TECHNICAL TRAINING PROFESSIONALS, LLC SOFTWARE LICENSE AGREEMENT

This Software License Agreement (the “Agreement”) is made and entered into by and between Technical Training Professionals, LLC, an Arizona limited liability company (“Licensor”) and the customer identified on the Quote (“Licensee”). Licensor and Licensee may be referred to herein collectively as the “Parties” or individually as a “Party.” “Quote” means the form whereby Licensee agrees to purchase all Licensed Software, Data, and any add-on services provided by Licensor to the Licensee as outlined in the Agreement and/or Quote(s), for the administration, documentation, tracking, and reporting of training programs, classroom and online events, e-learning programs, training content, etc. Service excludes third-party aplications (the “Service”) from Licensor as outlined therein, including any amendments or exhibits thereto.

In consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. GRANT AND SCOPE OF LICENSE.
   1. License Grant. Subject to and conditioned on Licensee’s payment of all amounts payable by Licensee to Licensor as specified in applicable Quote(s) and Agreement(s) (“Fees”) and compliance with all other terms and conditions of this Agreement, Licensor hereby grants Licensee a limited, non-exclusive, revocable, non-sublicensable, non-transferable license to use all Licensed Software licensed or sublicensed by Licensor to Licensee. Licensed Software includes the Learning Management System including the separate and multiple applications contained therein and the associated documentation (“Licensed Software”) solely for the number of individuals who are authorized by Licensee to use the Service, for whom licenses to the Service have been assigned, and to whom Licensor or the Licensee has supplied user identifications and/or passwords (“Users”) designated on the Quote and solely in connection with Licensee’s business (the “License”). Licensee shall have no right to use the Licensed Software in any other context outside of Licensee’s business without the prior written consent of Licensor, which may be given or withheld by Licensor in its sole and absolute discretion. Licensee’s ability to use the Licensed Software may be affected by minimum system requirements or other factors for which Licensor is not responsible.

1. 2. User-Based Access. Unless otherwise specified in the applicable Quote, (a) the Service is purchased on a User subscription basis and may be accessed by no more than the specified number of Users in accordance with the Quote; (b) additional User licenses may be added during the Term at the same pricing as that for the already existing licenses, prorated for the remainder of the Term in effect at the time the additional User licenses are added in accordance with the training modules, 3D animations, content, and materials available through the Licensed Software, associated documentation, or otherwise provided by Licensor (“Data”) purchased; (c) the added User licenses may not be reduced during the Term and shall terminate at the end of the applicable Term; (d) User licenses are for designated Users and cannot be shared with other Users; and (e) User licenses may not be reassigned to new Users replacing former Users if the previous users completed one or more training courses. If they have not completed a course, the User license may be reassigned if the previous User is deleted from the Licensee’s User database.

1. 3. Restrictions. Licensee shall not:
      1. copy, reproduce, or publish the Licensed Software or Data; 
      2. distribute copies of the Licensed Software or Data or accompanying materials to others; 
      3. modify, adapt, translate, reverse engineer, or decompile the Licensed Software or Data or create derivative works based on the Licensed Software or Data; 
      4. assign rights to, sell, or transfer the Licensed Software or Data; 
      5. allow access to Licensed Software and Data to more users than licensed under the Agreement; 
      6. create internet “links,” or “frame,” or “screen record,” or “mirror” any part of the Licensed Software or Data; or 
      7. distribute Data printed from the Licensed Software or Services provided to any person or entity outside of licensed Users whatsoever.

For the avoidance of doubt, any of the above acts will constitute a material breach by Licensee of this Agreement. Without the express prior written consent of Licensor, Licensee may not access the Service if Licensee or any of their Affiliates are direct competitors of Licensor. Licensee may not access the Services for purposes of monitoring, reviewing, or analyzing contents or functionality for competitive purposes.

2. LICENSEE OBLIGATIONS AND RESPONSIBILITIES

1. 1. Marketing Rights. Licensee hereby grants Licensor a non-exclusive, nontransferable, non-sublicensable, royalty-free, worldwide license during the period of time from the Order Date until the expiration or termination of all Services (“Term”) to use Licensee’s name and logo on Licensor’s customer list and marketing materials. The goodwill associated with such use shall inure solely to the benefit of Licensee.

2. 2. Obligations. Licensee is responsible for all activity occurring under its account for access to the Licensed Software and shall comply with all applicable local, state, national, and foreign laws related to data privacy and the transmission of technical or personal data, including personally identifiable information. Licensee shall: (a) notify Licensor immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (b) report to Licensor immediately, and use reasonable efforts to stop immediately, any copying or distribution of the Licensed Software of any of the content in the Licensed Software that is known or suspected by Licensee; and (c) not allow a user to impersonate another user or provide false identity information to gain access to or use the Licensed Software. The Licensed Software does not replace the need for Licensee to maintain regular data backups or redundant data archives. Licensor has no obligation or liability for any loss, alteration, destruction, damage, corruption, or recovery of Licensee data. Licensee agrees to pay the License Fees as set forth in Section 3 and the Quote(s).

2. 3. Delivery. Licensor shall provide Licensee with the necessary access codes and protocols to access the Licensed Software within ten (10) business days from receipt of payment by Licensee.

2. 4. Updates. During the Term, Licensor will provide Licensee with any updates that Licensor may, in its sole discretion, make generally available to Licnesee at no additional charge. All such updates provided by Licensor to Licensee are deemed Licensed Software. Licensee shall implement or install any updates provided by Licensor as soon as practicable after receipt.

2. 5. Support and Maintenance. The Fees described in Section 3.1 include support and regular product maintenance.  

2. 6. Licensee Content. If only, and as, permitted by the Quote, Licensee may upload their own content and materials to the Licensed Software (“Licensee Content”). Licensee shall be solely responsible for the accuracy, quality, integrity, and legality of Licensee Content. Licensee is restricted from and shall not upload any “Prohibited Data” to the Licensed Software, which means any: (1) special categories of data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (2) patient, medical, or other protected health information regulated by the Health Insurance Portability and Accountability Act (as amended and supplemented) (“HIPAA”); (3) social security numbers, driver’s license numbers, or other government identification numbers; (4) other information subject to regulation or protection under specific laws such as the Children’s Online Privacy Protection Act or Gramm-Leach-Bliley Act (or related rules or regulations); or (5) any data similar to the above protected under foreign or domestic laws. Notwithstanding anything contrary contained in this Agreement, Licensor has no liability for Prohibited Data processed or used in connection with the Service.

2. 7. Reservation of Rights. For the avoidance of doubt, subject to the license expressly granted to Licensee under Section 1.1 Licensor retains all right, title, and interest in and to the Licensed Property delivered or otherwise made available to Licensee hereunder, and Licensor reserves all rights and Licensee is granted no other right, title, interest, or license to the Licensed Property or any of Licensor’s Intellectual Property Rights.

3. PAYMENT AND AUDIT RIGHTS.

1. 1. License Fees. Licensee shall promptly pay all Fees specified in all Quote(s). Except as otherwise specified in an Quote, (a) Fees are quoted and payable in USD, (b) payment obligations are non-cancellable and Fees paid are non-refundable, and (c) beginning on the first year anniversary after the date on which the Service commences, as indicated on an applicable Quote(s) and on each succeeding year during the Term, Fees may be increased up to a maximum of five percent (5%) over the previous year’s Fees, unless otherwise prohibited by law.

3. 2. Credit Card Purchases. If paying by credit card, Licensee shall provide Licensor with valid and updated credit card information. Licensee authorizes Licensor to charge such credit card for all Fees listed in the Quote for the Term. If the Services automatically renew, Licensee authorizes Licensor to automatically charge the credit card Licensor has on file for Licensee upon, or immediately prior to, expiration of the then-current Term, for Licensee’s continued use of the Services for the following Term.

3. 3. Invoicing. Licensor shall provide invoice in accordance with the applicable Quote(s). Invoices shall be sent to the “bill to” contact set forth on the applicable Quote or as listed in the Licensed Software, if applicable. Invoiced Fees are due as set forth in the applicable Quote(s). Licensee is responsible for maintaining updated, complete, and accurate billing and contact information.

3. 4. Payment Terms. Payment shall be made in accordance with the payment terms listed on the Quote(s). Licensee shall pay all applicable Fees for the Services before the Services are rendered. Unless otherwise set forth in the Quote, recurring amounts payable by Licensee to Licensor for the provision of the Service as specified in applicable Quote(s) shall be billed annually and in advance.

3. 5. Overdue Charges. If complete payment is not received by the due date, and unless otherwise provided in the Quote(s), then at Licensor’s discretion (a) such charges may accrue late interest at the rate of 2.5% 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, and/or (b) future subscription renewals and Quotes may be conditioned on payment terms shorter than those specified in this Agreement.

3. 6. Suspension of Service. If any amount owing under this Agreement for the Service or other related services is thirty (30) days or more overdue, Licensor may, without limiting its other rights and remedies, suspend Service and other related services until such amounts are paid in full.

3. 7. Payment Disputes. Licensor shall not exercise its rights under Section 3.5 (Overdue Charges) or 3.6 (Suspension of Service) if the applicable charges are under reasonable and good-faith dispute and both Parties are cooperating diligently to resolve the dispute.

3. 8. Taxes. The Fees do not include any sales or other applicable taxes, levies, duties, or similar assessments assessable by any jurisdiction. Each Party is responsible for their own tax obligations. If Licensor has the legal obligation to pay or collect taxes for which Licensee is responsible under this Section 3.8 (Taxes), the appropriate amount will be invoiced to and paid by Licensee, unless Licensor is provided with a valid tax exemption certificate authorized by the appropriate taxing authority.

3. 9. Records and Audit Rights. Licensee will maintain complete and accurate books of account and records (which shall include, without limitation, records identifying the number of users of the Services and the dates of such use) throughout the Term and for at least one (1) year after the expiration or termination of this Agreement. Licensor and its representatives will have the right, on reasonable notice to Licensee, to inspect and audit such books of account and records of the Licensee for a period of up to one year after the due date for such payment. If the audit shows any deficiency in the calculation of amounts payable or paid by Licensee, then Licensee will promptly (but not more than thirty (30) days after the identification of the deficiency) make any corrective payments to Licensor. If the deficiency is equal to or greater than three percent (3.0%) of the amounts payable or paid by Licensee, then Licensee shall pay the costs of the audit, in addition to any corrective payment that Licensee may owe to Licensor.

4. INTELLECTUAL PROPERTY.

1. 1. Definition of Intellectual Property Rights. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

4. 2. Ownership of Licensed Software. This Agreement is not a sale and does not convey any rights of ownership in or related to the Licensed Software to Licensee. Licensee acknowledges and agrees that:
      1. the Licensed Software is licensed, not sold, to Licensee by Licensor and Licensee does not have under or in connection with this Agreement any ownership interest in the Licensed Software, or in any related Intellectual Property Rights;
      2. Licensor is and shall continue to be the sole and exclusive owner of all right, title, and interest in and to the Licensed Software, including all Intellectual Property Rights relating thereto, subject only to the limited license granted to Licensee under this Agreement; and
      3. Licensee hereby unconditionally and irrevocably assigns to Licensor, its entire right, title, and interest in and to any Intellectual Property Rights that Licensee may now or hereafter have in or relating to the Licensed Software (including any rights in derivative works or patent improvements relating to either of them), whether held or acquired by operation of law, contract, assignment or otherwise.

4. 3. Feedback and Improvements. As between the Parties, Licensor shall solely own all right, title, and interest in, to, and under any feedback, suggestions, enhancement requests, recommendations, improvements, modifications, or derivatives, including all unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, know-how and other trade secret rights, and all other Intellectual Property Rights, derivatives or improvements thereof (collectively, “Improvements”) made by Licensee’s employees or independent contractors. Licensee hereby transfers and assigns to Licensor, without additional consideration, all of its right, title, and interest in, to, and under any Improvement made by any employee or independent contractor of Licensee, whether solely or jointly with any employee or independent contractor of Licensor or any third party, and Licensor is free to use, without any attribution or compensation to Licensee, any ideas, know-how, concepts, techniques, and all applicable Intellectual Property Rights relating to the feedback for any purpose whatsoever. Licensee shall fully cooperate with Licensor and take all further actions and execute, acknowledge, and deliver all assignments and other documents as Licensor may reasonably request, to evidence and protect Licensor’s Intellectual Property Rights and other proprietary rights in and to all Improvements.

4. 4. No Contest. Licensee shall not contest, oppose, or challenge Licensor’s ownership of the Licensed Software. Licensee shall not at any time do or cause to be done any act or thing that shall in any way impair Licensor’s ownership of or rights in and to the Licensed Software. Licensee shall, on request, give Licensor or its authorized representatives any information as to the use of the Licensed Software pursuant to this Agreement and shall render any assistance reasonably required by Licensor in maintaining any registration of the Licensed Software.

4. 5. Filings. Licensee has no right to, and shall not, (i) file or prosecute any patent application or seek or obtain any patent for or including any Licensed Software; or (ii) subject to the license granted to Licensee under Section 1.1, claim any ownership or other right, title, or interest in, to, or under, or challenge Licensor’s ownership or other right, title, or interest in, to, or under, any Licensed Software.

4. 6. Licensee Cooperation and Notice of Infringement.  Licensee shall, during the Term:
      1. take all reasonable measures to safeguard the Licensed Software (including all copies thereof) from infringement, misappropriation, theft, misuse, or unauthorized access;
      2. at Licensor’s expense, take all such steps as Licensor may reasonably require to assist Licensor in maintaining the validity, enforceability and Licensor’s ownership of the Intellectual Property Rights in the Licensed Software;
      3. promptly notify Licensor in writing if Licensee becomes aware of: (i) any actual or suspected infringement, misappropriation or other violation of Licensor’s Intellectual Property Rights in or relating to the Licensed Software; or (ii) any claim that the Licensed Software, including any production, use, marketing, sale or other disposition of the Licensed Software, in whole or in part, infringes, misappropriates or otherwise violates the Intellectual Property Rights or other rights of any person; and
      4. fully cooperate with and assist Licensor in all reasonable ways in the conduct of any lawsuit or action by Licensor to prevent or abate any actual or threatened infringement, misappropriation or violation of Licensor’s rights in, and to attempt to resolve any lawsuit or action relating to, the Licensed Software, including having Licensee’s employees testify when requested and making available for discovery or trial relevant records, papers, information, samples, specimens and the like.

4. 7. Ownership of Licensee Content. Licensee exclusively owns all rights, title, and interest in and to all Licensee Content. Licensee grants Licensor a non-exclusive, royalty-free, non-transferrable, irrevocable license for the limited purposes of performing its obligations under this Agreement to use Licensee Content during the Term solely for internal reference, research, and analysis for the purpose of providing technical support, which may include benchmarking system usage or performance of the Services, solely for the benefit of the Licensee.

4. 8. No Implied Rights. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to Licensee or any third party any Intellectual Property Rights or other right, title, or interest in or to any of the Licensed Software.

5. CONFIDENTIALITY AND PROTECTION OF LICENSED SOFTWARE.

1. 1. Confidential Information. From time to time, Licensor may disclose or make available to Licensee information about its business affairs, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, including the terms of the Agreement and business operations and strategies, marketing, creative elements, artwork, visual representations, research material and data, specifications, processes, and technological developments, whether orally or in written, electronic, or other form or media, all whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). The Licensed Software and any related Intellectual Property Rights are deemed the Confidential Information of Licensor. Confidential Information does not include information that, at the time of disclosure: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 5 by Licensee; (b) is or becomes available to Licensee on a non-confidential basis from a third-party source, provided that such third-party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of Licensee before being disclosed by or on behalf of Licensor; or (d) was or is independently developed by Licensee without reference to or use, in whole or in part, of any of Licensor’s Confidential Information.

5. 2. Confidentiality Obligations. Licensee shall:
      1. protect and safeguard the confidentiality of Licensor’s Confidential Information with at least the same degree of care as Licensee would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;
      2. not use Licensor’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement;
      3. promptly notify Licensor of any unauthorized use or disclosure of Confidential Information and use its best efforts to cooperate with Licensor to prevent further unauthorized use or disclosure; and
      4. not disclose any such Confidential Information to any person or entity, except: (i) to Licensee’s officers, employees, agents, consultants, and legal advisors who need to know the Confidential Information to assist Licensee, or act on its behalf, to exercise its rights or perform its obligations under the Agreement, or (ii) pursuant to applicable federal, state, or local law or regulation, or a valid order issued by a court or governmental agency of competent jurisdiction, provided that Licensee shall first provide Licensor with: (A) prompt written notice of such requirement so that Licensor may seek, at its sole cost and expense, a protective order or other remedy; and (B) reasonable assistance, at Licensor’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure.

6. REPRESENTATIONS AND WARRANTIES.

1. 1. Representations and Warranties of the Parties. Each Party hereby represents and warrants to the other Party the following as of the date of full execution of an applicable Quote, and the date on which this Agreement becomes effective (“Order Date”):
      1. Neither the execution, delivery, and performance of this Agreement, nor the licenses and other rights granted hereunder, will conflict with or violate any other license, instrument, contract, agreement, or other commitment or arrangement to which such Party is bound, and there are no claims, demands, or proceedings that have been instituted, or are pending or threatened, by any person against such Party or, to such Party’s knowledge, any customer of such Party, alleging any matter contrary to the foregoing.
      2. Each Party will comply with all applicable U.S. and foreign laws in its performance hereunder.
      3. The undersigned person is authorized to enter into this Agreement on behalf of such Party.
      4. All corporate or limited liability company action(s) taken by such Party in connection with this Agreement and the other agreements contemplated herein have been duly authorized.

6. 2. Limited Warranty. Licensor represents and warrants to Licensee that the Licensed Software will perform in material compliance with any documentation supplied with the Licensed Software and any specifications and requirements set forth in this Agreement. Licensee’s exclusive remedy for breach of the foregoing limited warranty shall be for Licensor to update and correct such Licensed Software not in compliance with such specifications and requirements, at no cost to Licensee, within thirty (30) days of written notice of such breach from Licensee. The foregoing limited warranty shall not apply to performance issues or defects in the Licensed Software that result from: (a) factors outside Licensor’s reasonable control; (b) any actions or inactions of Licensee or its users, including but not limited to any alterations or modifications of the Licensed Software by anyone other than Licensor; or (c) Licensee’s equipment or any third party equipment not within the control of Licensor, including but not limited to any failure of the Licensed Software resulting from Licensee’s use of systems not compatible with the Licensed Software.Except as set forth in this Section 6, THE LICENSED SOFTWARE IS PROVIDED “AS IS” AND LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE LICENSED SOFTWARE OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY LICENSED SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN LICENSEE AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

6. 3. Disclaimer of Second-Party Content. Without written permission from Licensor, no data or content developed or collected by Licensee (“Second-Party Content”) will be placed on the Learning Management System for the Licensee. If permitted, Second-Party Content providers are responsible for ensuring their content is accurate and compliant with national and international laws. LICENSOR IS NOT RESPONSIBLE OR LIABLE FOR ANY SECOND PARTY CONTENT. THERE IS NO WARRANTY OF MERCHANTABILITY, NO WARRANTY OF FITNESS FOR A PARTICULAR USE, AND NO WARRANTY OF NON-INFRINGEMENT FOR ANY SECOND-PARTY CONTENT. THERE IS NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, REGARDING SECOND PARTY CONTENT.

7. INDEMNIFICATION.

1. 1. Indemnification by Licensor. Licensor shall indemnify, defend, and hold harmless Licensee and Licensee’s officers, directors, managers, employees, agents, representatives, affiliates, and their successors and assigns for, from, and against all costs and expenses (including reasonable attorneys’ fees), damages, and liabilities to the extent arising out of or related to any claim, demand, or action reasonably alleging that the Licensed Software infringes or misappropriates the Intellectual Property Rights of any third party. This Section 7.1 does not apply to the extent that any alleged infringement arises from:
      1. Third-party materials;
      2. combination, operation, or use of the Licensed Software in or with, any technology (including any Licensed Software, hardware, firmware, system, or network) or service not provided by Licensor or specified for Licensee’s use in this Agreement, unless otherwise expressly permitted by Licensor in writing;
      3. modification of the Licensed Software other than: (i) by Licensor in connection with this Agreement; or (ii) with Licensor’s express written authorization and in strict accordance with Licensor’s written directions and specifications;
      4. use of any version of the Licensed Software other than the most current version or failure to timely implement any modification, update, or replacement of the Licensed Software made available to Licensee by Licensor;
      5. use of the Licensed Software after Licensor’s notice to Licensee of such activity’s alleged or actual infringement, misappropriation, or other violation of a third-party’s rights;
      6. negligence, abuse, misapplication, or misuse of the Licensed Software by or on behalf of Licensee, Licensee’s representatives, or a third party;
      7. use of the Licensed Software by or on behalf of Licensee that is outside the purpose, scope, or manner of use authorized by this Agreement or in any manner contrary to Licensor’s instructions;
      8. events or circumstances outside of Licensor’s commercially reasonable control (including any third-party hardware, Licensed Software, or system bugs, defects, or malfunctions); or
      9. Third-party claims or losses for which Licensee is obligated to indemnify Licensor pursuant to Section 7.2.Upon the occurrence of any claim for which indemnity is or may be due under this Section 7.1 or in the event that Licensor believes that such a claim is likely, Licensor may, at its option and at its sole cost and expense (i) appropriately modify the Licensed Software so that it becomes non-infringing, or (ii) obtain a license to the applicable third-party Intellectual Property Rights.

7. 2. Indemnification by Licensee. Licensee shall defend, indemnify, and hold Licensor and Licensor’s officers, directors, managers, employees, agents, representatives, affiliates, and their successors and assigns, harmless from and against all costs and expenses (including reasonable attorneys’ fees), damages, and liabilities:
      1. that any Intellectual Property Rights or other right of any person, or any law, is or will be infringed, misappropriated, or otherwise violated by any:
         1. use or combination of the Licensed Software by or on behalf of Licensee or any of its representatives with any hardware, Licensed Software, system, network, service, or other matter whatsoever that is neither provided by Licensor nor authorized by Licensor in this Agreement or otherwise in writing; and
         2. information, materials, or technology directly or indirectly provided by Licensee or directed by Licensee to be installed, combined, integrated, or used with, as part of, or in connection with the Licensed Software;
      2. relating to facts that, if true, would constitute a breach by Licensee of any representation, warranty, covenant, or obligation under this Agreement;
      3. relating to negligence, abuse, misapplication, misuse or more culpable act or omission (including recklessness or willful misconduct) by or on behalf of Licensee or any of its representatives with respect to the Licensed Software or otherwise in connection with this Agreement; or
      4. relating to use of the Licensed Software by or on behalf of Licensee or any of its representatives that is outside the purpose, scope or manner of use authorized by this Agreement, or in any manner contrary to Licensor’s instructions.

7. 3. Indemnification Procedure. Each Party shall promptly notify the other Party in writing of any third-party claim for which such Party believes it is entitled to be indemnified pursuant to Section 7.1 or Section 7.2. The Party seeking indemnification (the “Indemnitee”) shall cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and investigation of such claim and shall employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any third-party claim without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such third-party claim, the Indemnitee shall have the right, but no obligation, to defend against such claim, including settling such claim after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee’s failure to perform any obligations under this Section 7.3 will not relieve the Indemnitor of its obligations under this Section 7, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.

8. LIMITATIONS OF LIABILITY. IN NO EVENT SHALL LICENSOR OR ANY OF ITS AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF GOODWILL, LOST BUSINESS AND LOST PROFITS, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER THEORY, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE FOR PUNITIVE DAMAGES. THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. LICENSOR’S MAXIMUM AGGREGATE LIABILITY (WHETHER IN CONTRACT OR IN TORT OR UNDER ANY OTHER FORM OF LIABILITY) FOR DAMAGES OR LOSS, HOWSOEVER ARISING OR CAUSED, SHALL IN NO EVENT EXCEED THE AMOUNT ACTUALLY PAID TO LICENSOR DURING THE TERM OF THIS AGREEMENT. THE ALLOCATIONS OF LIABILITY IN THIS SECTION 8 REPRESENT THE AGREED AND BARGAINED-FOR UNDERSTANDING OF THE PARTIES. THE LIMITED REMEDIES SET FORTH IN THIS AGREEMENT SHALL APPLY NOTWITHSTANDING THE FAILURE OF THEIR ESSENTIAL PURPOSE.

9. TERM AND TERMINATION. 

1. 1. Term. The Term shall automatically renew for successive periods equal to the original Term of the Quote(s) (each a “Renewal Term”), unless either Party provides written notice of its intention not to renew at least sixty (60) days prior to the end of the then-current Term.

9. 2. Termination for Convenience. Either Party may terminate this Agreement at the end of the then-current Term by providing the other Party with written notice of termination at least sixty (60) days prior to the expiration of the then-current Term. If no such notice is provided, the Agreement shall automatically renew in accordance with Section 9.1. 

9. 3. Termination for Material Breach. In addition to any rights of termination set forth in this Agreement, either Party may terminate this Agreement immediately upon written notice in the event that the other Party or its affiliate has materially breached this Agreement and (i) such breach is incapable of cure or (ii) the breaching Party has failed to cure such material breach within thirty (30) days after receiving written notice thereof (or to commence diligent efforts to cure such breach that are reasonably acceptable to the terminating Party). For the avoidance of doubt, any use by Licensee of the Licensed Software which causes a direct or indirect threat to Licensor’s network function or integrity will constitute a material breach by Licensee that is incapable of cure.

9. 4. Termination Upon Bankruptcy, Insolvency, Etc. Licensor may terminate this Agreement immediately upon written notice if Licensee: (a) is dissolved or liquidated or takes any corporate action for such purpose; (b) becomes insolvent or is generally unable to pay its debts as they become due; (c) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency law; (d) makes or seeks to make a general assignment for the benefit of its creditors; or (e) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.

9. 5. Effect of Termination. Upon termination of this Agreement for any reason all rights granted under this Agreement shall cease. Licensee shall immediately cease all use of Licensed Software and Data and delete, destroy or return to Licensor all materials and confidential information in Licensee’s possession. Upon termination of this Agreement for any reason:
      1. all rights and licenses granted under this Agreement shall terminate and Licensee shall immediately cease all use of the Licensed Property and shall destroy or return to Licensor all materials bearing the Licensed Property;
      2. Licensee shall promptly pay to Licensor all amounts due and remaining payable hereunder (if any); and
      3. Licensee shall immediately discontinue all use of Licensor’s Confidential Information, and, upon request by Licensor: (i) Licensee shall delete Licensor’s Confidential Information from its computer storage or any other media, including, but not limited to, online and off-line libraries; and (ii) Licensee shall return to Licensor or, at Licensor’s option, destroy, all copies of Licensor’s Confidential Information then in its possession.

9. 6. Deletion of Licensee Content. At Licensee’s written request upon termination of the provision of the Service, or upon expiration of this Agreement, Licensor shall delete any existing copies of Licensee Content, unless required by law to refrain from such deletion. Provided, however, that Licensor may retain copies of Licensee Content that are stored on Licensor’s backup or recovery systems for thirty (30) days after expiration or termination of the Agreement until the ordinary course of deletion thereof.

9. 7. Any rights or obligations of the Parties in this Agreement which, by their nature, should survive termination or expiration of this Agreement shall survive any such termination or expiration, including the rights and obligations set forth in Sections 1, 2, 3, 4, 5, 6, 7, and 8.

10. GENERAL PROVISIONS.

1. 1. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

10. 2. Non-Exclusive and No Assignment. The rights herein granted to Licensee are non-exclusive, and Licensor may grant additional licenses for any payment acceptable to Licensor in Licensor’s sole and absolute discretion. Licensee shall not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Licensor, which Licensor may grant or withhold in its sole and absolute discretion. Any purported assignment, transfer, or delegation in violation of this Section 10.2 is null and void. No assignment, transfer, or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties hereto and their respective permitted successors and assigns.

10. 3. Export Regulation. The Licensed Software may be subject to US export control laws, including the US Export Control Reform Act and its associated regulations. Licensee will not directly or indirectly, export, re-export, or release the Licensed Software to, or make the Licensed Software accessible from, any country, jurisdiction or person to which export, re-export, or release is prohibited by applicable law. Licensee will comply with all applicable laws and complete all required undertakings (including obtaining any necessary export license or other governmental approval) prior to exporting, re-exporting, releasing, or otherwise making the Licensed Software available outside the US.

10. 4. Waiver. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

10. 5. Equitable Relief. Licensee acknowledges and agrees that a breach or threatened breach by Licensee of any of its obligations under Sections 1, 2, 3, 4, 5, and 6 of this Agreement would cause Licensor irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Licensor will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available to Licensor at law, in equity, or otherwise.

10. 6. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. If any provision of this Agreement is invalid or unenforceable in any jurisdiction for any reason, such provision shall be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability.

10. 7. Force Majeure. In no event shall either Party be liable to the other Party, or be deemed to have defaulted or breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments or breach of confidentiality requirements), when and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control and without negligence of such Party. Such circumstances, events, occurrences or causes will include, without limitation: (i)  acts of God; (ii) flood, fire, earthquake, or explosion; (iii) war, terrorism, invasion, riot or other civil unrest; (iv) government order, law, or actions; and (v) embargoes or blockades in effect on or after the date of this Agreement.

10. 8. No Third-Party Beneficiaries. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties and their successors and permitted assigns. Except as expressly provided in this Agreement, nothing herein, whether express or implied, is intended to or will confer on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

10. 9. Notices. All notices, demands, and other communications to be given or delivered under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to have been given (a) when personally delivered or sent by electronic mail (provided that there has been no “bounceback” or other evidence the transmission was not received by the intended recipient) or telecopy (with hard copy to follow); (b) one Business Day after being sent by reputable overnight express courier (charges prepaid), provided that such notice shall be delivered simultaneously by electronic mail (provided that there has been no “bounceback” or other evidence the transmission was not received by the intended recipient); or (c) five (5) Business Days following mailing by certified or registered mail, postage prepaid and return receipt requested, provided that such notice shall be delivered simultaneously by electronic mail.  Unless another address is specified in writing, notices, demands, and communications to the parties shall be sent to the addresses indicated on the signature page to this Agreement.

10. 10. Amendment and Modification. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.

10. 11. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

10. 12. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (a) first, this Agreement, excluding its Exhibits; (b) second, the Exhibits to this Agreement as of the Effective Date; and (c) third, any other documents incorporated herein by reference. For the avoidance of doubt, in the event Licensee issues an Quote for its request of the Licensed Software and Data, the terms and conditions therewith are hereby rejected by Licensor, this Agreement will govern and take precedence over such Quote. 

10. 13. Governing Law, Jurisdiction and Venue. This Agreement is governed by and construed in accordance with the internal laws of the State of Arizona without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Arizona. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal or state courts located in Maricopa County, Arizona, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such Party’s address set forth herein will be effective service of process for any suit, action, or other proceeding brought in any such court.

10. 14. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.

10. 15. Privacy. Please refer to Licensor’s Privacy Policy at tectrapro.com/privacy-policy for information on how Licensor collects, uses, and discloses personally identifiable information from its users.