Terms & Conditions of Purchase and Use

This agreement (the “agreement”) governs licensee’s acquisition & use of ELEFense service. By executing an order form that references this agreement, licensee agrees to the terms of this agreement. If the individual signing the order form for licensee is signing on behalf of a company or other legal entity, such individual represents that he or she has the authority to bind that company or other legal entity.

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1. SCOPE OF AGREEMENT

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This Agreement governs ELEFense provision of services to Licensee (“Services”), subject to one or more ordering documents describing the Services, each of which incorporates this Agreement by reference.

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2. PROPRIETARY RIGHTS

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1. License to Services. Subject to the terms & conditions of this Agreement, ELEFense grants to Licensee during the Term a non-exclusive, non-transferable, non-sublicensable, license to access & use the Services Licensee orders solely for the purposes described on the applicable Proposal Form(s).

2. Restrictions on Use of Services. The Services are licensed to Licensee for internal use only. In connection with Licensee’s use of the Services, Licensee will comply with all applicable laws, rules & regulations. Licensee will not, & will not permit any third party to:

   1. copy, modify, translate, or create derivative works of the Services;

   2. reverse engineer, decompile, disassemble or otherwise attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques, or algorithms of the Services;

   3. lend, lease, offer for sale, sell or otherwise use the Services for the benefit of third parties; or

   4. attempt to circumvent any license, timing or use restrictions that are built into the Services.

3. ELEFense Ownership of Services. Except for the rights granted in Section 2(a) above, ELEFense retains all rights, title & interest, including all intellectual property rights, in & to the Services. Licensee acknowledges that the Ser-vices include ELEFense valuable trade secrets & improper use or disclosure would cause ELEFense irreparable harm. Accordingly, Licensee agrees to use the Services solely as authorized in this Agreement. Licensee further acknowledges that the license granted pursuant to this Agreement is not a sale & does not transfer to Licensee title or ownership of the Services, but only a right of limited use. All rights not expressly granted hereunder are reserved to ELEFense. (d) Licensee Data. SUBJECT TO THE TERMS & CONDITIONS OF THIS AGREEMENT, LICENSEE GRANTS ELEFENSE NO RIGHT TO Customer DATA.

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3. USE OF THE SERVICES

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1. ELEFense Responsibilities. ELEFense will make the Services available in accordance with the ELEFense Service Level Agreement (SLA). ELEFense will maintain appropriate administrative, technical & physical safeguards to protect the security, confidentiality & integrity of Data.

2. Licensee Responsibilities. Licensee will

   1. be responsible for its compliance with this Agreement,

   2. use commercially reasonable efforts to prevent unauthorized access to or use of the Services & notify ELEFense immediately of any such unauthorized access and/or use of which Licensee becomes aware, &

   3. use the Ser-vices only in accordance with this Agreement & all applicable laws & government regulations. Licensee will not make Services avail-able to any third party.

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4. FEES

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1. Fees. Licensee will pay ELEFense the fees described on the applicable Proposal Form(s) (the “Fees”). All Fees are due in advance & are based on Services ordered rather than actual usage. Payment obligations are non-cancellable & subject to Section 6(d), fees paid are non-refundable.

2. Payment Terms. For all Fees, Licensee will provide ELEFense with a valid check, money order, or alternative document reasonably acceptable to ELEFense. Licensee is solely responsible for providing ELEFense accurate & complete billing & contact information & for notifying ELEFense of any changes to such information.

3. Overdue Charges. Late Fee payments will 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, from the date such payment was due until the date paid.

4. Taxes. Licensee will be responsible for payment of all taxes. If ELEFense is required to pay any such taxes based on the licenses granted in this Agreement or on Licensee’s use of the Services, then such taxes will be billed to & paid by Licensee. For the avoidance of doubt.

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5. CONFIDENTIAL INFORMATION

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1. Definition of Confidential Information. As used herein, "Confidential Information" means all confidential 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 & the circumstances of disclosure. Licensee’s Confidential Information will include Data; ELEFense Confidential Information will include the Services; & Confidential Information of each Party will include business & marketing plans, technology & technical information, product plans & designs, & business processes disclosed by such Party. However, Confidential Information (other than Data) will not include any information that

   1. is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party,

   2. was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party,

   3. is received from a third party without breach of any obligation owed to the Disclosing Party, or

   4. was independently developed by the Receiving Party.

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 in no event less than reasonable care). The Receiving Party agrees

   1.  not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, &

   2.  except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its & its affiliates’ employees, contractors & agents who need such access for purposes consistent with this Agreement & 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 Proposal Form to any third party other than its affiliates & its legal counsel & accountants without the other party’s prior written consent.

   3.  Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) & 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, & the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling & providing secure access to such Confidential Information.

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6. TERM & TERMINATION

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1. Term of Agreement. This Agreement takes effect on the date Licensee first signs a Proposal Form incorporating these terms & will remain in effect until all applicable Proposal Forms have expired or been terminated.

2. Term of Subscriptions. The term of each Service subscription will be described in the applicable Proposal Form. Except as otherwise de-scribed in a Proposal Form, subscriptions for a Service will automatically renew for additional periods equal in length to the expiring subscription term unless either party provides notice of non-renewal at least 60 days prior to commencement of the next renewal term.

3. Termination. If either Party commits a material breach or default in the performance of any of its obligations under this Agreement, then the other Party may terminate this Agreement, provided that the terminating Party gives the breaching or defaulting Party written notice of termination specifying the underlying breach or default within 90 days of discovery of such breach or default.

4. Effect of Termination. Upon expiration or termination of this Agreement for any reason, the rights, licenses & access to the Services granted to Licensee under this Agreement will immediately terminate. If this Agreement expires, or if ELEFense terminates this Agreement pursuant to Section 6(c), all Fees will become immediately due & payable to ELEFense.

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7. REPRESENTATIONS & WARRANTIES

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Each party represents & warrants to the other party that:

1. it is duly organized, validly existing & in good standing as a corporation or other entity as represented herein under the laws & regulations of its jurisdiction of incorporation, organization or chartering;

2. it has the right, power & authority to enter this Agreement & to grant the rights & licenses granted hereunder & to perform all of its obligations hereunder;

3. the execution of any Proposal Form(s) incorporating this Agreement by its representative whose signature is set forth therein has been duly authorized by all necessary corporate or organizational action of the party;

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8. DISCLAIMER OF WARRANTIES

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You expressly agree that all materials, information, software, products, & services included in or available through the site (the "website content") are provided "as is" & "as available" for your use. The website content is provided without warranties of any kind, either express or implied, including, but not limited to, warranties of title, non-infringement or implied warranties of merchantability or fitness for a particular purpose or otherwise, other than those warranties which are incapable of exclusion, restriction or modification under applicable law. Neither ELEFense, nor our subsidiaries or licensors, make any warranty that the website content of the site is accurate, reliable or correct; that the site will be available at any particular time or location; that any defects or errors will be corrected; that the website content is free of viruses or other harmful components; or that you will achieve successful results from following any instructions, directions or recommendations on the site.

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9. LIMITATION OF LIABILITY

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ELEFense has no liability for any inaccuracies, errors, or omissions on the site, or for the any content submitted on the site. Under no circumstances shall ELEFense be liable for any direct, indirect, punitive, incidental, special or con-sequential damages that result from the use of, or inability to use, the site or from information provided on the site. This limitation applies whether the alleged liability is based on contract, tort, negligence, strict liability or any other basis, even if we have been advised of the possibility of such damage because some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages. Our liability in such jurisdictions shall be limited to the extent permitted by law.

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10. INDEMNIFICATION

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Each party (“Indemnifying Party”) will indemnify, defend & hold the other party (“Indemnified Party”) harm-less from any claim, action, suit or proceeding made or brought against the Indemnified Party arising out of or related to the Indemnifying Party’s breach of any term of this Agreement. (a) ELEFense will indemnify, defend & hold Licensee harmless from any third-party claim, action, suit or proceeding made or brought against Licensee alleging that Licensee’s use of the Services in accordance with this Agreement infringes such third party’s intellectual property rights. In the event of an Infringement Claim, ELEFense may, at its sole option & expense:

1. procure for Licensee the right to continue use of the Services or infringing part thereof; or

2. modify or amend the Services or infringing part thereof, or replace the Services or infringing part thereof with other software having substantially the same or better capabilities; or,

3. if neither of the foregoing is commercially practicable, terminate this Agreement & repay to Licensee a pro rata portion, if any, of any pre-paid Fees. ELEFense will have no liability for an Infringement Claim if the actual or alleged infringement results from

   1. Licensee’s breach of this Agreement,

   2. Licensee’s modification, alteration or addition made to the Services or any use thereof, including any combination of the Services with software not provided by ELEFense,

   3. Licensee’s failure to use any corrections or modifications made available by ELEFense that would not result in any material loss of functionality. ELEFense also disclaims any liability for settlements entered into by Licensee or costs incurred by Licensee in relation to an Infringement Claim that are not pre-approved by ELEFense in writing. THIS SECTION STATES THE ENTIRE LIABILITY OF ELEFENSE WITH RESPECT TO ANY INFRINGEMENT CLAIM.

   4. Licensee will indemnify, defend & hold ELEFense harmless from any claim, action, suit or proceeding.