How To Use The Cloud Workspace Suite

Transcription

1 IndependenceIT, Inc. (the Licensor ) SOFTWARE LICENSE AGREEMENT PLEASE NOTE THAT THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT SHALL GOVERN YOUR USE OF THE SOFTWARE, AND SHALL SUPERCEDE ANY TERMS THAT APPEAR ON ANY SOFTWARE DOCUMENTATION OR STATEMENTS MADE DURING THE SOFTWARE INSTALLATION PROCESS. IMPORTANT-READ CAREFULLY: ANY PERSON (AS AN INDIVIDUAL OR LEGAL ENTITY) AGREES THAT BY DOWNLOADING, INSTALLING, OR USING THE SOFTWARE (as defined below), HE/SHE/IT (the Licensee ) IS BOUND BY THE TERMS OF THIS SOFTWARE LICENSE AGREEMENT (the AGREEMENT ), and that if any term of this AGREEMENT is unacceptable, then the user MUST NOT DOWNLOAD the SOFTWARE, or if DOWNLOADED immediately UNINSTALL the SOFTWARE from any and all devices on which the SOFTWARE resides, and perpetually refrain from USEING THE SOFTWARE until such time, if any, that all of the terms of this Agreement are deemed acceptable. SPECIAL NOTICE FOR EVALUATION LICENSES. If Licensee is licensing the Software for evaluation purposes, then Licensee s use of the Software is only permitted in a non-production environment and for the limited period defined by Licensor, ( Evaluation License ). Notwithstanding any other provision in this Agreement, an Evaluation License of the Software is provided AS-IS without indemnification, support or warranty of any kind, expressed or implied. ARTICLE 1. DEFINITIONS. Application and Approved Applications. Shall mean a computer software code, whether custom developed or commercially available, designed by Licensee or a third party for direct use as licensed by Licensee to perform a specific computing task (such as Licensee Word, Excel, Goldmine or Intuit QuickBooks). Notwithstanding the foregoing, Application shall not mean the Software. Any reference to Approved Applications shall mean those applications identified in the Software application list contained within the Cloud Workspace Suite. Cloud Workspace Solution. Shall mean that element of service that Licensee creates for its Users, as hereinafter defined, that allows each User to connect to their Remote Applications or Remote Desktop resources from any internet connected device. Cloud Workspace Suite. Shall mean the Software that provides provisioning, access, and ongoing management to Users, and allows Licensee to serve a Cloud Workspace Suite from its own or a third party s data center. IndependenceIT, Inc. or IIT. Shall mean that Delaware corporation with an office at: IndependenceIT, Inc Brookside Road, Suite 120, Allentown, PA 18106, and which is the Licensor under this Agreement. Intellectual Property. Shall mean either Licensor s or Licensee s: (a) patents and patent applications; (b) all works of authorship, copyrights, registrations and applications therefor and all other rights corresponding thereto including without limitation moral rights; (c) trademarks, trade names, or service marks; (d) industrial designs, and integrated circuit topography; and (e) any other statutory provision or common or civil law principle regarding intellectual and industrial property, whether registered or unregistered, and including rights in any application for any of the foregoing. Licensee Data. Shall mean all data and information supplied by a Licensee to IIT when using the Software. 1

2 Licensee Media. Shall mean any and all media, data, files and digital information of Licensee. Licensee Specifications. Shall mean the information provided by the Licensee pertaining to the number of, and access rights to, Licensee Seats. Open Source Software or OSS. Shall mean any software components embedded in the Software and provided under separate license terms. Seat. Shall mean the authorized connection, via unique username, password and/or other access credentials that IIT shall provide to Licensee by which Licensee s User can access the Software from a computer or other network device. Software. Shall mean the IIT software defined as follows: 1) Provision Cloud Workspace environments using the Cloud Workspace control panel at 2) Download install, and run the Cloud Workspace active directory provisioning tool only for the purpose of provisioning new Cloud Workspace instances; 3) Download and install Cloud Workspace client connection software on end user devices; 4) Connect to Cloud Workspace Desktops using the HTML5 connection interface at portal.cloudworkspace.me 5) Access Cloud Workspace user support tools using the Cloud Workspace control panel at 6) Access Cloud Workspace server instances using the Cloud Workspace control panel at 7) CW Automation Manager, CW Workflow Manager and the CWS Virtual Data Center 8) All management and control applications provided by IndependenceIT as part of the Virtual Data Center (VDC). Software Documentation. Shall mean instructions, user manuals, and documentation provided to Licensee in connection with the Software, including for Software configuration and management purposes, in either electronic, online help files or hard copy format. User. Shall mean Licensee s end user under this Agreement. Virtual Data Center or VDC. Shall mean a discrete instance of IIT s Cloud Workspace Suite whether installed on Licensee, or third party data centers. ARTICLE 2. APPOINTMENT. 2.1 Non-Exclusive Grant of Rights. IIT hereby grants Licensee, and Licensee accepts, subject to the terms and conditions of this Agreement, a limited, revocable, non-exclusive, non-transferable license to use the Software and the Software Documentation, and to permit Users the ability to access Applications and data from any Internet-connected device via the Cloud Workspace Suite. In addition to the foregoing license granted to Licensee, Licensee may allow Users to access, use and/or operate the Software under Licensee s contractual relationship with its Users, but only for the sole purpose of delivering the Cloud Workspace Suite to the Users, and provided that Licensee in its contractual relationship with its Users is fully liable and responsible for User s compliance with terms and conditions of this Agreement and provided that any breach by a User shall be deemed to be a breach by Licensee Reservations and Restrictions on License a. Notwithstanding anything in this Agreement, IIT expressly reserves to itself all rights in and to the Cloud Workspace Suite, including but not limited to the unrestricted right to sell, market, 2

3 license, develop, advertise and promote IIT s Cloud Workspace Suite, and to appoint or engage such other persons or entities as it may deem appropriate as licensees of the Cloud Workspace Suite. b. Licensee s license to use the Cloud Workspace Suite, as it applies to accessing the Cloud Workspace Solution, shall be limited to offering Users a personal, royalty-free, non-exclusive, non-assignable, non-transferable right to use the Software provided as part of the Cloud Workspace Suite. For avoidance of doubt, the sole purpose of this Agreement is to allow Licensee to offer User use of the Cloud Workspace Solution. c. Licensee shall not copy, modify or distribute (other than as set forth herein), any part of the Cloud Workspace Suite, and shall not directly or indirectly, reverse engineer or attempt to extract Software code without express written permission of IIT, which may be withheld at IIT s sole and unfettered discretion. Licensee shall ensure that each User is contractually obligated to comply with the restrictions of this Agreement, including but not limited to this Article 2.2(c) and Article 2.2(d) below. d. Licensee acknowledges that title to Cloud Workspace Suite, all proprietary rights therein and all material supplied to Licensee under this Agreement shall remain the sole and exclusive property of IIT (unless IIT s use is subject to a third party license to it, and in such case, it shall be the sole and exclusive property of said third party). Licensee acknowledges and agrees that it has no right, interest or title to the Cloud Workspace Suite other than the limited temporary grant of a right to use as specifically set forth in this Agreement, which right does not include any rights of ownership in the Cloud Workspace Suite. e. Licensee may provide feedback, suggestions, evaluations or improvements (collectively, Feedback ) regarding or relating to the Cloud Workspace Suite or Cloud Workspace Solution. Licensee hereby grants to IIT a non-exclusive, perpetual, irrevocable, royalty-free, worldwide right and license to use, reproduce, disclose, sublicense, distribute, modify, and otherwise exploit any Feedback without restriction in any manner now known or in the future conceived Open Source Software. Notwithstanding anything herein to the contrary, Open Source Software is licensed to Licensee under each such OSS s own applicable license terms. To the extent applicable: (a) the OSS license terms shall take precedence over this Agreement to the extent that this Agreement imposes greater restrictions on a Licensee than the applicable OSS license terms; and (b) and to the extent the license for any Open Source Software requires IIT to make available to Licensee the corresponding source code and/or modifications ("Source Files"), Licensee may obtain a copy of the applicable Source Files by contacting IIT. ARTICLE 3. OBLIGATIONS OF LICENSEE Licensee Acknowledgements & Covenants a. Compliance with Updates. Licensee acknowledges and agrees that IIT, in its sole discretion: (i) may update or modify software within the Cloud Workspace Suite; or (ii) may discontinue, replace or delete software (or elements thereof, and (i) and (ii) being collectively referred to as Update in this Article 3.1), and further acknowledges and agrees that unless this Agreement is amended as provided for in this Agreement, IIT shall have no obligation to provide Licensee with such Update. Notwithstanding the foregoing, should IIT wish Licensee to use an Update, Licensee agrees to incorporate the Update within ten (10) days of IIT making a written request to Licensee requiring the implementation of the Update. IIT, whenever possible, will provide Licensee with notice of the anticipated date for any Update, along with an explanation of its nature. b. Compliance with Laws & Regulations. Licensee is wholly responsible for compliance with any and all applicable laws and regulations relative to the use of Software and operation of Licensee s business, and Licensee shall bear all costs associated with such compliance. 3

4 c. Incorporation of Obligations in User Agreements. Licensee agrees that it shall include provisions in its agreements with Users that are consistent with the grant of rights made in Article 2 of this Agreement, along with any and all other terms and conditions of this Agreement affecting the grant of rights and the restrictions thereon. d. Covenant Not to Disclose or Use Protected Information. Licensee agrees that it shall not use IIT s proprietary data or information, Intellectual Property or any other IIT industry knowledge gained from IIT to market, sell, support or maintain similar software or services and/or compete against IIT. Licensee further acknowledges that IIT has obtained or is in the process of obtaining certain intellectual property protection for its marks and services, including but not limited to, trademark, copyright and patent protection. This covenant shall survive the termination of this Agreement and shall be enforced to the maximum extent of applicable law. e. Covenant to Protect IIT Intellectual Property. Licensee agrees that it shall protect IIT from, and itself not engage in, any activity to duplicate, reverse engineer, or derive any IIT Intellectual Property or processes for any purpose whatsoever unless expressly, and to the extent, authorized by IIT, in writing. This covenant shall survive the termination of this Agreement and shall be enforced to the maximum extent of applicable law f. Covenant not to Infringe on or Misappropriate Intellectual Property. Licensee expressly agrees, subject to the terms of this Agreement, that it shall not: (i) attempt to recreate any elements of the Software and/or Cloud Workspace Suite licensed to Licensee under this Agreement; (ii) use network analysis tools to evaluate the Software and/or Cloud Workspace Suite; or (iii) reverse engineer or decompile any elements (in whole or in part) of the Software and/or Cloud Workspace Suite. g. Survival. The above covenants of this Article 3, shall survive the termination of this Agreement and shall be enforced to the maximum extent of applicable law. ARTICLE 4. WARRANTIES, DISCLAIMERS AND LIMITATIONS. 4.1 LIMITED WARRANTY AND DISCLAIMERS. a. Limited Warranty and Disclaimers. IIT WARRANTS THAT DURING THE WARRANTY PERIOD (AS DEFINED BELOW): (1) THE MEDIA ON WHICH THE SOFTWARE IS FURNISHED WILL BE FREE OF DEFECTS IN MATERIALS AND WORKMANSHIP UNDER NORMAL USE; AND (2) THAT THE SOFTWARE WILL PERFORM SUBSTANTIALLY IN ACCORDANCE WITH THE DOCUMENTATION ACCOMPANYING THE SOFTWARE EXCLUDING ANY PERFORMANCE DESCRIPTIONS OR BENCHMARKS SET FORTH IN SUCH DOCUMENTATION. THE "WARRANTY PERIOD" MEANS A PERIOD BEGINNING ON THE DATE OF LICENSEE'S RECEIPT OF THE SOFTWARE AND ENDING ON THE LATER OF: (A) NINETY (90) CALENDAR DAYS FROM THE DATE OF INITIAL SHIPMENT OF THE SOFTWARE BY IIT, OR (B) THE END OF THE MINIMUM PERIOD REQUIRED BY THE LAW OF THE APPLICABLE JURISDICTION. THE LIMITED WARRANTIES EXTEND ONLY TO THE ORIGINAL LICENSEE. NOTWITHSTANDING THE FOREGOING, IIT DISCLAIMS ALL WARRANTIES IN THE EVENT THAT THE SOFTWARE: (A) IS LICENSED FOR BETA, EVALUATION, TESTING OR DEMONSTRATION PURPOSES FOR WHICH IIT DOES NOT RECEIVE A LICENSE FEE, (B) HAS BEEN ALTERED, EXCEPT BY IIT, (C) HAS NOT BEEN INSTALLED, OPERATED, REPAIRED, OR MAINTAINED IN ACCORDANCE WITH INSTRUCTIONS SUPPLIED BY IIT, (D) HAS BEEN SUBJECTED TO ABNORMAL PHYSICAL OR ELECTRICAL STRESS, MISUSE, NEGLIGENCE, OR ACCIDENT, OR (E) IS USED IN ULTRAHAZARDOUS ACTIVITIES. 4

5 FURTHER, IIT DOES NOT WARRANT THAT THE SOFTWARE IS ERROR FREE OR THAT LICENSEE WILL BE ABLE TO OPERATE THE SOFTWARE WITHOUT PROBLEMS OR INTERRUPTIONS. IN ADDITION, DUE TO THE CONTINUAL DEVELOPMENT OF NEW TECHNIQUES FOR INTRUDING UPON AND ATTACKING NETWORKS, IIT DOES NOT WARRANT THAT THE SOFTWARE OR ANY EQUIPMENT, SYSTEM OR NETWORK ON WHICH THE SOFTWARE IS USED WILL BE FREE OF VULNERABILITY TO INTRUSION OR ATTACK. EXCEPT AS EXPRESSLY SPECIFIED IN THE WARRANTY. ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, SATISFACTORY QUALITY OR ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE, ARE HEREBY EXCLUDED TO THE EXTENT ALLOWED BY APPLICABLE LAW. THERE IS NO WARRANTY AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SOFTWARE OR AGAINST INFRINGEMENT. TO THE EXTENT AN IMPLIED WARRANTY CANNOT BE EXCLUDED BY APPLICABLE LAW, THEN SUCH WARRANTY IS LIMITED IN DURATION TO THE WARRANTY PERIOD, UNLESS APPLICABLE LAW DICTATES A LONGER PERIOD APPLY. b. Sole Remedy. LICENSEE'S SOLE AND EXCLUSIVE REMEDY AND THE ENTIRE LIABILITY OF IIT, AND ITS AFFILIATES (IF APPLICABLE), UNDER THE LIMITED WARRANTIES AND THIS AGREEMENT WILL BE, AT IIT S OPTION: (i) REPAIR, REPLACEMENT OF THE SOFTWARE; OR (ii) REFUND OF THE AMOUNT PAID BY LICENSEE UNDER THIS AGREEMENT DURING THE PERIOD OF SIX (6) MONTHS PRIOR TO REPORTING THE ISSUE IN WRITING TO IIT. EXCEPT AS EXPRESSLY GRANTED IN THIS AGREEMENT, THE SOFTWARE IS PROVIDED AS-IS. c. Limitation of Liability and on Actions. TO THE MAXIMUM EXTENT MANDATED BY LAW, IN NO EVENT WILL IIT AND ITS AFFLIATES BE LIABLE FOR ANY LOST PROFITS OR BUSINESS OPPORTUNITIES, LOSS OF USE, LOSS OF REVENUE, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF DATA, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, PRODUCT LIABILITY, OR OTHERWISE. BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE PRECEDING LIMITATION MAY NOT APPLY TO A LICENSEE. IIT S AND ITS AFFILIATES LIABILITY UNDER THIS AGREMENT WILL NOT, IN ANY EVENT, REGARDLESS OF WHETHER THE CLAIM IS BASED IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EXCEED THE AMOUNT SET FORTH IN SUBSECTOIN (b) ABOVE. THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF WHETHER IIT OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. LICENSEE MAY NOT BRING A CLAIM UNDER THIS AGREEMENT LATER THAN EIGHTEEN (18) MONTHS AFTER THE CAUSE OF ACTION ARISES. d. Survival. The above provisions of this Article 4 shall survive the termination of this Agreement and shall be enforced to the maximum extent of applicable law. ARTICLE 5. OBLIGATIONS OF IIT TO LICENSEE Resolution of Issues. Licensee shall promptly report any issues with the Software and/or Cloud Workspace Suite to IIT for resolution. Whenever possible, IIT shall resolve issues to Licensee s satisfaction within the time periods specified below. 5

6 Priority Level Definition 1 Service disruption caused by IIT platform components including System Automation Manager, Secure Access Gateways, HTML5 Portals, or other IIT platform elements introduced in the future which control user authentication and access to the Cloud Workspace. Further, IIT shall work cooperatively with Licensee to assist in connection diagnostics where system availability disruption may be caused by the mutual interaction of IIT s platform and Licensee s infrastructure. 2 IIT platform ordering and self service tools including Cloud Workspace Suite, and other platform elements introduced in the future which permit Licensee s technical team and/or Users to self-manage new service provisioning and common support requests for which the listed tools provide a self-service interactive interface. 3 Application errors resulting from IIT platform maintenance or upgrade. This includes application errors resulting from platform changes introduced by IIT for the purposes of enhancing system security, system performance, or system functionality. Licensee and IIT shall mutually and cooperatively evaluate security risks associated with deploying security enhancements which may alter user level application functionality. Response Time Within 4 hours Within 8 hours Within 24 hours ARTICLE 6. PAYMENT TERMS Price for Software and Services; Invoicing. The Licensee agrees to make payment(s) consistent with the payment terms and conditions of IIT s payment schedules, which are subject to change from time to time, or as otherwise agreed upon by the parties. 6

7 ARTICLE 7. TERM. 7.1 Term. This Agreement shall commence on the Licensee s download, installation or initial use of the Software, whichever is earliest in time, and continue in effect until terminated in accordance with this Article or under the termination provisions of any ancillary agreement Termination by Notice. IIT may terminate this Agreement at any time by its delivering a Notice of Termination to Licensee. 7.3 Termination for Breach. Each Party shall have the right to terminate this Agreement for any breach of this Agreement by the other Party that is not cured, remedied or redressed by the breaching Party within thirty (30) days after having received written notice of such breach from the non-breaching Party. 7.4 Additional provisions for Termination for Breach may be included in the SBTA. ARTICLE 8. LICENSEE s POST-TERMINATION OBLIGATIONS Effect of Termination. Upon the termination or expiration of this Agreement, Licensee shall cease use, and cause its Users to cease use, of the Software and Cloud Workspace Suite. 8.2 Return/Destruction of IIT Software and Information. At the direction of IIT, Licensee shall either return or certify destruction of all Software and Software Documentation to IIT, and return, or if requested by IIT, destroy, any related IIT Confidential Information (as the term is defined in Article 11 hereof) in the Licensee s possession or control and have an officer of Licensee certify to IIT in writing that it has fully complied with these requirements. 8.3 Access and Removal by IIT. In the event IIT determines that the Software or Cloud Workspace Suite may still be in use by Licensee following the Termination of this Agreement, or in the event that a Licensee is not abiding by the obligations of this Article 7, then, at IIT s option, may take the following action and Licensee hereby agrees to allow such action to be taken by IIT: IIT shall have physical or virtual access to the data center where IIT can examine the storage environment and validate that the Software has been fully removed from all live and backup storage systems that were allowed under this Agreement prior to termination. 8.4 Removal by IIT. As an alternative to those actions available to IIT under Article 8.3, IIT may elect, at its option, to have the Licensee restoration of the system and Software operation to its running state and then allow IIT engineers access to the system for the purposes of removing IIT Software and intellectual property from the system(s) on which it was used and/or backed-up to. 8.5 Certification. If the Licensee s actions necessitate IIT action under Article 8.3 or 8.4, then Licensee shall provide IIT with an affidavit or some legal instrument satisfactory to the IIT legal team that the access provided to IIT was to any and all systems where the Software resided under the Agreement Survival. Any provision will survive any termination or expiration if by its nature or context it is intended to survive, including but limited to those Articles which expressly state that they survive the termination of this Agreement. ARTICLE 9 NO FRANCHISE AND NO AGENCY. The relationship created by this Agreement does not constitute the granting of a franchise to, or creating an agency relationship with, Licensee. ARTICLE 10 RECORDKEEPING & AUDIT. 7

8 During the Term set forth in 7.1 and for two (2) years after its expiration or termination, Licensee will maintain accurate records of Licensee s use of the Software sufficient to show compliance with the terms of this Agreement. During this period, IIT will have the right to audit Licensee s use of the Software to confirm compliance with the terms of this Agreement. That audit is subject to reasonable notice by IIT and will not unreasonably interfere with Licensee s business activities. IIT may conduct no more than one (1) audit in any twelve (12) month period, and only during normal business hours. Licensee will reasonably cooperate with IIT and any third party auditor and will, without prejudice to other rights of IIT, address any non-compliance identified by the audit by promptly paying additional fees. Licensee will promptly reimburse IIT for all reasonable costs of the audit if the audit reveals either underpayment of more than five (5%) percent of the Software fees payable by Licensee for the period audited, or that Licensee has materially failed to maintain accurate records of Software use. ARTICLE 11 LIMITED LICENSEE INDEMNIFICATION Indemnification. In addition to any indemnification provisions set forth in any other agreement between the parties, if any, the following indemnification provisions govern the relationship between Licensee and IIT. Licensee shall indemnify and hold IIT harmless in any action brought against IIT attributable to actions of Licensee or its User, in whole or in part, on the following terms: 11.2 Defense and Indemnification. Subject to the provisions of this Article 11 and any applicable provisions of the any other agreement between the parties, if any, IIT shall defend Licensee against any viable third party claim that the Software infringes upon any patent, trademark or copyright of such third party, or misappropriates a trade secret (but only to the extent that the infringement or misappropriation is not a result of Licensee s actions) made under the laws of a country in which IIT does business ( Infringement Claim ). Further IIT shall indemnify Licensee from the resulting costs and damages finally awarded against Licensee to such third party by a court of competent jurisdiction or agreed to in settlement. The foregoing obligations are subject to the Licensee following each of these conditions: (i) prompt written notice to IIT by Licensee of the Infringement Claim; (ii) Licensee allowing IIT sole and complete control over the defense of the Infringement Claim and any settlement negotiations; and (iii) Licensee reasonably cooperating in response to IIT requests for assistance in its defense of the Infringement Claim. IIT shall not settle or compromise any Infringement Claim without the express prior written consent of Licensee Remedy by IIT. If any Software is, or will become, or in IIT s opinion may become, the subject of an Infringement Claim, IIT may, at IIT s sole option and expense, take one of the following actions: (a) procure the rights necessary for Licensee to make continued use of the affected Software; (b) replace or modify the affected Software to make it non-infringing; or (c) terminate the License to the affected Software and discontinue the related support services, and, upon Licensee s certified deletion of the affected Software, refund: (i) the fees paid by Licensee for the use of the affected Software, less straight-line depreciation over a three (3) year useful life beginning on the date such Software was delivered; and (ii) any pre-paid service fees attributable to related support services to be delivered after the date such service is stopped. Nothing in this Article 11.3 shall limit IIT s obligation under Article 11.1 to defend and indemnify Licensee, provided that Licensee replace the allegedly infringing Software upon IIT s making alternate Software available to Licensee and/or Licensee discontinue using the allegedly infringing Software upon receiving IIT s notice terminating the affected License Exclusions. Notwithstanding the foregoing, IIT will have no obligation under this Article 11 or otherwise with respect to any claim arising out of or based on: (a) a combination of Software with non-iit products; (b) use for a purpose or in a manner for which the Software was not designed by IIT; (c) use of any older version of the Software when use of a newer IIT version would have avoided the infringement; (d) any modification to the Software made without IIT s express written approval; (e) any claim that relates to open source software or freeware technology or any derivatives or other adaptations thereof that is not embedded by IIT into Software listed on IIT s commercial price list; or (f) any Software provided on a no charge, beta or evaluation basis. THIS ARTICLE 11 STATES LICENSEE S SOLE AND EXCLUSIVE REMEDY AND IIT S ENTIRE LIABILITY FOR ANY INFRINGEMENT CLAIMS OR ACTIONS. 8

9 11.5. Survival. The rights of indemnification set-out in this Article 11 shall survive any termination of this Agreement and, notwithstanding such termination, shall continue in full force-and-effect for the benefit of IIT in accordance with the terms hereof. ARTICLE 12. NON-DISCLOSURE & CONFIDENTIALITY IIT and Licensee have agree that they shall remain bound by any confidentiality provisions of any other agreements between them, including but not limited to any Confidentiality Agreement or Non-Disclosure Agreement (the NDA ), and both IIT and Licensee hereby represent and warrant that each will strictly abide with the terms and conditions of each such agreements and hereby acknowledge that any Confidential Information revealed, disclosed or otherwise in their knowledge or possession in connection with this Agreement or the SBTA shall be subject to the confidentiality provisions of the NDA. The term Confidential Information shall have the meaning provided to it in the NDA between the parties. ARTICLE 13. MISCELLANEOUS TERMS. In addition to any Miscellaneous Terms set forth in the SBTA, which are incorporated herein by reference, the Licensee and Licensor shall abide by the following: Transfer and Assignment; No Sublicense. This Agreement may be assigned at any time by IIT, but shall not be assigned, transferred, or delegated, in whole or in part, by Licensee without the express written consent of IIT, which shall not be unreasonably withheld, delayed or conditioned, except that an approved action shall not relieve the Licensee, and the assignee, transferee or delegate from strictly abiding by the obligations of this Agreement. Any attempted transfer or assignment without express prior, written, approval by IIT shall be void and shall not be binding. Nothing in this Agreement shall be construed as authorizing Licensee to sublicense any right or permissive use it has been granted pursuant to this Agreement Amendments. This Agreement may not be changed, amended or deleted except by the written agreement of authorized officers of the parties, and no course of dealing will alter the terms of this Agreement Notice. Notice shall be given to a party via the customary means of electronic communication established by the parties during their normal communications with one another under the Agreement provided that delivery of such notice is subject to confirmation by the sender Entire Agreement. This Agreement contains the entire agreement between IIT and Licensee with respect to the licensed Software, and accordingly supersedes and annuls any prior contract, agreement or understanding between IIT and Licensee related thereto Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the State of Delaware, without regard for its choice of law provisions. The Parties hereby agree that the courts of the State of Delaware have jurisdiction and are an appropriate venue for any action relating to or arising from this Agreement. Any exercise or pursuit by IIT of its rights, remedies or relief, which may include injunctive relief shall be cumulative and shall not inhibit the pursuit of other IIT remedies available to it at law or equity Language. The Parties confirm that it is their wish that this Agreement, as well as all other documents relating hereto, including notices, have been and shall be drawn-up in the English language only. 9