Terms of Use

OVERTUREXL, LLC. SOFTWARE END USER LICENSE AGREEMENT

THIS SOFTWARE END USER LICENSE AGREEMENT (THE “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN YOU (“CUSTOMER“) AND OVERTUREXL, INC. (“OVERTUREXL”). BY CLICKING THE “I ACCEPT” BUTTON, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS REVIEWED AND ACCEPTS THIS AGREEMENT. IF YOU ARE AGREEING TO THIS AGREEMENT AS AN INDIVIDUAL “CUSTOMER” REFERS TO YOU INDIVIDUALLY. IF YOU ARE AGREEING TO THIS AGREEMENT AS A REPRESENTATIVE OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND “CUSTOMER” REFERS TO THAT ENTITY AND ALL THE USERS. OVERTUREXL MAY MAKE CHANGES TO THIS AGREEMENT AT ANY TIME. CUSTOMER’S CONTINUED USE OF THE OVERTUREXL SOFTWARE AFTER SUCH CHANGES HAVE BEEN POSTED WILL SIGNIFY CUSTOMER’S ASSENT TO AND ACCEPTANCE OF THE REVISED AGREEMENT.

DEFINITIONS

1.1 “Activation Date” means the date on which you register and gain access to the Software.

1.2 “Customer Data” means all data submitted, stored, posted, displayed, transmitted or otherwise provided by or on behalf of Customer.

1.3 “Documentation” means the then-current written and/or electronic end user instructions, technical documentation and help files pertaining to the applicable Software that is provided by OvertureXL together with the delivery of the applicable Cloud Service or otherwise made available by OvertureXL with respect to a particular Product.

1.4 “Intellectual Property Rights” means all intellectual property rights or similar proprietary rights of OvertureXL associated with the Software, Subscription Product, Support Services and Documentation, including, but not limited to (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.

1.5 “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.

1.6 "Open Source Software” means all software that is available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that approved by the Open Source Initiative (www.opensource.org).

1.7 “SLA” means each of the then-current customer support service levels as described at

1.8 “Software” means any software owned by or licensed by OvertureXL, including (i) software provided on a stand-alone basis, (ii) software provided as part of SaaS, or cloud services, and (iii) any upgrades, updates, patches, enhancements, or fixes to any of the foregoing that may be made available by OvertureXL.

1.9 “Subscription Product” means any Software that is licensed by OvertureXL on a term or subscription basis that expires after the applicable term or subscription period ends as set forth in the applicable ordering documentation received by OvertureXL.

1.10 “Support Services” means the support and maintenance services offered by OvertureXL and any upgraded or premium support and maintenance services, if made available by OvertureXL.

1.11 “Term” means the Subscription Product term of use for a period identified in the applicable ordering documentation received by OvertureXL.

LICENSES AND RESTRICTIONS.

2.1 Access and Use License. Subject to Customer’s compliance with the terms and conditions contained in this Agreement and to payment of any applicable fees, OvertureXL hereby grants to Customer, during the relevant Term, a limited, non-exclusive, non-transferable right to access and use the Software in accordance with the Documentation, in each case solely for Customer’s internal business purposes and not for the benefit of any other person or entity.

2.2 Subscription Products. For Software offered on a subscription basis, OvertureXL offers a limited, personal, non-sublicensable, non-transferable, non-exclusive license for the duration of the applicable term or subscription period purchased by Customer to: (i) access, and use the Subscription Product, and (ii) exercise any other rights applicable to the Subscription Product as expressly set forth in the applicable Documentation for such Software. Each instance of the applicable Subscription Product may be used only for the term of the license purchased by Customer as set forth on the applicable order form.

2.3 Restrictions. Except as expressly permitted under this Agreement (including the applicable Documentation), Customer shall not, directly or indirectly, nor shall Customer permit any third party to: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the Intellectual Property Rights of OvertureXL; (b) copy, modify, translate, or create derivative works based on any element of any Intellectual Property Rights of OvertureXL; (c) except as expressly permitted herein, rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to access or use the Intellectual Property Rights of OvertureXL; (d) use the Software for timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer; (e) remove any proprietary notices from the Documentation; (f) publish or disclose to third parties any evaluation, information or results relating to functionality testing, performance, performance comparisons or other benchmarking activities relating to the Software without OvertureXL’s prior written consent; (g) access or use the Software for purposes of designing or developing a competing product or service or otherwise use the Software for any purpose other than its intended purpose; (h) interfere with or disrupt the integrity or performance of the Software or third-party data contained therein; or (i) introduce any Open Source Software into the Software.

2.4 Reservation of Rights. Except as expressly granted in this Agreement, there are no other licenses granted to Customer, express, implied or by way of estoppel. All rights not granted in this Agreement are reserved by OvertureXL.

PASSWORDS; SECURITY

3.1 Passwords. Where applicable, Customer shall choose user logins and passwords to use the Software. Customer shall be responsible for maintaining the confidentiality of all user logins and passwords and for ensuring that each user login and password is used only by the user to which it was issued. Customer agrees to immediately notify OvertureXL of any unauthorized use of any account or login and password issued to Customer or any other breach of security known to Customer. OvertureXL shall have no liability for any loss or damage arising from Customer’s failure to comply with the terms set forth in this Section.

3.2 No Circumvention of Security.Customer may not circumvent or otherwise interfere with any user authentication or security of the Software. Customer will immediately notify OvertureXL of any breach, or attempted breach, of security known to Customer.

3.3 Security. OvertureXL will use commercially reasonable efforts to maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Notwithstanding the foregoing, Customer acknowledges that, notwithstanding any security precautions deployed by OvertureXL, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Software and the data processed thereon including Customer Data. OvertureXL cannot and does not guarantee the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet or otherwise or that any such security precautions will be adequate or sufficient. OvertureXL shall not (a) modify Customer Data, except to the extent necessary to provide Support Services and prevent or address service or technical problems, (b) disclose Customer Data except as compelled by law or as expressly permitted in writing by Customer, or (c) access Customer Data except to provide the Support Services and prevent or address service or technical problems, or at Customer’s request in connection with customer support matters. All Customer Data accessed or, processed or analyzed by or stored shall be subject to the OvertureXL privacy policy located at OvertureXL Privacy Policy.

CUSTOMER OBLIGATIONS.

4.1 Acceptable Use Policy. Customer shall be solely responsible for its actions while using the Software and Support Services. Customer acknowledges and agrees: (a) to abide by all local, state, national, and international laws and regulations applicable; (b) not to send or store data on the Software which violates the rights of any individual or entity established in any jurisdiction; (c) not to upload in any way any information or content that contain Malicious Code or data that may damage the operation of the Software; (d) not to use the Software for illegal, fraudulent, unethical or inappropriate purposes; (e) not to interfere with the use of the Software; (f) not to distribute, promote or transmit through the Software any unlawful, harmful, obscene, pornographic or otherwise objectionable material of any kind or nature; (g) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (h) not to use the Software in any manner that impairs such Software; and (i) to use the Software only in accordance with the Documentation. Customer acknowledges and agrees that OvertureXL neither endorses the contents of any Customer communications, Customer Data, or Other Information (as defined in Section 10.2 below) nor assumes any responsibility for any offensive material contained therein, any infringement of third-party Intellectual Property Rights arising there from or any crime facilitated thereby. OvertureXL may remove any violating content posted or stored using the Software. Notwithstanding the foregoing, OvertureXL does not guarantee, and does not and is not obligated to verify, authenticate, monitor or edit the Customer Data, Other Information, or any other information or data input into or stored in or in connection with use of the Software for completeness, integrity, quality, accuracy or otherwise. Customer shall be responsible and liable for the completeness, integrity, quality and accuracy of Customer Data and Other Information input into the Software or provided by or on behalf of Customer in connection with use of the Software. OvertureXL reserves the right to amend, alter, or modify this Agreement as well as Customer’s conduct requirements as set forth in Section 4.2 of these Terms at any time. OvertureXL may deliver notice of such updated terms or requirements to Customer via e-mail. Customer’s continued access to and use of the Software following issuance of such updated terms or requirements shall constitute Customer’s acceptance thereof.

4.2 Accuracy of Customer’s Contact Information; Email Notices.Customer agrees to provide accurate, current and complete information as necessary for OvertureXL to communicate with Customer from time to time regarding the Software and Support Services, issue invoices or accept payment, or contact Customer for other account-related purposes. Customer agrees to keep any online account information current and inform OvertureXL of any changes in Customer’s legal business name, address, email address and phone number. Customer agrees to accept emails from OvertureXL at the e-mail addresses specified for login purposes. In addition, Customer agrees that OvertureXL may rely and act on all information and instructions provided to OvertureXL by Customer from the above-specified e-mail address.

4.3 Temporary Suspension. OvertureXL may temporarily suspend Customer’s access to the Software in the event that either Customer any of their Users is engaged in, or OvertureXL in good faith suspects Customer is engaged in, any unauthorized conduct (including, but not limited to any violation of this Agreement). OvertureXL will attempt to contact Customer prior to or contemporaneously with such suspension; provided, however, that OvertureXL’s exercise of the suspension rights herein shall not be conditioned upon Customer’s receipt of any such notification. A suspension may take effect for Customer’s entire account. Customer agrees that OvertureXL shall not be liable to Customer, or any other third party if OvertureXL exercises its suspension rights as permitted by this Section. Upon determining that Customer has ceased the unauthorized conduct leading to the temporary suspension to OvertureXL’s reasonable satisfaction, OvertureXL shall reinstate Customer’s access and use of the Software. Notwithstanding anything in this Section to the contrary, OvertureXL’s suspension of access to the Software is in addition to any other remedies that OvertureXL may have under this Agreement or otherwise, including but not limited to termination of this Agreement for cause. Additionally, if there are repeated incidences of suspension, regardless of the same or different cause and even if the cause or conduct is ultimately cured or corrected, OvertureXL may, in its reasonable discretion, determine that such circumstances, taken together, constitute a material breach.

4.4 Data Privacy. OvertureXL shall process Customer Data in accordance with this Agreement, OvertureXL’s then-current privacy policy (https://overturexl.com/privacy-policy.html), and the applicable Documentation. OvertureXL shall maintain administrative, physical and technical safeguards consistent with industry standards and the Documentation, which are designed to provide security, confidentiality and integrity of the Customer Data processed by OvertureXL. To the extent that OvertureXL processes any Personal Data (as defined in the Data Processing Addendum) contained in Customer Data, on Customer’s behalf, in the provision of the Software and/or the Support Services, the terms of the Data Processing Addendum (“DPA”), as may be updated by OvertureXL from time to time, shall apply.

AVAILABILITY; SUPPORT SERVICES; HOSTING SERVICES.

5.1 Availability. OvertureXL shall provide the Software to Customer in accordance with the applicable SLA (if any); otherwise, subject to the terms and conditions of this Agreement, OvertureXL will use commercially reasonable efforts to make the Cloud Services available with minimal downtime 24 hours a day, 7 days a week; provided, however, that the following are excepted from availability commitments: (a) planned downtime (with regard to which OvertureXL will use commercially reasonable efforts to provide at least 72 hours advance notice and routine maintenance times and as otherwise specified by OvertureXL, or (b) any unavailability caused by circumstances beyond OvertureXL’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems or Internet service provider failures or delays. Certain enhancements to the Software provided by OvertureXL in connection therewith made generally available at no cost to all subscribing customers during the applicable Term will be made available to Customer at no additional charge.

5.2 Support.OvertureXL makes a variety of Support Services offerings available to Customer. OvertureXL will provide Customer with the level of support to which Customer is entitled based on Customer’s purchase as specified in a separate order for such Support Services.

REPRESENTATIONS AND WARRANTIES; DISCLAIMER.

6.1 Mutual Representations and Warranties. Each party represents, warrants and covenants that: (a) it has the full power and authority to enter into this Agreement and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and (b) its acceptance of and performance under this Agreement shall not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust.

6.2 Standard Warranty; Warranty Disclaimer.OvertureXL warrants to Customer that during the applicable Term, the Software will conform in all material respects to the applicable published specifications for such Software. The foregoing warranty does not extend to any Software that is modified or altered or is not used in accordance with the applicable OvertureXL published specifications and/or Documentation. Customer’s sole and exclusive remedy, and OvertureXL’s sole and exclusive obligation, for any breach of the foregoing warranty will be, at OvertureXL’s option, the repair or replacement of or (at OvertureXL’s option if repair or replacement is impractical) refund of the fees received by OvertureXL for the period in which the Software did not materially conform and for which full documentation and proof of non-conformity is provided to OvertureXL. Such refund will be paid to Customer making the warranty claim. OvertureXL is not responsible for any difference between the amount paid to OvertureXL for the non-conforming Software and the amount paid by Customer for such non-conforming Cloud Service. EXCEPT FOR THE WARRANTIES SET FORTH IN THIS SECTION 7, THE SOFTWARE IS PROVIDED ON AN AS-IS BASIS. CUSTOMER’S USE OF THE SOFTWARE IS AT ITS OWN RISK. OVERTUREXL DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ANY WARRANTIES MADE BY OVERTUREXL ARE FOR THE BENEFIT OF CUSTOMER AND NOT FOR THE BENEFIT OF ANY THIRD PARTY. ANY MATERIALS PROVIDED ARE LICENSED AND NOT SOLD. OVERTUREXL DOES NOT WARRANT THAT: (A) THE USE OF THE SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; OR (D) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS. OVERTUREXL IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.

INDEMNIFICATION.

7.1 OvertureXL Indemnity.

(a) General. OvertureXL, at its expense, shall defend Customer and their respective officers, directors and employees (“Customer Indemnified Parties”) from and against all actions, proceedings, claims and demands by a third party (a “Third-Party Claim”) alleging that the Software provided by OvertureXL infringes any copyright or patent or misappropriates any trade secret and shall pay all damages, costs and expenses, including attorneys’ fees and costs finally awarded by a court of competent jurisdiction against Customer Indemnified Parties from any such Third-Party Claim. OvertureXL’s obligations under this Section 8.1(a) are conditioned upon (i) OvertureXL being promptly notified in writing of any Third-Party Claim under this Section, (ii) OvertureXL having the sole and exclusive right to control the defense and settlement of such Third-Party Claim, and (iii) Customer providing all reasonable assistance (at OvertureXL’s expense and reasonable request) in the defense of such Third-Party Claim. Any settlement that obligates Customer will require Customer’s prior written approval. Customer may, at its own expense, engage separate counsel to advise Customer regarding a Third-Party Claim and to participate in the defense of the claim, subject to OvertureXL’s right to control the defense and settlement.

(b) Mitigation. If any claim which OvertureXL is obligated to defend has occurred, or in OvertureXL’s determination is likely to occur, OvertureXL may, in its sole discretion and at its option and expense (i) obtain for Customer the right to continued use of the Software, (ii) substitute a functionality equivalent, non-infringing replacement for the Software, (iii) modify the applicable Software to make it non-infringing and functionally equivalent, or (iv) terminate this Agreement and refund to Customer any prepaid amounts attributable the period of time between the date Customer was unable to use the Software due to such claim and the remaining days in the then- current Term.

(c) Exclusions. Notwithstanding anything to the contrary in this Agreement, the foregoing indemnification obligations shall not apply with respect to a Third-Party Claim of infringement if such claim arises out of (i) Customer’s use of infringing Customer Data; (ii) use of the Software or Support Services in combination with any software, hardware, network or system not supplied by OvertureXL where the alleged infringement relates to such combination, (iii) any modification or alteration of the Software other than by OvertureXL, (iv) Customer’s continued use of the Software or Support Services after OvertureXL notifies Customer to discontinue use because of an infringement claim; or (v) Customer’s violation of applicable law.

(d) Sole Remedy. THE FOREGOING STATES THE ENTIRE LIABILITY OF OVERTUREXL WITH RESPECT TO THE INFRINGEMENT OF ANY INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS.

7.2 Customer Indemnity. Customer shall defend OvertureXL and its licensors and their respective officers, directors and employees (“OvertureXL Indemnified Parties”) from and against any and all Third-Party Claims which arise out of or relate to: (a) a claim or threat that the Customer Data infringes, misappropriates or violates any third party’s Intellectual Property Rights; (b) Customer’s use or alleged use of the Software other than as permitted under this Agreement; (c) arising from the occurrence of any of the exclusions set forth in Section 8.1(c) (Exclusions); or (d) arising out of or relating to any violation of Section 4.5, or any violation of applicable law. Customer shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) incurred by OvertureXL Indemnified Parties from any such Third-Party Claim. Customer’s obligations under this Section 8.2 are conditioned upon (x) Customer being promptly notified in writing of any Third-Party Claim under this Section, (y) Customer having the sole and exclusive right to control the defense and settlement of the Third-Party Claim, and (z) OvertureXL providing all reasonable assistance (at Customer’s expense and reasonable request) in the defense of such claim. In no event shall Customer settle any Third-Party Claim without OvertureXL’s prior written approval. OvertureXL may, at its own expense, engage separate counsel to advise OvertureXL regarding a Third-Party Claim and to participate in the defense of such Third-Party Claim, subject to Customer’s right to control the defense and settlement.

CONFIDENTIALITY.

8.1 Confidential Information. “Confidential Information” means any and all non-public technical and non-technical information disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) in any form or medium, whether oral, written, graphical or electronic, pursuant to this Agreement, that is marked confidential and proprietary, or that the Disclosing Party identifies as confidential and proprietary, or that by the nature of the circumstances surrounding the disclosure or receipt ought to be treated as confidential and proprietary information, including but not limited to: (a) techniques, sketches, drawings, models, inventions (whether or not patented or patentable), know-how, processes, apparatus, formulae, equipment, algorithms, software programs, software source documents, APIs, and other creative works (whether or not copyrighted or copyrightable); (b) information concerning research, experimental work, development, design details and specifications, engineering, financial information, procurement requirements, purchasing, manufacturing, customer lists, business forecasts, sales and merchandising and marketing plans and information; and (c) proprietary or confidential information of any third party who may disclose such information to Disclosing Party or Receiving Party in the course of Disclosing Party’s business. Confidential Information also includes all summaries and abstracts of Confidential Information.

8.2 Non-Disclosure. Each party acknowledges that in the course of the performance of this Agreement, it may obtain the Confidential Information of the other party. The Receiving Party shall, at all times, both during the Term and thereafter, keep in confidence and trust all of the Disclosing Party’s Confidential Information received by it. The Receiving Party shall not use the Confidential Information of the Disclosing Party other than as necessary to fulfill the Receiving Party’s obligations or to exercise the Receiving Party’s rights under this Agreement. Each party agrees to secure and protect the other party’s Confidential Information with the same degree of care and in a manner consistent with the maintenance of such party’s own Confidential Information (but in no event less than reasonable care), and to take appropriate action by instruction or agreement with its employees or other agents who are permitted access to the other party’s Confidential Information to satisfy its obligations under this Section. The Receiving Party shall not disclose Confidential Information of the Disclosing Party to any person or entity other than its officers, employees and agents who need access to such Confidential Information in order to effect the intent of this Agreement and who are subject to confidentiality obligations at least as stringent as the obligations set forth in this Agreement.

8.3 Exceptions to Confidential Information. The obligations set forth in Section 9.2 (Non- Disclosure) shall not apply to the extent that Confidential Information includes information which: (a) was known by the Receiving Party prior to receipt from the Disclosing Party either itself or through receipt directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) was developed by the Receiving Party without use of the Disclosing Party’s Confidential Information; or (c) becomes publicly known or otherwise ceases to be secret or confidential, except as a result of a breach of this Agreement or any obligation of confidentiality by the Receiving Party. Nothing in this Agreement shall prevent the Receiving Party from disclosing Confidential Information to the extent the Receiving Party is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, the Receiving Party shall (x) assert the confidential nature of the Confidential Information to the agency; (y) immediately notify the Disclosing Party in writing of the agency’s order or request to disclose; and (z) cooperate fully with the Disclosing Party in protecting against any such disclosure and in obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality.

8.4 Injunctive Relief. The Parties agree that any unauthorized disclosure of Confidential Information may cause immediate and irreparable injury to the Disclosing Party and that, in the event of such breach, the Receiving Party will be entitled, in addition to any other available remedies, to seek immediate injunctive and other equitable relief, without bond and without the necessity of showing actual monetary damages.

8.5 Return of Confidential Information. Customer agrees to (a) destroy all Confidential Information within fifteen (15) days of the date of termination of this Agreement; or (ii) if requested by OvertureXL, return any Confidential Information to OvertureXL within thirty (30) days of OvertureXL’s request.

PROPRIETARY RIGHTS.

9.1 OvertureXL. mAs between OvertureXL and Customer, all right, title and interest in the Software, Support Services and any other OvertureXL materials furnished or made available hereunder, and all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Customer regarding the Software, including all copyright rights, patent rights and other Intellectual Property Rights in each of the foregoing, belong to and are retained solely by OvertureXL or OvertureXL’s licensors and providers, as applicable. Customer hereby does and will irrevocably assign to OvertureXL all evaluations, ideas, feedback and suggestions made by Customer to OvertureXL regarding OvertureXL’s Software, Documentation and Support Services (collectively, “Feedback”) and all Intellectual Property Rights in the Feedback.

9.2 Customer Data. As between OvertureXL and Customer, all right, title and interest in the Customer Data, belongs to and are retained solely by Customer. Customer hereby grants to OvertureXL a limited, non-exclusive, royalty-free, worldwide license to use the Customer Data and perform all acts with respect to the Customer Data as may be necessary for OvertureXL to provide Support Services to Customer. To the extent that receipt of the Customer Data requires OvertureXL to utilize any account information from a third-party service provider, Customer shall be responsible for obtaining and providing relevant account information and passwords, and OvertureXL hereby agrees to access and use the Customer Data solely for Customer’s benefit and as set forth in this Agreement. As between OvertureXL and Customer, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data and the rights to use and access such Customer Data. Customer has obtained all necessary consents, as applicable, for the processing and transferring of Customer Data to OvertureXL as described in this Section 10.2 and elsewhere in this Agreement.

LIMITATION OF LIABILITY.

10.1 No Consequential Damages. NEITHER OVERTUREXL NOR ITS LICENSORS OR CUSTOMER SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF OVERTUREXL OR ITS LICENSORS OR CUSTOMER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF THE SOFTWARE OR SUPPORT SERVICES, OR ANY ANCILLARY SERVICES OR THE RESULTS THEREOF. OVERTUREXL WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.

10.2 Limits on Liability. THE TOTAL AGGREGATE LIABILITY OF OVERTUREXL AND ITS LICENSORS IN RESPECT OF ALL CAUSES OF ACTION ARISING OUT OF OR IN CONNECTION WITH THESE TERMS (WHETHER FOR BREACH OF CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE) SHALL NOT EXCEED THE GREATER OF (a) THE AMOUNTS PAID BY CUSTOMER TO OVERTUREXL UNDER THESE TERMS DURING THE PERIOD OF SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED, AND (b) ONE HUNDRED UNITED STATES DOLLARS (US $100).

10.3 Essential Purpose. CUSTOMER ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 11 (LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.

TERM AND TERMINATION.

11.1 Term. This Agreement commences on the Activation Date and continues until the expiration or termination of all Term(s), unless earlier terminated as provided in this Agreement. Terms shall automatically renew for additional periods equal to the expiring Term unless one party gives the other written notice of non-renewal at least thirty (30) calendar days prior to the expiration of the then current Term; provided that the term of any subscription to Software that is purchased by Customer shall not extend unless the fees for such term are paid by Customer.

11.2 Termination for Cause. A party may terminate this Agreement, upon written notice to the other party in the event the other party (a) files a petition for bankruptcy or has a petition for bankruptcy filed against it that is not dismissed within sixty (60) calendar days after filing or admits its inability to pay its debts as they mature, makes an assignment for the benefit of its creditors or ceases to function as a going concern or to conduct its operations in the normal course of business and such termination shall occur immediately upon notice; or (b) commits a material breach of any provision of this Agreement and does not remedy such breach within thirty (30) calendar days after receipt of notice from the non-defaulting party or such other period as the parties may agree, or (c) OvertureXL does not timely receive payment of fees. OvertureXL reserves the right to temporarily suspend or permanently terminate use of or access to the Software in the event that Customer violates any terms of this Agreement

11.3 Effects of Termination. Upon expiration or termination of this Agreement, Customer shall (a) cease all use of and access to the Software, Support Services and Documentation, and the performance of all Support Services shall cease, (b) return or destroy (and certify same in writing) all copies of Documentation in Customer’s possession or control, and (c) pay OvertureXL all amounts owed up to the effective date of termination. Any termination of this Agreement will also terminate the rights granted hereunder. Upon request by Customer within thirty (30) days after the effective date of termination or expiration of this Agreement, OvertureXL will for a period of no longer than sixty (60) days make Customer Data available to Customer for export or download as provided in the Documentation. OvertureXL shall have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control. ALL FEES AND PAID TO OVERTUREXL ARE NON-REFUNDABLE.

11.4 Survival. This Section and Sections 1, 2.3 (Restrictions), 2.4 (Reservation of Rights), 7.3 (Standard Warranty; Warranty Disclaimer), 9 (Confidentiality), 10 (Proprietary Rights), 11 (Limitation of Liability), 12.4 (Effects of Termination) and 13 (Miscellaneous) shall survive any termination or expiration of these Terms.

MISCELLANEOUS.

12.1 Notices. OvertureXL may give notice to Customer by means of a general notice through the OvertureXL interface, electronic mail to Customer’s e-mail address on record with OvertureXL, or by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service to Customer’s address on record with OvertureXL. Customer may give notice to OvertureXL by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service addressed to OvertureXL, LLC. at _______________, Attention: ___________. Notice shall be deemed to have been given upon receipt or, if earlier, two (2) business days after mailing, as applicable. All communications and notices to be made or given pursuant to these Terms shall be in the English language.

12.2 Governing Law. This Agreement and the rights and obligations of the parties to and under this Agreement shall be governed by and construed under the laws of the United States and the State of Delaware as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement Any dispute arising out of or in connection with this Agreement, including but not limited to any question regarding its existence, interpretation, validity, performance, or termination, or any dispute between the parties arising from the parties’ relationship created by this Agreement, shall be referred to and finally resolved by arbitration administered by the American Arbitration Association under its rules. The number of arbitrators shall be one (1). The parties shall endeavor to agree upon the sole arbitrator and jointly nominate the arbitrator. If the parties cannot agree upon the sole arbitrator within a time prescribed by AAA, the parties shall request the AAA to propose five (5) arbitrators and each party shall rank the proposed arbitrators. The AAA shall appoint an arbitrator from the list of five (5), based upon the parties’ rankings.

12.3 U.S. Government Customers. If Customer is a Federal Government entity, OvertureXL provides the Software, including related Support services and technology, for ultimate Federal Government end use solely in accordance with the following: government technical data rights include only those rights customarily provided to the public with a commercial item or process and Government software rights related to the Software and Support Services include only those rights customarily provided to the public, as defined in this Agreement. The technical data rights and customary commercial software license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation).

12.4 Export. Customer acknowledges and agrees that the Software shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Software offered by OvertureXL, Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Software may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Customer agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. OvertureXL and its licensors make no representation that the Software is appropriate or available for use in other locations.

12.5 General.Customer shall not assign its rights hereunder, or delegate the performance of any of its duties or obligations hereunder, whether by merger, acquisition, sale of assets, operation of law, or otherwise, without the prior written consent of OvertureXL. Any purported assignment in violation of the preceding sentence is null and void. Subject to the foregoing, this Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the parties thereto. Except as otherwise specified in this Agreement, this Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement and that is signed on behalf of both parties. No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted. If any of these terms are found invalid or unenforceable that term will be enforced to the maximum extent permitted by law and the remainder of the terms will remain in full force. The parties are independent contractors and nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral. Except for your payment obligations hereunder, neither party shall be liable to the other party or any third party for failure or delay in performing its obligations under these Terms when such failure or delay is due to any cause beyond the control of the party concerned, including, without limitation, force majeure, governmental orders or restrictions, fire, or flood, provided that upon cessation of such events such party shall thereupon promptly perform or complete the performance of its obligations hereunder.

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