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Master Subscription Agreement


THIS LICENSE AGREEMENT (this “Agreement”) is made effective as of date of signature (the “Effective Date”) by and between 3KEYMEDIA, LLC, a Nevada limited liability company located at 701 South Carson Street, Carson City NV 89703 (“Licensor”), and the undersigned customer (“Customer”, “you” or “your”). Licensor and Licensee are sometimes referred to herein individually as a “party” and collectively as the “parties.” 


WHEREAS, Licensor has developed that certain software package more particularly described in Exhibit A hereto (collectively, the “Software”); 

WHEREAS, Customer wishes to use Licensor’s Software in connection with the operation of Customer’s business (the “Business”); 

WHEREAS, contemporaneous to the Agreement, Customer shall execute a certain Merchant Processing Agreement; and 

WHEREAS, the parties desire to establish Customer’s right to use the Software for the Business, under the terms and conditions set forth in this Agreement. 

NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants and agreements contained herein, the parties hereto agree as follows: 



“API” means the application programming interfaces with respect to the Software that, within the customary meaning in the software industry, refers to specifications of functions, methods, procedures and protocols according to which a reasonably skilled software programmer may access and use the Software or Customer Data. 

“Applicable Laws” mean all foreign, domestic, federal, state, local, and regional laws, rules, regulations, ordinances and orders, guidelines, and industry self-regulatory principles. 

“Authorized Users” means your employees, contractors and agents that you authorize and for whom you have purchased a subscription (each with a user login and password) to use the Software on your behalf. 

“Cancellation Fee” means a $5,000 fee assessed to the Licensor upon Default of this Agreement. 

“Confidential Information” means any non-public information that is marked or identified as confidential (or under the circumstances of the disclosure or the nature of the information, it would reasonably be understood to be confidential or proprietary) at the time of disclosure. 

“Customer Data” means data, content or information (i) inputted by or on behalf of Authorized Users into the Software, or (ii) created, collected, generated, processed, or stored in connection with use of the Software by Authorized Users (including, without limitation, purchase history of consumers and personally identifiable information of consumers such as name, address, email and driver identification number). Customer Data excludes Software Performance Data (as defined below). 

“Equipment” means any and all internet access, computer hardware, computer networking and other services needed to access and use the Software. 

“Feedback” means feedback or suggestions about the features, functions, or operation of the Software. 

“Order” means the Order Specifications attached hereto as Appendix B, which is incorporated herein by reference. 

“Renewal Order” means a notice regarding the renewal of your subscription to the Software. 

“Software” means that certain software package more particularly described in Exhibit A hereto. 

“Uptime” means the time during which a product is in operation. 

“Subscription Fees” means the subscription fees listed in your Order for the use of the Software. 

“Subscription Term” means the subscription term listed in the Order for the use of the Software. 

“you”, “your”, and “Customer” mean the customer identified in the Order (and includes any of your affiliates and subsidiaries that are owned or controlled by you, or are under common control with you). 


2.1. Software Subscription. Subject to the payment of the Subscription Fees, the terms and conditions of this Agreement, you may access and use the Software in the configuration described in the Order solely for your own internal business purposes during the Subscription Term and in accordance with any other terms and conditions provided in the Order. You must purchase or obtain a separate subscription for the Software for each retail or physical location at which you desire to use the Software. Licensor may, in its sole discretion, provide technical support and updates for the Software during the Subscription Term (at no additional charge). 

2.2. Subscription Renewal. The term of each subscription shall be as specified in the applicable Order. Except as otherwise specified in an Order, subscriptions will automatically renew for additional periods equal to the expiring Subscription Term, unless either party gives the other notice of non-renewal at least 60 days before the end of the relevant Subscription Term. If in any such event that customer documentation explicitly specifies that an Order is not subject to automatic renewal, the agreement shall continue on a month-to-month basis from the last date of the Subscription Term. Irrespective of Subscription Term, all Customer obligations of this Agreement shall remain in effect so as long as the Customer is still using the Software. 

2.3. Professional Services. If the applicable Order provides for any professional services to be performed by Licensor in connection with the configuration and implementation of the Software, such professional services shall be delivered in accordance with that Order or, if applicable, will be described in a separate statement of work. This Agreement will apply to the professional services provided. Any other professional services will be billed according to the schedule set forth in the Order. 

2.4. Hardware sales are final and in the event of a termination of services, an invoice will be issued for the Market Price of the Hardware provided.

2.5. A minimum subscription term of 12 months applies after the first transaction processed with the system.


3.1. Software Access. You are responsible for obtaining, maintaining, and supporting the Equipment and other services necessary to access and to use the Software, and ensuring that the Equipment is 

compatible with the Software and complies with all configurations and specifications provided to you by Licensor, as may be updated from time to time. You are responsible for compliance with all applicable third-party terms of service and privacy policies for the Equipment. 

3.2. Authorized Users. You determine the access controls for your Authorized Users. You are responsible for the activity occurring under your account by Authorized Users (and their compliance with this Agreement). You agree to promptly notify Licensor of any suspected or unauthorized use of your account that you become aware of. 

3.3. Restrictions. You will not (and will not knowingly allow any third party to): (a) reverse assemble, reverse compile, reverse engineer, or otherwise translate the Software or otherwise attempt to reconstruct or derive any source code (or underlying ideas, algorithms, structure or organization) from the Software that is not provided to you by Licensor, (b) permit the use of the Software by a third party except as expressly set forth in this Agreement, or use the Software in any manner to provide service bureau, time-sharing or other computer services to any third party, (c) use any Confidential Information of Licensor related to the Software of Licensor’s business to intentionally assist in the development of a product that is competitive with the Software; (d) remove or obscure any identification, copyright or other proprietary or restrictive notices or legends contained or included in the Software or documentation provided by Licensor, (e) modify, incorporate into or with other software, or create a derivative work of the Software or any portion thereof, except as expressly authorized by Licensor; (f) use the Software in any manner that interferes with or disrupts the integrity or performance of the Software or the components thereof, (g) gain (or attempt to gain) unauthorized access to any other accounts, computer systems, or networks connected to any server or systems through hacking, password mining or other means; (h) access systems, data or information not intended by Licensor to be made accessible to you or obtain any materials or information through any means not intentionally made available by Licensor; or (i) use the Software in violation of this Agreement, Applicable Law, or any written instructions provided by Licensor, as may be updated from time to time. 

3.4. Third Party Application Providers. The Software may from time-to-time be enhanced by Licensor, in its sole discretion, to enable Customers to interface, and share their Customer Data (via an API), with third parties that provide separate data analysis or other software-driven services (each, a “Third Party App Provider”). You acknowledge and agree that: (a) Licensor may, at any time in its sole discretion, elect to enable or disable such interface with Third Party App Providers and you are not relying on delivery of future interfaces, or functionality, with Third Party App Providers in obtaining subscriptions for the Software ; (b) any such use of a Third Party App Provider will be subject to the API fees set forth in your Order (“API Fee”), and (c) any use of a Third Party App Provider’s products or services is solely at your decision, and therefore, is subject to any separate agreement between you and such Third Party App Provider. Licensor will not be liable in any way for the acts or omissions of any Third Party App Provider (including, without limitation, any misuse of your Customer Data by such Third Party App Providers), and as between Licensor and you, you bear the entire risk of interfacing, and sharing Customer Data, with and using the products and services of any Third Party App Provider. 


4.1. Technical Support. Licensor will provide you with 99.9% uptime of its products, technical support through its online knowledge base, electronic written messages, and/or telephone support. Licensor support hours, response times to different technical support requests and general support procedures may vary, as disclosed by Licensor from time to time. Licensor will not be responsible for providing technical support for problems in the operation or performance of the Software if the problem relates to errors in your Equipment, data, computer hardware, networking or internet access, databases, access to other software or databases, or from any unauthorized use, modification, or combination of the Software (based 

on the documentation that is provided with the Software). Technical support is not intended as a substitute for training and Licensor support personnel may refer you to the online training materials and documentation included in the Software, or suggest you contract for training, if your request is training related. 

4.2. Software Updates. Licensor may make updates (error corrections, bug fixes, and enhancements) to the Software on an ongoing basis in its sole discretion. Except in the case of urgent updates, Licensor schedules maintenance during appropriate, non-peak usage hours (that minimizes the impact on all users, worldwide) and will make commercially reasonable efforts to provide advance notice of any planned unavailability. 

4.3. Your IT Infrastructure Responsibilities. You will be responsible for maintaining minimum service levels of the Equipment, your information technology infrastructure, and to provide information technology support to help troubleshoot any power, printer, wiring, network or internet issues throughout the Subscription Term. Licensor reserves the right to modify these requirements from time to time as technologies and the Software are enhanced and evolve to the extent the modifications do not conflict or interfere with the obligations set forth herein. 


5.1. Payment Terms. Unless otherwise set forth in this Section 5 or the applicable Order, Subscription Fees and any applicable implementation fee or extra service fees are due and payable in advance within 30 days from the invoice date and API Fees are due and payable within 10 days from the invoice date (it being understood that Licensor will send an invoice at the end of each month with the API Fees due for the preceding month). Invoices will be sent directly to the billing contact identified on the Order, which you may update by providing written notice to Licensor. Late payments (on any undisputed amounts) may be subject to interest charges of 1.5% per month, or the maximum permitted by Applicable Law, whichever is lower, and the expenses associated with those collections. Billing disputes must be reported to Licensor in writing within 60 days from the invoice date. Except as otherwise provided in this Agreement, all payment obligations are non-cancelable and once paid are nonrefundable. 

5.2. Withholding Subscription Fees. All transaction based Subscriptions Fees in the applicable Order payable to the Licensor in this Agreement may be deducted and withheld from the settlement funds due to you by the Third Party App Provider. If such Subscription Fees are deducted and withheld, the Third Party App Provider shall provide such Subscription Fees directly to the Licensor. Customer shall audit and balance the data contained in the periodic statements and reports provided to Customer from the Licensor and/or authorized third party and shall promptly, but in no event more than 30 days after the date of the disputed item, notify the Licensor and/or authorized third party in writing (the “Notice Date”) of any disputed item or items on such periodic statements and reports. If the Licensor and/or authorized third party determines that the disputed item was credited or debited in error by the Licensor and/or authorized third party, they shall correct the error. Notwithstanding the foregoing, the Licensor and/or authorized third party shall not be liable for any recovery, reimbursement or otherwise of any amounts over 30 days from the Notice Date. Licensor and/or authorized third party will, however, use commercially reasonable efforts to recover any amounts over such 30-day period. Licensor and/or authorized third party shall not be liable for any damages, interest or costs associated with the error other than correcting the error. 

5.3. Taxes. All fees hereunder do not include any applicable sales or use taxes (such as GST or VAT). These taxes (if applicable) will be charged separately on the Order, unless you provide (in advance) a valid tax exemption certificate authorized by the applicable taxing authority. Customer is liable for applicable sales and use taxes. 


6.1. Customer Data. 

a. You are the exclusive owner of and retain all rights, title and interest to your Customer Data. You are responsible for the accuracy, quality, integrity, and legality of your Customer Data. You agree to abide by (and be responsible for your compliance with) Applicable Laws regarding your access and use of Customer Data with the Software. You assume full and complete responsibility for resolving any dispute regarding your right to the Customer Data. 

b. You hereby grant Licensor a nonexclusive, worldwide, non-sublicensable (except as necessary to Licensor’s service providers), non-assignable (except in accordance with Section 13.2), fully paid-up and royalty-free right and license to collect, process, use, transmit, and store the Customer Data for the purpose of providing the Software to you (and applicable Licensor services, as contemplated herein). 

c. In addition, Licensor may access and use de-identified Customer Data regarding third party brands or usage of the Software to improve the Software, Licensor’s services, develop new products and services and engage in any other business activity, including, without limitation, selling reports, summaries, analysis, or other outputs derived from such data to third parties for their own business purposes. For clarity and the avoidance of doubt, Licensor may collect, use and disclose to third parties (including, without limitation, any brands, distributors, or their respective agents) a report or other output of the specific product inventory and sales data for any third party product brands (excluding any Customer brands). Notwithstanding anything to the contrary, Licensor will not share, disclose, sell, or otherwise use any Customer Data relating to any Customer branded products and services (including any aggregated form) for any purpose other than strictly providing the Software to Customer. 

6.2. Privacy Disclosures. You agree to have an easily accessible privacy policy that contains the word “Privacy” and which will be linked to conspicuously from the applicable home page and other relevant pages of the applicable websites and/or within the applicable applications. The privacy policy must comply with the requirements of the Applicable Laws for notices to individuals whose data is collected by or provided to Licensor for use as contemplated by this Agreement. 

6.3. Licensor Monitoring. Licensor may monitor the performance aspects of the Software, in order to validate acceptable availability of the Software and potential negative activity; provided, however, that the data which Licensor captures will be in support of monitoring uptime and downtime via application endpoint services URLs and logs, and IP addresses, insofar as such data is required to validate the availability of the Software and associated connectivity and activity (“Software Performance Data”). 

6.4. Data Security. You will at all times maintain commercially reasonable and appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of all your software applications interfacing with the Software, and all other network, Equipment and computing infrastructure used in connection with your use of the Software (collectively, the “Customer IT Infrastructure”). Such safeguards include, but are not limited to, adequate access controls that: (a) govern access to the Customer IT Infrastructure; (b) restrict access to each component of the Customer IT Infrastructure to only those of your personnel, contractors or agents whose job functions require such access; and (c) are periodically reviewed to ensure that such access controls remain appropriate. In addition, you will conduct vulnerability testing of the Customer IT Infrastructure at regular intervals, in a manner consistent with prevalent industry standards, and will promptly and diligently take appropriate measures to mitigate the risks associated with any security vulnerabilities discovered as a result of such vulnerability testing. Without limiting the generality of the foregoing, you are responsible for (i) properly configuring 

the access rights for your Authorized Users, (ii) your Authorized User’s access and use of the Software, (iii) properly securing your Equipment, facilities, registers, computers and other devices used to access the Software, and (iv) the secure transmission of your Customer Data to the Software. 

6.5. Data Access and Controls. You manage and control access to your account (directly and by Authorized Users) and the use and processing of your Customer Data by the Software. Except as otherwise noted herein, Customer Data will not be accessed by Licensor except as necessary to identify, investigate, or resolve technical problems with the Software or to verify your compliance with this Agreement. Except as otherwise noted herein, Customer Data that is accessed by Licensor will (a) be kept confidential, (b) be handled according to Applicable Laws, and (c) not be shared with any unauthorized personnel or comingled with other customers’ data except to the extent that such Customer Data shall be obfuscated and anonymized. 

6.6. Disclosure of Data. Licensor may disclose Customer Data if the disclosure is necessary to comply with a valid court order or subpoena or to comply with Applicable Law of a governmental authority. Licensor will promptly notify you in writing of the request for such disclosure (unless prohibited by such process) and will cooperate with you, at your sole expense, if you choose to contest the disclosure, seek confidential treatment of the Customer Data to be disclosed, or to limit the nature or scope of the Customer Data to be disclosed. 


7.1. Default and Termination. A party may terminate this Agreement if the other party commits a material breach of this Agreement and does not cure the breach within 30 days from receiving written notice (a “Default”). If you terminate this Agreement while Licensor is in Default, Licensor will refund to you the unused portion of the Subscription Fees that were paid for the Software for the remainder of the Subscription Term. If Licensor terminates this Agreement while you are in Default, Licensor will be entitled to retain all Subscription Fees and other amounts paid to Licensor and enforce a Cancellation Fee, in addition to any other right Licensors has available to it in law or equity. 

7.2. Suspension of Software. Licensor reserves the right to temporarily suspend access to the Software if (a) you have undisputed amounts more than 30 days past due, (b) you have not paid the subscription renewal fees when due, or (c) Licensor reasonably determines that you are using the Software in a way that creates a security vulnerability to the Software, is in breach of this Agreement, or violates Applicable Laws. Licensor will use commercially reasonably efforts to give you prior notice if access will be suspended and will promptly restore access once the issue has been resolved. Licensor will not suspend access if you are reasonably and in good faith disputing a charge and cooperating in resolving the dispute. 

7.3. Effect of Termination. On the expiration or termination of this Agreement, you will (a) stop using and accessing the Software, and (b) pay to Licensor any Subscription Fees that had accrued but had not been paid prior to the effective date of termination. Any post-termination transition assistance requested from Licensor is subject to the mutual agreement of the parties and may require payment of professional services fees for such assistance. Sections 3.3, 5 (while Customer Data is stored in the Software), and 8 through 12 will survive the expiration or termination of this Agreement. 


8.1. Confidentiality. In addition to the confidential treatment of Customer Data pursuant to the terms of Section 6, in connection with the use of the Software or in the performance of professional services, each party may need to provide the other with certain Confidential Information, which shall include the pricing and other terms and conditions set forth in this Agreement and on the Order. The receiving party 

may only use this Confidential Information for the purpose for which it was provided and may only share this Confidential Information with its employees, agents, and representatives who need to know it, provided they are subject to similar confidentiality obligations. The receiving party will use the same degree of care to protect and prevent any unauthorized use or disclosure of the disclosing party’s Confidential Information that it uses to protect its own confidential information, but in no event less than reasonable care. 

8.2. Exceptions. Confidential Information does not include any information that (a) was known (without any confidentiality obligations) prior to disclosure by the disclosing party, (b) is publicly available (through no fault of the receiving party), (c) is rightfully received by a third party (without a duty of confidentiality), or (d) is independently developed (without access or use of Confidential Information). The receiving party may disclose Confidential Information when compelled to do so by law, so long as the receiving party provides prior written notice of the disclosure (if legally permitted) to allow the disclosing party the opportunity to seek protection or confidential treatment or to limit or prevent such disclosure. The receiving party also agrees to cooperate with the disclosing party if the disclosing party chooses to contest the disclosure requirement, seek confidential treatment of the information to be disclosed, or to limit the nature or scope of the information to be disclosed. 

8.3. Injunctive Relief. Each party acknowledges and agrees that violation of any covenants with respect to the Confidential Information of the other party may cause such other party irreparable harm, and that such other party will be entitled to seek an injunction and other equitable relief, without payment of any bond and in addition to all other remedies available to it as provided above or otherwise by law, to prevent any such violation or to secure enforcement of this Agreement. 


9.1. Licensor IP. Licensor owns all right, title and interest in and to Software, including any modifications and enhancements thereto. This Agreement does not grant any ownership rights to the Software and the Subscription Fees only apply to your use of the Software. Licensor may ask you for Feedback. If you elect to provide any Feedback, Licensor may freely use the Feedback you provide royalty-free without any obligations or restrictions. Any intellectual property rights which may be created as a result of Feedback shall vest in and remain the property of Licensor. 

9.2. Attribution. Unless otherwise set forth in the Order, Licensor may (i) use your name (and the corresponding trademark or logo) on Licensor’s website and marketing materials to identify your business as a customer, and (ii) create self-promotional materials, press releases, etc. regarding your business’ use of the Software. 


10.1. Mutual Warranties. Each party represents and warrants that: (a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (b) it has the full power and authority to enter into this Agreement and perform its obligations hereunder; and (c) this Agreement, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms. 

10.2. Additional Customer Warranties. You represent and warrant that, in connection with the collection, processing, transmission, and storage of any Customer Data applicable to your use of the Software or third party applications (pursuant to Section 3.4) in connection therewith, you (a) have obtained and shall maintain all necessary rights, licenses, consents, permissions, and lawful bases in compliance with all Applicable Laws to (i) use Customer Data for the purpose of using the Software, (ii) provide to Licensor 

data derived from the Customer Data as detailed herein, and (iii) provide Customer Data to other Third Party Application Providers as contemplated herein; and (b) have provided legally adequate privacy notices, disclosures and opt-out opportunities to all individuals for whom you have collected Customer Data. You also represent and warrant that the processing of Customer Data for the Software or any third party applications (pursuant to Section 3.4) in connection therewith is lawful under Applicable Law. 


11.1. Disclaimer. Licensor does not offer retail, tax, regulatory compliance or business operations advice. Licensor may provide general information about standard retail operations, tax rates, and other business practices, but such general information is intended for informational purposes only and is not intended to be relied upon as professional advice, or as any statement that you are in compliance with Applicable Laws. Licensor recommends that you seek the advice of other financial, tax or legal experts for advice in these areas. THE SOFTWARE AND LICENSOR SERVICES ARE PROVIDED “AS-IS” AND LICENSOR DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE ENTIRELY SECURE, COMPLETELY ERROR FREE, ACCURATE, UNINTERRUPTED, OR MEET YOUR REQUIREMENTS. EXCEPT AS EXPRESSLY PROVIDED HEREIN, LICENSOR DISCLAIMS ANY WARRANTIES, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. 

11.2. Limitation of Liability. EXCEPT FOR ANY GROSS NEGLIGENCE, WILLFUL MISCONDUCT, A PARTY’S INDEMNIFICATION OBLIGATIONS (PURSUANT TO SECTION 11), OR A BREACH OF SECTION 8 (CONFIDENTIALITY), NEITHER PARTY WILL BE LIABLE FOR (A) ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, OR LOSS OF PROFITS, GOODWILL, OR DATA OR OTHER INTANGIBLE LOSSES (REGARDLESS OF THE BASIS OR TYPE OF CLAIM AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), OR (B) AN AMOUNT THAT EXCEEDS THE SUBSCRIPTION FEES DUE FROM YOU UNDER THE APPLICABLE ORDER. THESE EXCLUSIONS ARE MEANT TO APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF THE FAILURE OF ANY SPECIFIC REMEDY. Notwithstanding the above, the Parties agree that any material breach of Section 3, Section 8 or Paragraph 9.1 will likely cause irreparable injury and that a party may seek injunctive relief in a court of competent jurisdiction to prevent an initial or continuing breach of Section 3, Section 8 or Paragraph 9.1 in additional to any other relief to which the owner of such proprietary information or Confidential Information may be entitled. 


12.1. By Licensor. Licensor will defend, indemnify and hold you harmless from and against any claim brought against you by a third party, any final award of damages or settlement amount, and any liabilities or expenses incurred by you (including reasonable attorneys’ fees) as a result of the claim, which alleges that the Software infringes any intellectual property right of a third party, provided that Licensor will have no obligation to the extent such claim arises from: (i) use of the Software in combination with other products or services (including, without limitation, any products or services provided by Third Party App Providers) if such infringement or misappropriation would not have arisen but for such combination; (ii) use of the Software by Customer for purposes not authorized under this Agreement; or (iii) any modification of the Software not made or authorized in writing by Licensor where such infringement or misappropriation would not have occurred but for such modification. If the use of the Software is (or in Licensor’s opinion is likely to be) enjoined due to such a claim, Licensor will either (a) procure the right to continue using the Software under the terms of this Agreement, (b) replace or modify the Software so 

that it is non-infringing, or (c) if Licensor is unable to achieve either of the foregoing options, then Licensor may cancel your license with respect to the infringing Software and refund you the unused portion of the Subscription Fees paid for the Software for which the use is legally prohibited. This Section describes Licensor’s entire responsibility and your sole remedy for any infringement claim or action regarding the Software. 

12.2. By You. You will defend, indemnify and hold Licensor, its affiliates, and its and their respective officers, directors, employees, and agents harmless from and against any claim (including, without limitation, any and all actions, claims, costs, damages, expenses, fees, fines, injuries, lawsuits, liabilities, and losses) brought against Licensor by a third party (including, without limitation, by a Third Party App Provider), any final award of damages or settlement amount, and any liabilities or expenses incurred by Licensor (including reasonable attorneys’ fees) as a result of the claim, which alleges (a) the access, use, or provision of any Customer Data in connection with your use of the Software or any products or services provided by Third Party App Providers violates any Applicable Law, or the intellectual property or other proprietary rights of any third party, (b) breach of any of your representations, warranties or obligations under this Agreement, or (c) your gross negligence, willful or wanton misconduct. 

12.3. Process. These indemnity obligations are conditioned on the indemnified party promptly notifying the indemnifying party in writing of the claim (a delay in providing notice does not excuse these indemnity obligations unless the indemnifying party is prejudiced by such delay), the indemnified party giving the indemnifying party sole control of the defense of the claim (and in any related settlement negotiations), and the indemnified party cooperating and, at the indemnifying party’s request and expense, assisting in such defense. The indemnified party may participate in the defense of the claim using its own counsel (at its own expense). The indemnifying party may not settle the claim without the indemnified party’s consent if such settlement imposes a payment or other obligation on the indemnified party. 


13.1. Relationship of the Parties. This Agreement does not create or imply any agency, partnership, or franchise relationship. This Agreement are intended for the benefit of the parties and is not intended to benefit any third party. Neither party has the authority to assume or create any obligation on behalf of the other party. The parties are independent contractors under this Agreement and nothing in this Agreement will be construed to create a partnership, joint venture, agency, or employer-employee relationship between you and Licensor. Neither party will act in a manner that expresses or implies a relationship other than that of independent contractor, nor bind the other party. 

13.2. Assignment. Neither party may assign the Order or this Agreement without the other party’s prior written consent (except to an affiliate or in connection with a merger, acquisition, reorganization, or sale of all or substantially all of the assets or equity of such party). Any attempt to assign the Order or this Agreement other than as permitted in this Agreement will be null and void. 

13.3. Notices. Any notice, approval, consent, or other communication intended to have legal effect under this Agreement must be given to the other party in writing, and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. 

13.4. Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement (excluding payment obligations) as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance. 

13.5. Contracting Entity and Governing Law. This Agreement shall be governed by the laws of the State of Nevada (which applies without regard to any conflicts of law principles). The parties agree that the United Nations Convention on Contracts for the International Sales of Goods is specifically excluded from application to this Agreement. 

13.6. Severability. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement. In the event any provision or term hereof is deemed to have exceeded applicable legal authority or shall be in conflict with applicable legal limitations, such provision shall be reformed and rewritten as necessary to achieve consistency and compliance with such applicable law. 

13.7. Entire Understanding. This Agreement, together with its exhibits and appendices, constitutes the complete and exclusive understanding and agreement between the parties regarding this subject and supersedes all prior or contemporaneous agreements or understandings (written or verbal) relating to the subject matter of this Agreement. No terms in any purchase order or in any order documentation (other than the Order or a Renewal Order) are incorporated into or form any part of this Agreement. If any terms are found to be void or unenforceable, the remaining terms of this Agreement will remain in full force and effect. Any waiver, modification, or amendment of this Agreement must be in writing and signed by authorized representatives of both parties. This Agreement may be provided in different languages, however, the English version of this Agreement will control. The parties agree that this contract is written and signed in English. 

13.8. Amendment. Licensor may change or update any part of this Agreement at any time by posting the revised terms on Licensor’s website. Licensor will notify you of any changes that, in its sole discretion, materially impact this Agreement. The updated Agreement will be effective as of the time of posting, or on such later date as may be specified in the updated Agreement, and your continued use of the Software after any such changes are effective will constitute your consent to such changes. 

13.9. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument. The parties hereto confirm that any electronic copy of another party’s executed counterpart of this Agreement (or such party’s signature page thereof) shall be deemed to be an executed original thereof. 

13.10. Equitable Remedies. In addition to any other remedies available to it at law or in equity, Licensor shall be entitled to seek injunctive relief (without the requirement of posting a bond or other form of security) to enforce the provisions of this Agreement. 

13.11. Number, Gender, Etc. Words importing the singular number only shall include the plural, and vice versa, words importing the masculine gender shall include the feminine gender and neuter gender, and vice versa, and words importing persons shall include a natural person, firm, trust, partnership, association, corporation, limited liability company, government board, agency, instrumentality, or other entity. 

13.12. Headings. The division of this Agreement into sections and the insertion of headings are for convenience of reference only and shall not affect the interpretation or construction of the Agreement or any provision hereof. 

13.13. Choice of Forum; Submission to Jurisdiction. The parties hereby agree that any suit, action, or proceeding seeking to enforce any provision of, or based on any matter arising out of or related to, this Agreement or the transactions contemplated hereby, whether in contract, tort, or otherwise, shall be brought in the state courts of the State of California sitting in San Diego County, California and any appellate court therefrom. 

Each of the parties hereby irrevocably consents to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action, or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the venue of any such suit, action, or proceeding in any such court or that any such suit, action, or proceeding which is brought in any such court has been brought in an inconvenient forum. Service of process, summons, notice, or other document by certified or registered mail shall be effective service of process for any suit, action, or other proceeding brought in any such court. 

13.14. Attorneys’ Fees and Costs. If any legal proceeding is brought for the enforcement of this Agreement, or because of an alleged breach, default or misrepresentation in connection with any provision of this Agreement or other dispute concerning this Agreement, the successful or prevailing party shall be entitled to recover reasonable attorneys’ fees and costs incurred in connection with such legal proceeding. The term “prevailing party” shall mean the party that is entitled to recover its costs in the proceeding under applicable law, or the party designated as such by the court. 

13.15. Waiver. Failure of either party at any time to require performance by the other party of any provision hereof shall not be deemed to be a continuing waiver of that provision, or a waiver of its rights under any other provision of this Agreement, regardless of whether such provision is of the same or a similar nature.