Terms for Dedicated Set-up

CORESTACK LICENSE AGREEMENT 

PLEASE READ THIS CORESTACK LICENSE AGREEMENT (this “Agreement”) CAREFULLY.  BY DOWNLOADING, INSTALLING, ACCESSING AND/OR USING CORESTACK (AS DEFINED BELOW) WHICH IS OFFERED FOR LICENSE BY CLOUDENABLERS INC., A DELAWARE, UNITED STATES COMPANY (“CloudEnablers”), YOU:

  • AGREE ON BEHALF OF YOURSELF AND THE PERSON/ENTITY THAT EMPLOYS OR ENGAGES YOU (“Customer”) THAT THIS AGREEMENT GOVERNS YOUR AND CUSTOMER’S USE OF CORESTACK 
  • AGREE THAT THIS AGREEMENT IS ENFORCEABLE AGAINST YOU AND CUSTOMER, AND 
  • REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO MAKE THE ABOVE AGREEMENTS. 

 IF YOU OR CUSTOMER DO NOT AGREE TO THIS AGREEMENT, YOU AND CUSTOMER SHALL NOT, AND SHALL HAVE NO RIGHT TO, DOWNLOAD, INSTALL, ACCESS OR USE CORESTACK. 

BY ACKNOWLEDGING ACCEPTANCE OF THIS AGREEMENT, YOU, ON BEHALF OF YOURSELF AND CUSTOMER, AGREE TO BE BOUND BY THIS AGREEMENT. 

  1. LICENSE.  Customer is licensing pursuant to this Agreement either the enterprise version of CoreStack(the “Enterprise Version”) or the Professional version of CoreStack (the “Professional Version”) as set forth in the Order(as defined below).  For purposes of this Agreement, references to “CoreStack” shall refer to either the Enterprise Version or the Professional Version depending upon the version licensed by Customer.  In the event that Customer transitions to the Enterprise Version license from the Professional Version license, or vice versa, Customer agrees that this Agreement shall continue to govern such license.  “Order” means an order confirmation of CloudEnablers or its equivalent (e.g., purchase order), or an order submitted via CloudEnablers’s website, which is accepted by CloudEnablers. 
    1. Grant.  Subject to Customer’s compliance with this Agreement, CloudEnablers grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, worldwide, revocable license (a) to install and use CoreStack, including software in object code form, for up to the maximum number of concurrent nodes managed using CoreStack as specified in the Order solely on Customer’s hardware or hardware subscribed from any Service Provider or Cloud Service Provider by Customer’s employees and contractors for Customer’s own internal business use in accordance with this Agreement and CoreStack’s then-current published documentation (the “Documentation”), and (b) to use the Documentation for such installation and use, in each case, during the Term (as defined below) unless earlier terminated.  Customer may make a reasonable number of copies of the Documentation for its own internal business use of CoreStack. 
    2. Support.  CloudEnablers agrees to provide the level of support to Customer specified in the Order in accordance with its then-current published support guidelines subject to Customer’s compliance with this Agreement.  Customer agrees to provide CloudEnablers its systems data, log files, bug reports of its systems and other data regarding its use of CoreStack and to provide Cloudenablers access to such hardware, be it Customer’s own hardware or hardware subscribed from any Service Provider or Cloud Service Provider for enabling CloudEnablers to perform this Agreement, including to provide support, and grants CloudEnablers a limited, non-exclusive, worldwide, revocable license to use such data for such purposes. 
    3. Responsibility.  Customer is solely responsible for (i) maintaining the confidentiality of its administrator and user credentials and passwords for its CoreStack accounts, (ii) properly configuring and using CoreStack in accordance with this Agreement and the Documentation, including, at its own cost and expense, providing all equipment, operating systems, internet connections, networking and any other software or systems needed to use CoreStack in accordance with the Documentation, and (iii) all activities with respect to Customer’s accounts.  Customer is responsible for the compliance with this Agreement by its employees and contractors. Customer represents and warrants that (i) the performance of its obligations and use of the Platform and the Application by its Authorized Users will not violate any applicable laws, or regulations, including without limitation any and all laws and regulations regarding the transfer of personal information of residents of the European Union outside the European Union, or (ii) cause a breach of any agreements with any third parties or unreasonably interfere with the use by other customers of the Platform, the Application or the Company Services. 
    4. No Competitive Use.  Customer shall not access or use CoreStack if Customer is CloudEnablers’s competitor.  Customer shall not access or use CoreStack to evaluate its functionality or performance for competitive purposes, including for developing by itself or through a third party any similar application, product or service, or any feature or functionality similar to any part of CoreStack. 
    5. Restrictions.  Customer agrees that CoreStack contains intellectual property and other proprietary rights of CloudEnablers and its licensors, and to protect such rights, Customer shall not: (a) reverse engineer, decompile or otherwise derive or attempt to derive the source code of CoreStack, except for any non-waivable right to decompile the software therein expressly permitted by applicable mandatory law, (b) modify, port, adapt, translate or create any derivative work based on CoreStack or the Documentation, (c) copy, create a virtual version of, distribute, resell, assign, pledge, sublicense, lease, loan, rent or otherwise transfer or exploit CoreStack or the Documentation, except for the express licenses set forth in Section 1.1, or use CoreStack or the Documentation to provide services to any third party on a service bureau, time sharing or other basis, (d) knowingly upload or permit CoreStack to be used to upload any viruses or other harmful or deleterious computer code, files or programs such as trojan horses, worms, time bombs or cancelbots, (e) remove or modify any names, trademarks, service marks, logos, or copyright or other proprietary notices on CoreStack or the Documentation, or add any other markings or notices to CoreStack or the Documentation, or (f) release the results of any use of CoreStack to any third party without the prior written approval of CloudEnablers. 
  2. PAYMENT 
    1. Fees.  Customer agrees to pay CloudEnablers the fees, if any, for licensing the applicable version of CoreStack, including any applicable support fees (each, a “Fee”), in the currency as specified in the applicable Order.  All Fees, which are non-refundable except as expressly set forth in this Agreement, will be invoiced in advance in accordance with the applicable Order, provided that if Customer’s use of CoreStack exceeds the maximum number of concurrent nodes set forth in such Order, CloudEnablers will invoice Customer at the end of each calendar month in the Term for such excess usage based on the highest number of concurrent nodes managed during such calendar month and with pricing based on the pricing set forth in such Order.  Except for any excess usage Fees, the Fees are based on the maximum number of concurrent nodes managed using CoreStack licensed by Customer in the Order and not on actual usage.  All Fees, including excess usage Fees, are due and payable Net 30 days after the date of the applicable invoice.  Fees that are not paid within 30 days shall be assessed a 1.5% late payment charge (or, if less, the highest legal rate under applicable law) for each month the invoice is not paid. Customer will reimburse CloudEnablers for all reasonable costs incurred by CloudEnablers for collecting any past due amounts. 
    2. Taxes.  The Fees, if any, do not include any taxes, duties or other amounts or withholdings assessed or imposed by any government authority.  Customer is responsible for paying all such taxes, duties and other amounts or withholdings, except for any taxes imposed on CloudEnablers income.  Customer will pay or reimburse CloudEnablers for all such amounts upon demand, or provide evidence of payment or exemption.  In the case of any withholding requirement, Customer will pay any required withholding and will not reduce the amount payable to CloudEnablers on account thereof. 
    3. Audit.  During the Term and for 90 days thereafter, upon at least ten business days’ prior written notice or sooner if CloudEnablers reasonably believes that Customer is in breach of this Agreement, CloudEnablers may audit Customer’s use of CoreStack to confirm compliance with this Agreement on a confidential basis. Any audit will be conducted during regular business hours at Customer’s facilities, will not unreasonably interfere with Customer’s business activities and will be in compliance with Customer’s reasonable security procedures. CloudEnablers may conduct no more than one audit in any consecutive 12-month period, except that CloudEnablers may conduct an additional audit if CloudEnablers reasonably believes that Customer is in breach of this Agreement. Customer agrees to reasonably cooperate with CloudEnablers and its third party auditor. Customer will promptly reimburse CloudEnablers for all reasonable costs of the third party auditor if the audit reveals underpayment of more than 5% of Fees payable by Customer for the period audited. 
  3. LIMITED WARRANTY
    1. Limited WarrantyCloudEnablers warrants that CoreStack will perform substantially in accordance with the Documentation during the Term when used in accordance with this Agreement and the Documentation. This limited warranty is void if failure of CoreStack has resulted from installation, use, maintenance or support not in accordance with the Documentation, modification by Customer or its authorized users, or a third party not authorized by CloudEnablers, force majeure, or any breach of this Agreement by Customer or its authorized users. In the event of a warranty claim, Customer’s sole and exclusive remedy and CloudEnablers entire obligation and liability shall be to repair or replace CoreStack, or if CloudEnablers is unable to repair or replace CoreStack, to terminate this Agreement and to refund Customer any applicable Fees (a) covering the whole months in which CoreStack was not in conformance with this warranty and (b) pre-paid by Customer for any remaining whole months in the then-current Term.  Any repaired or replaced version of CoreStack is warranted for the remainder of the warranty period.  All warranty claims must be made to CloudEnablers in writing within such warranty period. 
    2. Disclaimer.  EXCEPT AS EXPRESSLY SET FORTH IN SECTION 3.1, CORESTACK IS PROVIDED “AS IS” AND CLOUDENABLERS, ON BEHALF OF ITSELF, ITS AFFILIATES AND ITS LICENSORS, DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  CLOUDENABLERS DOES NOT WARRANT THAT CORESTACK OR USE THEREOF WILL BE ERROR FREE, SECURE, UNINTERRUPTED OR VIRUS FREE, OR WILL MEET CUSTOMER’S REQUIREMENTS. 
  4. INTELLECTUAL PROPERTY
    1. Ownership.  All right, title and interest in and to CoreStack and the Documentation not expressly licensed to Customer under Section 1.1 are reserved by CloudEnablers.  All right, title and interest in and to CoreStack and the Documentation, in addition to any developments, enhancements and improvements therein or thereto, and all intellectual property and other proprietary rights therein or thereto, are exclusively owned by CloudEnablers and its affiliates and their licensors.  To the extent that CoreStack is provided with components that are offered under an open source license and such license expressly supersedes this Agreement, then such license will govern the use of such components. 
    2. Indemnification.  CloudEnablers, if notified promptly in writing and given authority, control, information and assistance at CloudEnablers expense for defence and settlement of same, shall defend Customer against any third party action, suit or proceeding brought against Customer so far as it is based on a claim that the use of the Enterprise Version of CoreStack infringes a United States patent or copyright that has been issued as of the installation date.  In connection with such defence obligation, CloudEnablers shall be solely responsible for (a) all attorneys’ fees, and court or tribunal costs incurred by CloudEnablers with respect to defence and settlement of such third party claim, (b) any judgements, fines, costs and penalties awarded by any court or tribunal against CloudEnablers and/or its customers, including Customer, for such third party claim and (c) any amounts paid in settlement of such third party claim as mutually agreed by CloudEnablers for such third party claim.  If CloudEnablers reasonably believes that Customer’s use of the Enterprise Version of CoreStack is likely to be enjoined, or if the Enterprise Version of CoreStack is held to infringe such patent or copyright and all use of such CoreStack by Customer is thereby enjoined, CloudEnablers shall, at its expense, (i) procure for Customer the right to continue using the Enterprise Version of CoreStack, (ii) replace the Enterprise Version of CoreStack with other non-infringing software of substantially equivalent functionality or (iii) modify the Enterprise Version of CoreStack so that there is no infringement, provided that such modified software provides substantially equivalent functionality.  If, in CloudEnablers’s reasonable opinion, the remedies above are commercially impracticable, CloudEnablers may terminate this Agreement and refund Customer any applicable Fees pre-paid by Customer for any remaining whole months in the then-current Term.  Customer shall not settle any matter without the prior written approval of CloudEnablers. 
    3. Exceptions.  The indemnification obligation in Section 4.2 will not apply to the extent the infringement is caused by any of the following: (a) CoreStack is modified in an unauthorized manner by Customer or its authorized users, (b) CoreStack is combined by Customer or its authorized users with other software, hardware, application or process not authorized by CloudEnablers, (c) CoreStack is used by Customer or its authorized users in violation of this Agreement or the Documentation, or (d) any materials, data or information provided by Customer or its authorized users.4.4 Sole Remedy.  SECTIONS 4.2 AND 4.3 SET FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND CLOUDENABLERS ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION. 
  5. CONFIDENTIALITY, PRIVACY, MARKETING
    1. Definition.  “Confidential Information” means any confidential information of the disclosing party disclosed to the receiving party that is marked or identified as confidential at the time of disclosure or that reasonably should be understood to be confidential given the nature of the information and/or the circumstances of disclosure.  Notwithstanding the foregoing, (a) the Confidential Information of CloudEnablers shall include CoreStack, the Documentation, and CloudEnablers technology plans, product roadmap and pricing, and (b) the Confidential Information of Customer shall include Customer’s systems data, log files, bug reports of its systems, and usernames and passwords for CoreStack (the “Customer Data”). 
    2. Obligations.  All Confidential Information of the disclosing party remains the sole and exclusive property of such party. A receiving party will not use or disclose a disclosing party’s Confidential Information, except for the performance of this Agreement.  The receiving party agrees to protect the confidentiality of the disclosing party’s Confidential Information from unauthorized disclosure or use with at least the same degree of care that the receiving party applies to such party’s own Confidential Information, but no less than reasonable care.  A receiving party may disclose the disclosing party’s Confidential Information only to those employees and contractors of the receiving party who have a bona fide need to know such Confidential Information for the performance of this Agreement, provided that each such employee and consultant first executes a written agreement or is otherwise already bound by a written agreement that contains confidentiality obligations at least as protective of such Confidential Information as those in this Agreement.  All confidentiality obligations created by this Section shall remain in force and effect for the greater of (a) this Agreement’s term plus 24 months or (b) 24 months from the date any Confidential Information is disclosed by the disclosing party to the receiving party.  The disclosing party may pursue any and all remedies at law, in equity or otherwise for any actual or threatened breach of this Section regarding its Confidential Information. 
    3. Exclusions.  The obligations in Section 5.2 will not apply to the extent any information: (a) is now or hereafter becomes generally publicly available through no act or failure to act of the receiving party, (b) is information that the receiving party had rightfully in its possession without restriction as to use or disclosure before receiving such information from the disclosing party, (c) is hereafter rightfully obtained by the receiving party from a third party without restriction as to use or disclosure, provided that such third party is not known by the receiving party to be bound by a confidentiality agreement with respect to such information, or (d) is information that the receiving party independently developed without access to or use of any Confidential Information of the disclosing party. 
    4. Compelled Disclosure.  The receiving party will be allowed to disclose Confidential Information of the disclosing party to the extent that such disclosure is required by law or by the order of any court or government authority, provided the receiving party notifies the disclosing party of such required disclosure promptly and in writing and cooperates with the disclosing party, at the disclosing party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. 
    5. Usage Data.  Customer agrees to allow the collection of data regarding Customer’s use of CoreStack, which data will be used to perform this Agreement, to provide analytics and to help improve the quality of CoreStack. The usage data may include information such as the number of blueprints, applications, and other usage statistics regarding the Customer’s CoreStack instance. Customer consents to the transfer by CloudEnablers of the anonymized data regarding Customer’s use of CoreStack to a third party analytics provider contracting with CloudEnablers
    6.   Marketing.  Neither party may disclose this Agreement or issue a press release regarding this Agreement without the other party’s prior written consent.  Notwithstanding the foregoing, CloudEnablers may identify Customer with its name and logo as its customer on the website of CloudEnablers, and in its marketing materials. 
  6. LIABILITY LIMITATION. This liability limitation shall govern only the Enterprise Version:  EXCEPT FOR EITHER PARTY’S BREACH OF CONFIDENTIALITY OR CUSTOMER’S MISAPPROPRIATION OF INTELLECTUAL PROPERTY, IN NO EVENT SHALL EITHER PARTY (OR ITS AFFILIATES OR LICENSORS) BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND (INCLUDING FOR DATA LOSS OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING TO CORESTACK, THE DOCUMENTATION OR THIS AGREEMENT, OR USE THEREOF, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  EXCEPT FOR THE EXCLUSIONS SET FORTH IN THE PRECEDING SENTENCE AND CLOUDENABLERS’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 4.2, EACH PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID AND PAYABLE BY CUSTOMER FOR CORESTACK FOR THE TWELVE MONTHS IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO THE BREACH. This liability limitation shall govern only the Professional Version:  EXCEPT FOR EITHER PARTY’S BREACH OF CONFIDENTIALITY OR CUSTOMER’S MISAPPROPRIATION OF INTELLECTUAL PROPERTY, IN NO EVENT SHALL EITHER PARTY (OR ITS AFFILIATES OR LICENSORS) BE LIABLE FOR ANY DAMAGES INCLUDING DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR KIND (INCLUDING FOR DATA LOSS OR BUSINESS INTERRUPTION) ARISING OUT OF OR RELATING TO CORESTACK, THE DOCUMENTATION OR THIS AGREEMENT, OR USE THEREOF, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN THE EVENT THAT THE LIABILITY LIMITATION IS NOT ENFORCEABLE, THEN CLOUDENABLERS’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO $100.This paragraph shall apply to the Enterprise Version and the Professional Version:  FOR CLARITY, THE ABOVE APPLICABLE LIMITATIONS SHALL NOT LIMIT CUSTOMER’S OBLIGATION TO PAY FEES UNDER SECTION 2.1.  NO CLAIM AGAINST CLOUDENABLERS MAY BE BROUGHT MORE THAN ONE YEAR AFTER THE FACTS GIVING RISE TO SUCH CLAIM HAS ARISEN.  THIS LIABILITY LIMITATION FORMS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES AND SHALL SURVIVE AND APPLY EVEN IF ANY REMEDY IS FOUND TO HAVE FAILED ITS PURPOSE. 

  7. TERM.  Unless earlier terminated pursuant to this Agreement, this Agreement will have an initial term of 12 months (the “Initial Term”) and will automatically renew for one additional renewal term of 12 months (the “Renewal Term”) at the established pricing as of the end of the Initial Term, unless a party provides the other party with written notice of termination at least 60 days prior to the end of the Initial Term.  “Term” shall mean the Initial Term together with the Renewal Term. This Agreement may be terminated by a party upon written notice to the other party (i) if the other party breaches a material term of this Agreement that is uncured within 30 days after delivery of notice of such breach, or (ii) 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 not dismissed within 30 days.  CloudEnablers reserves the right to suspend and/or terminate this Agreement upon five days’ notice if Customer fails to pay any Fees when due or breaches Section 1.  On any expiration or termination of this Agreement, (a) the licenses granted to Customer in Section 1.1 will automatically terminate and Customer will immediately cease all use of CoreStack and the Documentation, (b) each party will return or delete the other party’s Confidential Information in its possession or control, and if requested, such party will certify in writing that it has complied with the foregoing, and (c) the provisions of Sections 1.4, 1.5, 2 through 7 and 9 will survive any expiration or termination of this Agreement.  Upon expiration of this Agreement, Customer will pay CloudEnablers any unpaid amounts that are owed to CloudEnablers for the Term.  Upon termination of this Agreement based on Customer’s breach (following any applicable cure period), Customer will pay CloudEnablers any unpaid amounts that would have been owed to CloudEnablers for the remainder of the then-current Term if such early termination had not occurred as well as any other amounts owed to CloudEnablers under this Agreement, without limiting CloudEnablers’s other rights and remedies.  Upon termination of this Agreement based on CloudEnablers’s breach (following any applicable cure period), CloudEnablers will refund Customer any amounts pre-paid pursuant to this Agreement for the remaining full calendar months in the then-current Term.  Customer is solely responsible for exporting the Customer Data from CoreStack prior to this Agreement’s termination, and CloudEnablers agrees to assist Customer at its then current service fees. 
  8. REGULATORY
    1. Government Customers.  If Customer is the United States government, or anyone that is licensing CoreStack pursuant to an United States government contract or with United States government funds, CloudEnablers is licensing CoreStack and the Documentation in accordance with the following: CoreStack and the Documentation are “commercial items” as that term is defined in 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.211, 12.212, 227.7102-1 through 227.7102-3 and 227.7202-1 through 227.7202-4, including its successor provisions, as applicable, all government end users acquire only those rights in CoreStack and the Documentation that are expressly granted in this Agreement.  In the case of any other government, CloudEnablers’s rights are protected to the maximum extent possible as set forth in this Agreement, but in any event to at least the same extent such rights would be protected under this Section. 
    2.  Compliance with Laws.  Customer agrees to comply with all laws applicable to the use of CoreStack, including laws governing technology use and transfer (e.g., U.S. Export Administration Regulations), not to use or transfer any technology or data in violation of such laws, not to allow access or use by persons or entities restricted by the United States or any other government, and not to permit CoreStack to be used in any way that violates any applicable law. 
  9. PERSONAL INFORMATION, DATA PROTECTION AND SECURITY. 
    1. Personal Information.  CloudEnablers and Customer acknowledge that in performing their obligations hereunder, CloudEnablers may obtain from Customer or have access to, or otherwise store, process or transmit, certain personally identifiable information of Customer’s Authorized Users.  “Personally Identifiable Information” means an individual’s identity and includes such individual’s name or alias, residential or business address, financial account information, social security number, email addresses, passport number, driver’s license number, taxpayer identification number and credit card numbers.   
    2. Limited Use. CloudEnablers represents, warrants and covenants that at all times during the term of this Agreement, it will comply with its obligations under all applicable privacy, security and data protection laws, rules and regulations of any jurisdiction in the United States of America, and all then-current industry standards, guidelines and practices with respect to privacy, security and data protection, including the collection, processing, storage, protection and disclosure, of Personally Identifiable Information. 
    3. Security Measures. At all times it is in possession of Personally Identifiable Information, CloudEnablers shall maintain a data security program, and will: (i) implement and maintain commercially reasonable  security procedures and practices appropriate to the nature of the Personally Identifiable Information and take such other actions as are necessary to maintain conformance with industry standards of security and (ii) take reasonable measures to protect against any anticipated or actual threats or hazards to the security of the Personally Identifiable Information.  In the event of a breach of CloudEnablers security, CloudEnablers shall promptly notify Customer that a security breach has occurred. CloudEnablers shall ensure that (a) to the extent shared environments exist with other businesses for all WANS, LANS, Network connections, dial-up connections, storage and distributed systems, that all access to Personally Identifiable Information is restricted by employee function and position to only those CloudEnablers employees or contractors who are involved in the administration of the Services to Customer described in this Agreement; (b) all system connected terminals are equipped with access control (password protection), time-out for non-use; and (c) if Personally Identifiable Information is to reside on any CloudEnablers System, then standards and security practices must be resident, including host access control, personal computer access control and virus protection, and LAN access controls.  CloudEnablers shall take reasonable measures to secure and defend the Services location(s) against “hackers” and others who may seek to obtain access to Personally Identifiable Information without the consent of Customer.  CloudEnablers shall periodically check log-files for potential areas where security could be breached.  CloudEnablers will maintain firewall protection and intrusion detection software. 
    4. Requests for Personally Identifiable Information. If CloudEnablers receives any legal request or process in any form seeking disclosure of or if CloudEnablers should be advised by counsel of any obligation to disclose Personally Identifiable Information, it will provide Customer with prompt prior notice of such request or advice so that Customer may seek a protective order or pursue other appropriate remedies to protect the confidentiality of such Personally Identifiable Information.  CloudEnablers agrees to furnish only that portion of the information which is legally required to be furnished and, in consultation with Customer, to use all reasonable efforts to assure that the Personally Identifiable Information is maintained in confidence by the party to whom it is furnished. 
    5. Notification of Security Breach and Incident Response. CloudEnablers shall (a) promptly notify Customer of any material unauthorized possession, security breach, use or knowledge, or attempted possession or use thereof (“Security Breach”), of the Personally Identifiable Information (or any system on which Personally Identifiable Information may be stored or maintained) by any person or entity which may become known to CloudEnablers; (b) promptly furnish to Customer full details of the unauthorized possession, use or knowledge, or attempted possession or use thereof, and use reasonable efforts to investigate any unauthorized possession, use or knowledge, or attempted possession or use thereof, of the applicable Personally Identifiable Information; (c) fully cooperate with Customer in any litigation and investigation against third parties deemed necessary by such party to protect its proprietary rights; and (d) promptly take effective action to prevent a recurrence of any such unauthorized possession, use or knowledge of the Personally Identifiable Information.  CloudEnablers shall bear all reasonable and necessary costs and expense arising out of any Security Breach.  Customer shall also have the right to audit and investigate CloudEnablers in the event of a Security Breach and CloudEnablers shall fully cooperate 
  10. MISCELLANEOUS.  
    1. Relationship:  The parties are independent contractors, and nothing in this Agreement shall be deemed to constitute a joint venture, partnership or similar relationship between the parties, nor constitute any party as the agent of the other for any purpose.   
    2. Entire Agreement:  This Agreement, together with the Order(s), constitutes the parties’ entire agreement with respect to its subject matter, and supersedes all prior or contemporaneous communications, understandings or agreements regarding its subject matter.  Any use of the Customer’s pre-printed forms, such as purchase orders, are for convenience only, and any terms and conditions in the Customer’s pre-printed forms that are in addition to, inconsistent or in conflict with, or different than, this Agreement shall be given no force or effect.  Neither commencement of performance, nor failure to object to any additional, inconsistent, conflicting or different terms and conditions from the Customer, nor delivery, by CloudEnablers shall constitute an acceptance of any such terms and conditions proposed by the Customer that are in addition to, inconsistent or in conflict with, or different than, this Agreement.   
    3. Modifications; Waivers:  This Agreement may only be modified, or any rights under it waived, by a written document signed by duly authorized representatives of the parties.  
    4. Severability:  If any provision of this Agreement is declared or found to be unenforceable, then such provision will be stricken or modified to the extent necessary to make it enforceable while preserving the parties’ original intent to the maximum extent possible. The remaining provisions of this Agreement will remain in full force and effect.   
    5. Governing Law:  This Agreement shall be governed by the laws of the State of Washington, United States, without regard to its conflict of law principles.  This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.  Assignment.  Either party may assign or transfer this Agreement to any affiliate or in connection with any acquisition, consolidation, merger, reorganization, transfer of all or substantially all of its assets or other business combination, or by operation of law without the other party’s consent and without providing notice.  CloudEnablers may subcontract an obligation under this Agreement to a subcontractor without the Customer’s consent and without providing notice, provided that CloudEnablers shall remain responsible for its subcontractor’s performance.  Subject to the foregoing, this Agreement will bind and benefit the parties and their respective successors and permitted assigns.  Each of the Parties to this Agreement consents to the exclusive jurisdiction and venue of the state and federal courts of King County. 
    6. Third Party Beneficiaries:  Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto, CloudEnablers’s affiliates and the licensors of CloudEnablers and its affiliates, and their respective successors and permitted assigns any rights or obligations to enforce this Agreement.   
    7. Force Majeure:  Neither party shall be liable to the other for failure or delay in the performance of an obligation under this Agreement if such failure or delay is caused by a condition that is beyond the reasonable control of and is not caused by the negligence of the non-performing party, provided that such non-performing party gives prompt written notice of such condition and resumes its performance as soon as possible.  

11. Disputes:   

  1. Negotiation.  In the event a dispute arises between Licensee and Company regarding the application or interpretation of any provision of this Agreement, the aggrieved Party shall promptly notify the other Party to this Agreement of the dispute.  If the Parties fail to resolve the dispute within ten business days after receipt of such notice, each Party shall, within five business days thereafter, escalate such dispute to a member of its senior management team. 
  2. Mediation.  If a settlement is not achieved within ten (10) business days after a meeting between senior management representatives, then the Parties agree to attempt to resolve the dispute through mediation by submitting the dispute to mediation in accordance with the then current rules for mediation promulgated by the American Arbitration Association (“AAA”), including the Optional Rules for Emergency Measures of Protections which provide for injunctive relief and measures for the protection or conservation of property and disposition of perishable goods.  The mediation proceedings shall be held in Seattle, Washington, and each Party shall bear its own expenses and an equal share of the expenses of the mediator and the fees of AAA.  Such mediation will be held within thirty (30) business days of submission to AAA. 
  3. Binding Arbitration.  If the dispute is not resolved by mediation, then the Parties agree to resolve the dispute by binding arbitration before one arbitrator administered in accordance with the Commercial Arbitration Rules of the AAA including the Optional Rules for Emergency Measures of Protections, which provide for injunctive relief and measures for the protection or conservation of property and disposition of perishable goods.  Arbitration shall be held in the City of Seattle, Washington, or such other place as the Parties may agree and shall include an award of attorneys’ fees (and the amount of such fees) to the prevailing Party.  The arbitration shall be held in front of a single arbitrator. The Parties shall agree on the selection of the arbitrator.  Discovery shall be limited to one set of interrogatories, one set of request for admissions, and one set of requests for production of documents. In allowing discovery, the arbitrator shall be governed by the Federal Rules of Civil Procedure then in effect in defining the scope and direction of such discovery and the admissibility of evidence.  The arbitrator shall be required to make written findings of fact and render written opinions of law.  Subject to any limitations set forth herein above, any award of damages pursuant to such arbitration shall be included in a written decision signed by the arbitrator which shall state the reasons upon which the award was based, including all the elements involved in the calculation of any award of damages.  The arbitrator’s award shall be final and binding, and judgment thereon may be entered in any court having jurisdiction over the party against which enforcement is sought; provided that any such award rendered by the arbitrator shall be strictly in conformance to and in accordance with the terms and conditions of this Agreement including, without limitation, the limitation of liability provisions contained herein.  Other than those matters involving injunctive relief as a remedy or any action necessary to enforce the award of the arbitrator, the Parties agree that the provisions of this Section 10.3 are a complete defense to any suit, action or other proceedings instituted in any court or before any administrative tribunal with respect to any dispute or controversy arising under or relating to this Agreement.  Nothing in this Section 10.3 shall prevent either Party from exercising its rights to terminate this Agreement as specified herein.  The Parties undertake and agree that all arbitral proceedings conducted under this Section 10.3 shall be kept confidential, and all information, documentation, and materials in whatever form disclosed in the course of such arbitral proceeding shall be used solely for the purpose of those proceedings. 
  4. Waiver of Court or Jury.  Each Party hereto waives any rights to a trial by jury and/or trial by court under any applicable law it may have with respect any claim in connection with or arising out of or relating to this Agreement. 
  5. Survival.  The provisions of this Section 10 shall survive the expiration or termination of this Agreement for any reason. 
  6. Opt Out.  Licensee may opt out of the binding arbitration, as set forth in this Section 10, within thirty days of the date Licensee first accepted the terms and conditions of this Agreement by writing to the Chief Executive Officer of the Company at the principal place of business set forth in the preamble. In order to be effective, the person giving notice of the opt out must include the full name of the company, his/her full name, a certification that such person is authorized to give the opt out notice  and a clear indication of the Licensee’s intention to opt out of such binding arbitration. 

 

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