to a paid subscriber to the services

·         If YOU purchase our Services, YOUR purchase and ongoing Use of those services.

By clicking a box indicating YOUR acceptance of this agreement, signing a proposal that references this agreement, signing an order form that references this agreement, or Using the solution described in the agreement; YOU agree to the terms of this agreement. If YOU are entering this agreement on behalf of a company or other legal entity, YOU represent that YOU have the authority to bind such entity and its affiliates to these terms and conditions, in which case the terms "YOU" or "YOUR" shall refer to such entity and its affiliates. If YOU do not have such authority, or if YOU do not agree with these terms and conditions, YOU must not accept this agreement and may not Use the services.

YOU may not access the Services if YOU are Our direct competitor, except with Our prior written consent. In addition, YOU may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. This Agreement was last updated on April 4th, 2016

It is effective between YOU and US as of the date of YOU accepting this Agreement.

1.     DEFINITIONS

1.1.          "Affiliate" shall mean any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

1.2.          Agreement” shall mean this Master Subscription Agreement.

1.3.          Beta Services” shall mean our services that have been identified as beta.

1.4.          Confidential Information” shall mean all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.

1.5.          Content” shall mean information obtained by US from Our content licensors or publicly available sources and provided to YOU pursuant to an Order Form, as more fully described in the Documentation.

1.6.          Documentation” shall mean Our online documentation, training materials, and videos, as updated from time to time, accessible via Our website.

1.7.          EULA” shall mean the end User licensing agreements for the applications included in the Services. The EULA for Connected Business is provided as Exhibit B in this agreement.

1.8.          Malicious Code” shall mean code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.

1.9.          "Third-Party Applications" shall mean products that are provided by third parties, interoperate with Our Services, and are identified as third-party applications.

1.10.     AuditProof Licensed Application” shall mean a read only, single User, locally installed copy of the Third Party Application that contains YOUR Accounting information as would be required in a third party financial audit.

1.11.     Third party services” shall mean services offered by third parties that may be accessed by YOU from within the Services.

1.12.     Terms of Service Agreement” shall mean a document specifying the technical terms of services provided under this agreement between YOU and US and is provided as Exhibit A in this agreement.

1.13.     Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between YOU and US, including any addenda and supplements thereto.

1.14.     "Purchased Services" means Services that YOU purchase under an Order Form, as distinguished from those provided pursuant to a free trial.

1.15.     Services” shall mean the products and services that are ordered by YOU under a free trial or Order Form and made available by US, as described in the Documentation.

1.16.     Users" shall mean individuals who are authorized by YOU to Use the Services, for whom subscriptions to a Service have been purchased, and who have been supplied User identifications and passwords by YOU (or by US at YOUR request). Users may include but are not limited to YOUR employees, consultants, contractors and agents; or third parties with which YOU transact Business.

1.17.     "We," "US" or "Our" shall mean Interprise Software Solutions which is located at 6167 Bristol Parkway Suite #340 Culver City, CA 90230.

1.18.     "YOU" or "YOUR" means the company or other legal entity for which YOU are accepting this Agreement, and Affiliates of that company or entity.

1.19.     YOUR Data” means electronic data and information submitted by or for YOU to the Purchased Services or collected and processed by or for YOU Using the Purchased Services

2.     FREE TRIAL PERIOD

2.1.          We will make one or more Services available to YOU on a trial basis free of charge until the earlier of (a) the agreed upon free trial period ends or (b) the start date of any Purchased Services ordered by YOU.

2.2.          Any data YOU enter into the services, and any customizations made to the services by or for YOU, during YOUR free trial period will be permanently lost unless YOU purchase a subscription to the same services as those covered by the trial, purchase upgraded services, or export such data, before the end of the free trial period.

2.3.          Notwithstanding Section 11 (Representations, Warranties, Exclusive Remedies and Disclaimers), during the free trial period, the services are provided “as-is” without any warranty.

2.4.          Please review the Documentation, Online Training Courses, and ask questions in our community forum during the trial period so that YOU become familiar with the features and functions of the Services before YOU make YOUR purchase.

3.     PURCHASED SERVICES

3.1.          Provision of Purchased Services. We shall make the Purchased Services available to YOU pursuant to the acceptance of this Agreement, the relevant Order Forms during a subscription term, the Terms of Service Agreement, and the acceptance of the EULA. YOU agree that YOUR purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by US regarding future functionality or features, unless a description of such functionality or features are attached to this agreement or order forms provided by US and signed by both parties. YOU assume all responsibility for the selection of the Software as appropriate to achieve the results YOU intend and for the Use of, and results obtained from the Software.

3.2.          Subscriptions. Unless otherwise provided in the applicable Order Form, (a) Services and Content are purchased as subscriptions, (b) subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions.

3.3.          Usage Limits. Services and Content are subject to Usage limits, including, for example, the quantities specified in Order Forms and as listed in the Terms of Service Agreement. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service or Content may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing Use of the Service or Content. If YOU exceed a contractual Usage limit, We may work with YOU to seek to reduce YOUR Usage so that it conforms to that limit. If, notwithstanding Our efforts, YOU are unable or unwilling to abide by a contractual Usage limit, YOU will execute an Order Form for additional quantities of the applicable Services or Content promptly upon Our request, and/or pay any invoice for excess Usage in accordance with Section 6.2 (Invoicing and Payment)

3.4.          Professional Services. WE will deliver services based on the description of services listed in the Quotation, Order Form, and/or Invoice.  In some cased a proposal with detailed specifications of service will be referenced in the Quotation, Order Form, and/or Invoice.

4.     OUR RESPONSIBILITES

4.1.          Our Responsibilities. We will (a) make the Services and Content available to YOU pursuant to this Agreement, the applicable Order Forms, and the Terms of Service Agreement, (b) provide to YOU basic support for the Purchased Services at no additional charge as described in our Support Service brochure that can be found at www.connectedBusiness.com/support, and (c) Use commercially reasonable efforts to make the online Purchased Services available as detailed in the Terms of Service Agreement.

4.2.          Backups. We will back-up YOUR data in accordance with our Terms of Service Agreement. Our backups are intended only to recover from system failure. Our backups are not intended for restoration of files to individual web sites. We do not represent or guarantee that the databases or files contained in the backup are the most recent copies for a given database or web site.An hourly fee will be charged to restore any backups.

4.3.          Performance of services. The manner in which the Services are to be performed and the specific hours to be worked by US or a Third Party Partner shall be determined by US or the Third Party Partner. 

5.     YOUR RESPONSIBILITES

5.1.          YOUR Responsibilities. YOU shall (a) be responsible for YOUR Users compliance with this Agreement, (b) be solely responsible for the accuracy, quality, integrity and legality of YOUR Data and of the means by which YOU acquired YOUR Data, (c) Use commercially reasonable efforts to prevent unauthorized access to or Use of the Services, and notify US promptly of any such unauthorized access or Use, and (d) Use the Services only in accordance with the User Guide and applicable laws and government regulations. YOU shall not (a) make the Services available to anyone other than YOUR Users, (b) sell, resell, rent or lease the Services, (c) Use the Services to store or transmit infringing, or to store or transmit material in violation of third-party privacy rights, or otherwise unlawful material, (d) Use the Services to store or transmit MalicioUS Code, (e) Use the Services to send spam email, (f) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, or (g) attempt to gain unauthorized access to the Services or their related systems or networks.

5.2.          Web site Content and Management. Web site construction and management is YOUR responsibility. We are not responsible for web site management or files lost or damaged by YOU. We recommends that YOU maintain backups of content outside of the Service .

5.3.          Usage Limitations. Services may be subject to other limitations, such as, for example, limits on the number of calls YOU are permitted to make against Our application programming interface, and, for Services that enable YOU to connect to third party websites, third party marketplaces, and other data feeds. Any such limitations are specified in the Terms of Service Guide.

6.     FEES AND PAYMENT FOR PURCHASED SERVICES

6.1.          Fees. YOU will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (a) fees are based on Services and Content purchased and not actual Usage, (b) payment obligations are non-cancelable and fees paid are non-refundable, and (c) quantities purchased cannot be decreased during the relevant subscription term.

6.2.          Invoicing and Payment. YOU will provide US with valid and updated credit card information, or alternative document reasonably acceptable to US. If YOU provide credit card information to US, YOU authorize US to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 8.2 (Term of Purchased User Subscriptions). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice YOU in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due on the invoice date. YOU are responsible for providing complete and accurate billing and contact information to US and notifying US of any changes to such information.

6.3.          Overdue Charges. If any invoiced amount is not received by US by the due date, then without limiting Our rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).

6.4.          Suspension of Service and Acceleration. If any amount owing by YOU under this or any other agreement for Our services is 10 or more days overdue (or 7 or more days overdue in the case of amounts YOU have authorized US to charge to YOUR credit card), We may, suspend Our services to YOU until such amounts are paid in full. We will give YOU at least 5 days’ prior notice that YOUR account is overdue, before suspending services to YOU.

6.5.          Retainer for Professional Services. YOU will pay a retainer to US for the Services based on the estimated required hours with the hourly rate to complete the project or for the first two week of professional services as stated in the Quotation, Order Form, and/or Invoice.  This retainer fee shall be payable upon quote approval. This retainer is non-refundable. WE shall bill first to the retainer for the completed hours each week. If the remaining retainer value drops below the amount necessary to cover the estimated work performed until the next billing cycle, YOU will be required to add funds to the retainer based on good faith estimates. At no time will WE be required to provide Services to YOU under this agreement when the retainer value drops below the amount necessary to cover the estimated Services invoice for the next billing cycle.

6.6.          Professional Services Expenses. WE shall be entitled to reimbursement from YOU for any "out-of-pocket" expenses that have been mutually agreed upon in relation to any professional services that WE may provide. This includes, but is not limited to, travel expenses and travel related meals.

6.7.          Payment Disputes. We will not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) above if YOU are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.

6.8.          Taxes. Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, Use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). YOU are responsible for paying all Taxes associated with YOUR purchases hereunder. If We have the legal obligation to pay or collect Taxes for which YOU are responsible under this

7.     PROPRIETARY RIGHTS AND LICENSES

7.1.          Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our licensors reserve all of Our/their right, title and interest in and to the Services and Content, including all of Our/their related intellectual property rights. No rights are granted to YOU hereunder other than as expressly set forth herein.

7.2.          License by US to Use Content. We grant to YOU a worldwide, limited-term license, under Our applicable intellectual property rights, licenses, and EULA, to Use Content acquired by YOU pursuant to Order Forms, subject to those Order Forms, this Agreement and the Documentation.

7.3.          License by YOU to Host YOUR Data and Applications. YOU grant US and Our Affiliates a worldwide, limited-term license to host, copy, transmit and display YOUR Data, and any third party Applications and program code created by or for YOU Using a Service, as necessary for US to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, WE acquire no right, title or interest from YOU or YOUR licensors under this Agreement in or to YOUR Data of any third party Applications or program code.

7.4.          License by YOU to Use Feedback. YOU grant to US and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to Use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by YOU or Users relating to the operation of the Services.

8.     TERM AND TERMINATION

8.1.          Term of Agreement. This Agreement commences on the date YOU accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. If YOU elect to Use the Services for a free trial period and do not purchase a subscription before the end of that period, this Agreement will terminate at the end of the free trial period.

8.2.          Term of Purchased User Subscriptions. User subscriptions purchased by YOU commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein.

8.3.          Renewal. Except as otherwise specified in the applicable Order Form, all User subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The per-unit pricing during any such renewal term shall be the same as that during the prior term unless We have given YOU written notice of a pricing increase at least 30 days before the end of such prior term, in which case the pricing increase shall be effective upon renewal and thereafter. Any such pricing increase shall not exceed 10% over the pricing for the relevant Services in the immediately prior subscription term, unless the pricing in such prior term was designated in the relevant Order Form as promotional or one-time.

8.4.          Termination for Cause. A party may terminate this Agreement for cause: (a) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

8.5.          Early Termination Fee. Upon early termination of this Agreement by YOU, We will bill YOU for any discounts given to YOU as part of this agreement.  This includes, but are not limited to, (a) Setup Fees, (b) monthly Service Fees discounts, (c) professional services discounts and, (d) training related discounts. This Fee is intended to provide reasonable reimbursement for the incentives given to YOU, and YOU choose not remain a customer for the full term of the Agreement. The Early Termination Fee is part of this Offer and is not a penalty.

8.6.          Return of YOUR Data. Upon request by YOU made within 7 days after the effective date of termination of a Purchased Services subscription, We will make available to YOU at no cost, by download, 1) a AuditProof Licensed Application (with a 4 calendar year license) and, 2) a copy of YOUR Database in its native format. After such 30-day period, WE shall have no obligation to maintain or provide any of YOUR Data and shall thereafter, unless legally prohibited, delete all of YOUR Data in Our systems or otherwise in Our possession or under Our control. In the event of an early Termination, YOU will not be given a AuditProof Licensed Application, however YOU can request a copy of YOUR Database in its native format for a $250.

8.7.          Surviving Provisions. Section 6 (Fees and Payment for Purchased Services), 7 (Proprietary Rights and Licenses), 10 (Confidentiality), 11.3 (Disclaimer), 12 (Indemnification), 13 (Limitation of Liability), 8.5 (Early Termination Fee), 8.6 (Return of YOUR Data), 15 (Governing Law), and 16 (General Provisions) shall survive any termination or expiration of this Agreement.

9.     PROPRIETARY RIGHTS

9.1.          Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to YOU hereunder other than as expressly set forth herein.

9.2.          Restrictions. YOU shall not (a) permit any third party to access the Services except as permitted herein or in an Order Form, (b) create derivate works based on the Services, (c) copy, frame or mirror any part or content of the Services, other than copying or framing on YOUR own intranets or otherwise for YOUR own internal Business purposes, (d) reverse engineer the Services, or (e) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.

9.3.          Ownership of YOUR Data. As between US and YOU, YOU Exclusively own all rights, title and interest in and to all of YOUR Data.

10.           CONFIDENTIALITY

10.1.     Confidential Information. YOUR Confidential Information includes YOUR Data; Our Confidential Information includes the Services and Content; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as Business and marketing plans, technology and technical information, product plans and designs, Documentation, and Business processes disclosed by such party. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.

10.2.     Protection of Confidential Information. The Receiving Party will Use the same degree of care that it Uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (a) not to Use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (b) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel, accountants and partners without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 10.2.

10.3.     Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party’s not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

11.        REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

11.1.     Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.

11.2.     Our Warranties. We warrant that (a) this Agreement, the Order Forms and the Documentation accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of YOUR Data, (b) We will not materially decrease the overall security of the Purchased Services during a subscription term, (c) the Purchased Services will perform materially in accordance with the applicable Documentation, (d) We will not materially decrease the functionality of the Purchased Services during a subscription term, and (e) the Purchased Services and Content will not introduce Malicious Code into YOUR systems. For any breach of an above warranty, YOUR Exclusive remedies are those described in Sections 8 (Term and Termination).

11.3.     Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. NOTHING IN THIS AGREEMENT SHALL SUPERSEDE THE WARRANTIES, DISCLAIMERS, LIMITATIONS OF LIABILITIES, OR BASIS OF BARGAINS OF THE SERVICES EULA. CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS

12.           INDEMNIFICATION

12.1.     Indemnification. YOU shall defend US against any Claim made or brought against US by a third party alleging that YOUR Data, or YOUR Use of the Services in violation of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify US for any damages finally awarded against, and for reasonable attorney’s fees incurred by, US in connection with any such Claim; provided, that We (a) promptly give YOU written notice of the Claim; (b) give YOU sole control of the defense and Settlement of the Claim (provided that YOU may not settle any Claim unless the settlement unconditionally release US of all liability); and (c) provide to YOU all reasonable assistance, at Our expense.

12.2.     Exclusive Remedy. This Section 12 (Indemnification) states the indemnifying party’s sole liability to, and the indemnified party’s Exclusive remedy against, the other party for any type of Claim described in this Section.

13.           LIMITATION OF LIABILITY

13.1.     Limitation of Liability. NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT CUSTOMER'S PAYMENT OBLIGATIONS UNDER SECTION 6 (FEES AND PAYMENT FOR PURCHASED SERVICES).

13.2.     Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

14.           BASIS OF BARGAIN

The Warranty Disclaimer and Limitation of Liability set forth above are fundamental elements of the basis of the agreement between YOU and US. We would not be able to provide the Services on an economic basis without such limitations.

15.           NON-SOLICITATION OF EMPLOYEES

YOU agree that without expressed written consent, at all times during this agreement and for a period of twelve (12) months after termination, YOU will not, directly or indirectly, whether individually or as an officer, director, employee, consultant, partner, stockholder, individual proprietor, joint venturer, investor, lender, consultant or any other capacity whatsoever:  solicit, divert  hire, retain (including as a consultant) or encourage to leave the employment any employee or contractor of OURS, or hire or retain (including as a consultant) any former employee of OURS within twelve (12) months prior to such hiring or retention.

16.           GOVERNING LAW

16.1.     This Agreement shall be governed by and construed in accordance with the laws of the United States and the State of California, without reference to conflict of laws principles. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect.

17.           GENERAL PROVISIONS

17.1.     EXPORT RESTRICTIONS. The Services, Content, other technology We make available, and derivatives thereof may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. YOU shall not permit Users to access or Use any Service or Content in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.

17.2.     WAIVER. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

17.3.     ASSIGNMENT. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. In the event of such a termination, WE shall refund to YOU any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Subject to the foregoing, this Agreement shall bind and insure to the benefit of the parties, their respective successors and permitted assigns.

17.4.     LEGAL FEES. If any party employs attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees, costs, and other expenses.

 

EXHIBIT A - TERMS OF SERVICE

 

1.     Terms of Service. 

1.1.   YOU acknowledge and agrees to the following terms of service. YOU furthermore acknowledge that any new features or products released by US will be subject to this agreement.

1.2.   YOU Must Have Internet Access – YOU understands that in order to Use Our Services, a high-speed Internet connection will be required.  YOU also understand that performance may be impacted based upon the speed and reliability of YOUR connection.  YOU agrees to obtain all equipment or services necessary to Use this connection and understands that this is not included in Our Service. It is YOUR responsibility to validate that the Service will operate satisfactorily in YOUR environment before entering into this contract.

2.     Service Availability

2.1.   We will Use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 8 hours’ notice via the Purchased Services and which We shall schedule to the extent practicable during the hours from 12:00 a.m. to 4:00 a.m. Pacific Time, or (b) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, power outage, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Third-Party applications or services, or denial of service attack.

3.     Service Limitations

3.1.   SQL Data Storage.

Product

Microsoft SQL Server Storage Included

Connected Business Cloud Starter

up to 5 GB
Over 5 GB – Add $50/GB/month

Connected Business Cloud Pro

up to 10 GB
Over 10 GB – Add $50/GB/month

Connected Business Cloud Enterprise

up to 15 GB
Over 15 GB – Add $50/GB/month


Companies with data storage needs in excess of 40 gigs will need to move over to a dedicated server plan which may incur additional costs. Companies on grandfathered plans may have different data storage limits.

3.2.   Web Site Data Storage.

Product

Website Data Storage Included

Connected Business Cloud Starter

up to  2 GB
Over 2 GB – Add $3/GB/month

Connected Business Cloud Pro

up to  4 GB
Over 4 GB – Add $3/GB/month

Connected Business Cloud Starter

up to  6 GB per database
Over 6 GB – Add $3/GB/month

 

3.3.   3.3 Bandwidth Transfer Volume.  If it is determined by US, at our sole discretion, that YOUR Bandwidth Transfer Volume Usage is excessive, we may ask YOU to transfer to one of our Dedicated Hosting plans. YOU may incur additional charges if this change is required.

3.4.   CPU / Database IOPS Usage. If it is determined by US, at our sole discretion, that YOUR CPU or Database IOPS Usage is excessive, we may ask YOU to transfer to one of our Dedicated Hosting plans. YOU may incur additional charges if this change is required.

4.      Data Backup

4.1.   Backups. Our backups are intended only to recover from system failure and are not intended for restoration of files to individual web sites. We do not represent or guarantee that the databases or files contained in the backup are the most recent copies for a given database or web site.

4.2.   Database Backups.  Full Microsoft SQL Databases are backed up nightly.  All backups are sent offsite daily and retained for 3 days. We reserve the right to alter database backup schedules based on server usage patterns and network capacity without prior notice.  

4.3.   Database Restores.  We will initiate restoration of data upon receiving written request from YOU indicating the file and/or databases to be restored.  There will be a charge of $150/hr. with a one-hour minimum for database restores.

4.4.   Website Backups.  Website backups are only performed if YOU selects backup services as part of YOUR hosting package.  Standard backups are performed for those directories specifically listed in hosting agreement.

4.5.   Website Restores.  We will initiate restoration of data upon receiving written request from YOU indicating the file(s) to be restored.  There will be a charge of $150/hr. with a one-hour minimum for file restoration. We will do everything possible to restore to the nearest 1 hour as requested by YOU.

4.6.   Backup Schedules.  We reserve the right to alter the backup schedules in circumstances including, but not limited to, large data volumes, high system load and high network utilization.

5.      Custom Services

5.1.   Upgrades. We will upgrade YOUR database and website files for incremental releases at no charge. YOU would be responsible for updating YOUR locally installed applications and mobile apps. We are not responsible for website downtown due to the upgrading of a custom web site.

5.2.   Custom Upgrades. If YOU are hosted on one of our shared servers and YOU have customized the web site source code, YOU will be required to coordinate updates with one of our server specialist. Short term testing environments (30 calendar days) can be setup for YOU to migrate YOUR website to newer versions. It is the responsibility of YOU to coordinate the migration schedules with our hosting team.

5.3.   Site Monitoring. We will work with YOU to determine and implement the type and level of monitoring and alerting required for their environment.

5.4.   Web site activity logging. We will process the server log file and present the information to YOU, for a fee, upon request. The report will be delivered to YOU electronically. We makes no guarantees as to the availability of web site activity logs for any specific period of time and We are not liable for any incidental or consequential damages caused by its inability to produce a web site activity log for the YOU.

5.5.   Domain Registration and SSL certificates. YOU are responsible for all required fees and/or maintenance fees associated with domain names or secure certificates, both now and in the future. There is no charge from US to add SSL certificates to a website.

6.      Dedicated Servers

6.1.   Availability. We offer Dedicated Servers to higher volume customer for an extra cost.

6.2.   Updates. YOU are responsible for all updates to the software on Dedicated servers. Any assistance from US will incur a per hour labor charge. This provision does not apply to one-time activation fees and standard assistance and/or maintenance.

6.3.   Backups. YOU are responsible for all backups on Dedicated servers. Any assistance from US will incur a per hour labor charge. This provision does not apply to one-time activation fees and standard assistance and/or maintenance.

7.      General Provisions

7.1.   Content Restrictions.  We reserve the right without notice to remove and refese any data determined to be “Offensive” or “pornographic” by our discretion. Appeals may be directed to our management. All decisions are final.

7.2.   Content Security. We are not responsible for any data gained by a third party via unlawful entry onto our servers. We make no representation, nor do we guarantee, that our servers are 100% secure and We shall not be liable for any incidental or consequential damages caused by third party hacking of its servers or the data thereon. YOU may not Use our network to attempt or otherwise, circumvent User authentication or security of any host, network, or account. This includes, but is not limited to, accessing data not intended for the YOU, logging into a server or account the YOU is not expressly authorized to access, password cracking, probing the security of other networks in search of weakness, or violation of any other organization's security policy.

7.3.   Right to Modify.  We reserve the right to modify these terms of service at any time and from time to time.

7.4.   3rd Party Plugins. Unless agreed in writing by US, no 3rd party plug-ins, Windows services or applications, monitors, or web applications of any kind will be allowed to run in Our Cloud environment.

8.      Warranty Disclaimer.

8.1.   Basic Hosting is offered at no charge as a courtesy to our customer. As such, we make no warranties or representations of any kind, whether expressed or implied, for the hosting services we are providing. We disclaim any warranty of merchantability or fitness for any particular purpose and will not be responsible for any damages that may be suffered by Customer, including loss of data resulting from hardware failure, backup failure, delays, non-deliveries or service interruptions by any cause. Use of any information obtained by way of US is at Customer's own risk, and we specifically denies any responsibility for the accuracy or quality of information obtained through our Services. Connection speed represents the speed of an end-to-end connection. We do not represent guarantees of speed or availability of end-to-end connections. Charges for product subscriptions are separate than the basic hosting and in no circumstance will the loss of service, non-accessibility time or other down time result in a pro-rata credit for the subscription fees.
We specifically deny any responsibilities for any damages, direct or indirect, arising as a consequence of such unavailability.

 

EXHIBIT B - CONNECTED BUSINESS END USER LICENSE AGREEMENT

 

This End User License Agreement ("EULA") is a legal agreement between YOU ("YOU" and "YOUR" includes a person and/or an individual entity) and Interprise Software Solutions, Inc. ("ISSI") concerning the software products(s) (hereinafter referred to as "Software"). The Software includes all component parts, the associated media, any printed materials, any updates, and any "online" or electronic documentation, as applicable. By accessing, installing, copying, downloading, accessing or otherwise Using the Software, YOU agree to be bound by the terms of this EULA. If YOU do not agree to the terms of this EULA, ISSI is unwilling to license the Software to YOU. In such event, YOU may not access, Use or copy the Software, and YOU should promptly contact ISSI or YOUR Supplier for instructions on returning the Software. WRITTEN ASSENT IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS EULA.

1. GRANT OF LICENSE.

This agreement grants YOU the following rights.

 

Subject to the payment of all applicable license fees, and the terms and conditions of this EULA, ISSI hereby grants to YOU a limited, non-sublicensable, non-Exclusive, non-transferable right to install and run one copy of the specified version of the Software and the accompanying documentation, solely for YOUR individual Use. This EULA authorizes YOU to make one copy of the Software solely for backup or archival purposes, provided that the copy YOU make contains all of the proprietary notices set forth in or on the original version of the Software. Upon receipt of the appropriate Software registration information, ISSI will provide YOU an alphanumeric key (the "Activation Code") to enable YOU to Use the Software pursuant to the terms of this EULA. Documentation shall include, but not be limited to, any printed materials, "online" or electronic data provided by or obtained from ISSI with regard to this Software ("Documentation"). The Software and Documentation are licensed, not sold. Even though copies of the Software may be provided on media of different formats, copies of the Software on different media formats do not constitute multiple licenses to the Software.

 

(i) SINGLE USER LICENSE

If this Software is licensed as a single User product, YOU may Use only one copy of the Software, by not more than one User at a time, on a total of one computer or workstation for which the Software was designed ("Client Device"). The component parts of the Software may not be Used individually or jointly in full or in part on more than one Client Device. The Software is "in Use" on a computer when it is loaded into the temporary memory (i.e., random access memory or RAM) of that Client Device.

 

(ii) MULTI USER LICENSE

If the Software is licensed with multi-User or networked license terms, YOU may Use the Software on one database server computer only within a multi-User or networked environment. Use of software, hardware or services that bypass any Software license restrictions and/or reduce the number of concurrent Users accessing or utilizing the Software expressly does not reduce the number of licenses required. YOU may install the client license element of the software on to as many Client Devices that YOU Exclusively Use or own. The Server license element of the software can only be installed to one database server. The number of Users YOU have may have purchased are concurrent Users. So it is possible to purchase a 5 User license which allows YOU to install the client license onto for example 10 client devices but the server license will only let 5 Users concurrently have access to the data and software.

 

1.5 PRODUCT PATCH, PLUG-IN, UPDATES OR SCRIPTS

All patch, plug-in, update or script(s) are subject to the terms and conditions of this EULA and are subject to the ISSI Warranty Disclaimer (as set out in section 9) and Limitation of Liability (as set out in section 10), as applicable.  If this product is a patch, plug-in, update or script(s), YOU are granted a non-Exclusive license to Use such patch, plug-in, update or script(s) provided that YOU still possess a valid license from ISSI for the Original Application.  Additional license terms may accompany patch, plug-in, update or script(s) and by installing, copying, or otherwise Using any patch, plug-in, update or script(s), YOU agree to be bound by those terms. If YOU do not agree to the additional license terms accompanying such patch, plug-in, update or script(s), do not install, copy, or otherwise Use such patch, plug-in, update or script(s).

2. COPYRIGHT.

The Software is owned by ISSI and is protected by copyright laws and international treaty provisions, as well as other intellectual property laws and treaties. The Software is licensed, not sold. YOU must therefore treat the Software like any other copyrighted material. ISSI retain all title to and, except as expressly and unambiguously licensed herein, all rights and interest in (a) the Software, including, but not limited to, all copies, versions, customizations, compilations and derivative works thereof (by whomever produced) and all related Documentation; (b) the ISSI trademarks, service marks, trade names, icons and logos; (c) any and all copyright rights, patent rights, trade secret rights and other intellectual property and proprietary rights throughout the world in the foregoing; and (d) all Confidential Information (as defined in Section 20 below). YOU acknowledge that YOUR possession, installation, or Use of the Software does not transfer to YOU any ownership, title, or interest of any kind to the intellectual property in the Software, and that YOU will not acquire any rights to the Software except as expressly set forth in this EULA. YOU agree that all backup, archival, or any other type of copies of the Software and Documentation will contain the same proprietary notices that appear on and in the Software and Documentation.

3. SUBMISSIONS

Should YOU decide to submit any materials to ISSI via electronic mail, or otherwise, whether as feedback, data, questions, comments, ideas, concepts, techniques, suggestions or the like, YOU agree that such submissions are unrestricted and shall be deemed non-confidential upon submission. YOU grant to ISSI and its assigns a non-Exclusive, royalty-free, worldwide, perpetual, irrevocable license, with the right to sublicense, to Use, copy, transmit, distribute, create derivative works of, commercialize, display and perform such submissions.

4. TERM OF LICENSE

Regardless of the location of the Software, YOU are responsible for strict compliance with any and all of the terms and conditions of this EULA. This EULA will terminate automatically if YOU fail to comply with any of the limitations or other requirements described herein, and such termination shall be in addition to and not in lieu of any criminal, civil or other remedies available to ISSI. When this EULA terminates, YOU must immediately cease Using the Software and destroy all copies of the Software and the Documentation. YOU may terminate this EULA at any point by destroying all copies of the Software and the Documentation. This EULA is effective unless and until YOU or ISSI terminates the EULA earlier, in accordance with the terms set forth herein.

5. OTHER RESTRICTIONS.

YOU may only install and Use the Software on hardware which is (a) under YOUR Exclusive control and (b) in the case of hardware performing any server functions, located at premises where YOU normally conduct day-to-day Business operations. Notwithstanding the foregoing, if YOU decide to host the software at a hosting provider the server must be a dedicated server for YOUR Exclusive Use

 

(i) TRANSFER

YOU may not transfer any or all of the rights granted to YOU under this EULA. YOU may not transfer the Software unless permitted to in writing by ISSI. This is to allow for YOUR company being bought by another company or a change of name of YOUR existing company. YOU may not sell or transfer YOUR license it is specific to YOUR company.

 

(ii) REVERSE ENGINEERING

YOU may not rename files of, modify, translate, localize, decompile, disassemble, decrypt, reverse engineer, attempt to derive source code from, remove any proprietary notices from, or create derivative works based upon the Software, in whole or in part. YOU may not duplicate or copy any portion of the Software or Documentation, unless otherwise set forth herein. YOU may not remove any proprietary notices or labels on the Software, including, but not limited to, the ISSI product names wherever they may appear. All rights not expressly set forth hereunder are reserved by ISSI. ISSI reserves the right to periodically conduct audits upon advance written notice to verify compliance with the terms of this EULA.

 

(iii) SEPARATION OF COMPONENTS

The Software is licensed as a single product. Its component parts may not be separated for Use on more than one computer, or accessed in any way other than through the provided User interface.

 

(iv) TERMINATION

Without prejudice to any other rights, ISSI may terminate this agreement if YOU fail to comply with the terms and conditions of this agreement. In such event YOU must destroy all copies of the Software and all of its component parts.

 

(v) TRADEMARKS

This EULA does not grant YOU any rights in connection with any trademarks or service marks of ISSI, or its suppliers.

 

(vi) RENTAL

YOU may not rent, lease, sublicense, loan, sell, distribute, market or commercialize any portion of the Software or its components.

 

(vii) FACILITY MANAGEMENT

YOU may not permit any parent, affiliate, subsidiary or any other third parties to benefit from the Use or functionality of the Software, either directly or via a facility management, timesharing, service bureau or any other arrangement. YOU may not Use the Software as part of a facility management, timesharing, or service bureau arrangement.

6. ENHANCEMENTS, UPGRADES AND UPDATES.

From time to time, at its sole discretion, ISSI may provide enhancements, updates, or new versions of the Software under a software maintenance contract. This Agreement shall apply to such enhancements. Such enhancements or new versions replace the existing Software.

7. PRODUCT SUPPORT

Product support for the Software is provided only if YOU have a support contract with YOUR supplier.

8. DISTRIBUTION.

Distribution by the User of any designs, components or other component parts (EXEs, DLLs, OCXs), executables, source code, or on-line help files distributed by ISSI as part of this product is prohibited. YOU shall not develop applications that provide an application programmable interface to the Software or the Software as modified. Redistribution by YOU or YOUR Users of ISSI components, or YOUR modified or wrapped version of ISSI components without the appropriate redistribution license from ISSI is prohibited.

9. WARRANTY DISCLAIMER

The Software is being delivered to YOU "AS IS" and ISSI makes no warranty as to its Use or performance. YOU assume all responsibility for the selection of the Software as appropriate to achieve the results YOU intend and for the installation of, Use of, and results obtained from the Software. ISSI AND ITS RESELLERS DO NOT AND CANNOT WARRANT THE PERFORMANCE OR RESULTS YOU MAY OBTAIN BY USING THE SOFTWARE. ISSI AND ITS RESELLERS MAKES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE, VIRUS FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS. EXCEPT FOR ANY WARRANTY, CONDITION, REPRESENTATION OR TERM TO THE EXTENT TO WHICH THE SAME CANNOT OR MAY NOT BE EXCLUDED OR LIMITED BY LAW APPLICABLE TO YOU IN YOUR JURISDICTION, ISSI AND ITS RESELLERS MAKE NO WARRANTIES CONDITIONS, REPRESENTATIONS, OR TERMS (EXPRESS OR IMPLIED WHETHER BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER INCLUDING WITHOUT LIMITATION NONINFRINGEMENT OF THIRD PARTY RIGHTS, MERCHANTABILITY, INTEGRATION, SATISFACTORY QUALITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. YOU expressly acknowledge that any modification of the Software or the addition of any third party plug-ins to the software, whether or not permitted, is beyond the control of ISSI, and as such, such modification shall void all warranties under this Agreement. The foregoing provisions shall be enforceable to the maximum extent permitted by applicable law.

10. LIMITATION OF LIABILITY.

IN NO EVENT, CIRCUMSTANCES OR UNDER NO LEGAL THEORY SHALL ISSI OR ITS RESELLERS BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY, FOR ANY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF USE OF OR INABILITY TO USE THE SOFTWARE PRODUCT, EVEN IF ISSI OR ITS RESELLER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY TO THE EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION. IN NO EVENT WILL ISSI BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE PRICE PAID TO ISSI FOR THE LICENSE OF THE SOFTWARE.

11. BASIS OF BARGAIN

The Warranty Disclaimer and Limitation of Liability set forth above are fundamental elements of the basis of the agreement between YOU and ISSI. ISSI would not be able to provide the Software on an economic basis without such limitations.

12. DATA

YOU acknowledge that any data entry, conversion or storage is subject to the likelihood of human and machine errors, malicious manipulation, omissions, delays, and losses, including, but not limited to, inadvertent loss of data or damage to media that may result in loss or damage to YOU and/or YOUR property, and/or YOUR detrimental reliance on maliciously manipulated data. ISSI shall not be liable for any such errors, omissions, delays, or losses. YOU are responsible for adopting reasonable measures to limit the impact of such problems, including backing up data, adopting procedures to ensure the accuracy of input data, examining and confirming results prior to Use, adopting procedures to identify and correct errors and omissions, replacing lost or damaged media, and reconstructing data. YOU are also responsible for complying with all laws pertaining to the Use, storage and disclosure of any data.

13. INDEMNIFICATION

YOU agree to defend, indemnify and hold harmless ISSI and its directors, officers, employees, affiliates, distributors, sublicensees, Solution Providers, Resellers and Agents from and against all claims, defense costs (including reasonable expert and attorney's fees), judgments and other expenses arising out of or on account of any negligent act, omission, or willful misconduct by YOU or on YOUR behalf in (i) the installation or Use of the Software or (ii) YOUR compliance or failure to comply with this EULA.

14. AUTHORISED SOLUTION PROVIDERS

Any authorized ISSI Solution Provider, Reseller, Installer, or Consultant is not affiliated with ISSI in any capacity other than as a Solution Provider, Reseller, Installer or Consultant of ISSI's products and has no authority to Bind ISSI or modify any license or warranty. ISSI makes no representations, warranty, endorsement or guarantee with respect to the skills or qualifications of any authorized ISSI Solution Provider, Reseller, Installer or Consultant and YOU are encouraged to independently investigate the skills and qualifications of any authorized ISSI Solution Provider, Reseller, Installer or Consultant with whom YOU associate.

15. HIGH RISK ACTIVITIES

The Software is not fault-tolerant and is not designed or intended for Use in hazardoUS environments requiring fail-safe performance, including without limitation, in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, direct life-support machines, or any other application in which the failure of the Software could lead directly to death, personal injury, or severe physical or property damage (collectively, "High Risk Activities"). ISSI expressly disclaims any express or implied warranty of fitness for High Risk Activities.

16. GENERAL PROVISION.

YOU shall have no right to sublicense any of the rights of this agreement, for any reason. In the event of the breach by YOU of this Agreement, YOU shall be liable for all damages to ISSI, and this Agreement shall be terminated. If any provision of this Agreement shall be deemed to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining portions of this Agreement shall not be affected or impaired thereby. In the event of a legal proceeding arising out of this Agreement, the prevailing party shall be awarded all legal costs incurred. This Agreement constitutes the entire agreement between the parties for the supply of the Software and its associated documentation and supersedes all prior arrangements, agreements, representations, and undertakings. This Agreement may not be changed or modified except by a written instrument duly executed by each of the parties hereto.

17. EXPORT RESTRICTIONS.

YOU may only Use the software license in the country YOU purchased it. YOU agree that YOU will not export or re-export the SOFTWARE PRODUCT to any country, person, entity or end User subject to U.S.A. export restrictions.  Restricted countries currently include, but are not necessarily limited to Cuba, Iran, Iraq, Libya, North Korea, Sudan, and Syria.  YOU warrant and represent that neither the U.S.A. Bureau of Export Administration nor any other federal agency has suspended, revoked or denied YOUR export privileges.

18. MISCELLANEOUS.

This Agreement shall be governed by and construed in accordance with the laws of the United States and the State of California, without reference to conflict of laws principles. If any provision of this Agreement is held invalid, the remainder of this Agreement shall continue in full force and effect. YOU shall be responsible for the payment of all taxes, duties, or levies that may now or hereafter be imposed by any authority upon this Agreement for the supply, Use, or maintenance of the Software, and if any of the foregoing taxes, duties, or levies are paid at any time by ISSI, YOU shall reimburse ISSI in full upon demand.

19. LEGAL FEES.

If any party employs attorneys to enforce any rights arising out of or relating to this EULA, the prevailing party shall be entitled to recover its reasonable attorneys' fees, costs, and other expenses.

 

20. CONFIDENTIALITY

YOU agree that the Software, including, but not limited to, all source and object code components, screen shots and displays, graphical User interfaces, algorithms, formulae, data structures, scripts, application programming interfaces and protocols, and the Documentation (collectively the "Confidential Information") are trade secrets of ISSI and are owned by ISSI or, where applicable, its third-party licensors. YOU agree to retain all Confidential Information in strict confidence at least with the same amount of diligence that YOU exercise in preserving the secrecy of YOUR most-valuable information, but in no event less than reasonable diligence. YOU agree to: (i) only disclose Confidential Information to YOUR employees and agents to the extent required to Use the Software under the terms of this EULA and not to disclose or disseminate the Confidential Information to any third party without the prior written consent of ISSI, (ii) Use the Confidential Information solely for YOUR benefit as provided for herein and not to allow any third party to benefit from the Confidential Information, and (iii) bind YOUR employees and agents, by terms no less restrictive than those set forth herein, to maintain the confidentiality of such Confidential Information, and not Use or disclose such information except as permitted under this EULA. Notwithstanding the disclosure of any Confidential Information for any reason, such Confidential Information shall continue to be owned by ISSI or its licensors. Nothing contained herein shall be deemed to prevent YOU from disclosing or disseminating YOUR data, in any format or any report, to whomever YOU so choose.

21. ACKNOWLEDGEMENTS

YOU acknowledge that YOU have read this Agreement, understand it, and agree to be bound by its terms and conditions.