Terms of Use Agreement

TERMS OF USE AGREEMENT

This Terms of Use Agreement (the "Agreement") is entered into as of Effective Date: between Provider Name: , Provider Entity Type: Individual Corporation LLC Other, with principal address: , and User Name: , User Entity Type: Individual Corporation LLC Other, with principal address: .

RECITALS

WHEREAS, Provider operates and maintains the software, services, documentation and related materials described herein (collectively, the "Services"); and

WHEREAS, User desires to access and use the Services subject to the terms and conditions set forth in this Agreement; and

WHEREAS, Provider is willing to permit User to access the Services on the terms and conditions contained in this Agreement.

NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows.

1. DEFINITIONS

1.1 "Confidential Information" means nonpublic information disclosed by a disclosing party to the receiving party that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including but not limited to business plans, customer lists, pricing, trade secrets, and technical information.

1.2 "Documentation" means Provider's user guides, technical manuals and other written materials describing the features, functions and use of the Services.

2. GRANT OF RIGHTS

2.1 Subject to the terms and conditions of this Agreement, Provider hereby grants User a non-exclusive, non-transferable, revocable right to access and use the Services solely for User's internal business purposes during the Term.

2.2 Provider retains all right, title and interest in and to the Services, Documentation and Provider's Confidential Information not expressly granted to User under this Agreement.

3. RESTRICTIONS

User shall not (a) copy, modify or create derivative works of the Services or Documentation except as expressly permitted in writing by Provider; (b) decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Services; (c) rent, lease, sublicense, distribute, or transfer rights to the Services; or (d) use the Services to develop a competing product or service.

4. USER OBLIGATIONS

4.1 User shall: (a) use commercially reasonable efforts to prevent unauthorized access to or use of the Services; (b) maintain the confidentiality of access credentials issued to User; and (c) comply with applicable laws and with the Documentation.

4.2 User shall be solely responsible for all data uploaded or transmitted by User in connection with the Services ("User Data"). Provider shall have no obligation to back up User Data except as expressly stated in writing.

5. INTELLECTUAL PROPERTY

Provider and its licensors retain all right, title and interest in and to the Services, Documentation and any derivatives, enhancements or improvements thereto. User retains all right, title and interest in and to User Data. User hereby grants Provider a worldwide, non-exclusive, royalty-free license to use and reproduce User Data as necessary to provide the Services and to comply with law.

6. CONFIDENTIALITY

Each party shall use Confidential Information of the other party solely to perform its obligations under this Agreement and shall not disclose such Confidential Information to any third party except to employees, contractors and professional advisors who have a need to know and who are bound by confidentiality obligations no less protective than those in this Agreement. Confidential Information shall not include information that is or becomes generally available to the public through no fault of the receiving party.

7. TERM AND TERMINATION

7.1 This Agreement commences on the Effective Date and continues until terminated in accordance with this Section. Either party may terminate this Agreement for material breach by the other party if the breaching party fails to cure such breach within thirty (30) days after receipt of written notice specifying the breach.

7.2 Upon termination, User shall cease all use of the Services and, at Provider's option, Provider may delete User Data after a reasonable retention period. Termination shall not relieve either party of obligations incurred prior to termination or of obligations that by their nature survive termination.

8. WARRANTY DISCLAIMER

EXCEPT AS EXPRESSLY PROVIDED IN A WRITTEN SCHEDULE TO THIS AGREEMENT, THE SERVICES ARE PROVIDED "AS IS" AND PROVIDER DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

9. LIMITATION OF LIABILITY

IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOSS OF PROFITS OR DATA, ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. PROVIDER'S AGGREGATE LIABILITY FOR DIRECT DAMAGES ARISING FROM OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY USER TO PROVIDER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO LIABILITY.

10. INDEMNIFICATION

User shall defend, indemnify and hold harmless Provider and its officers, directors, employees and agents from and against any third-party claims, liabilities, damages and expenses (including reasonable attorneys' fees) arising out of or relating to User's use of the Services, User Data, or User's breach of this Agreement.

11. NOTICES

All notices required or permitted under this Agreement shall be in writing and shall be delivered to the addresses set forth below or to such other address designated by a party in a written notice to the other party.

12. AMENDMENT AND WAIVER

No amendment, modification or waiver of any provision of this Agreement shall be effective unless in writing and signed by authorized representatives of both parties. No failure or delay by either party in exercising any right shall operate as a waiver of that right.

13. SEVERABILITY; ENTIRE AGREEMENT

If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable, and the remaining provisions shall remain in full force and effect. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, proposals and communications, whether oral or written.

14. GOVERNING LAW

This Agreement shall be governed by and construed in accordance with the laws of the State of , without regard to its conflict of laws provisions.

15. COUNTERPARTS

This Agreement may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. Signatures provided by electronic means shall be effective as originals.

ADDITIONAL PROVISIONS

Each party represents and warrants that it has full right, power and authority to enter into this Agreement and to perform its obligations hereunder. Neither party shall be liable for any failure or delay in performance due to causes beyond its reasonable control, provided that the affected party gives prompt written notice and uses reasonable efforts to resume performance.

ACKNOWLEDGMENT

By signing below, each party acknowledges that it has read and understands this Agreement, that it agrees to be bound by its terms, and that the person signing on its behalf is authorized to do so.

Sign Now