Software License and Services Agreement

    SIGNIANT INC.

SOFTWARE LICENSE AND SERVICES AGREEMENT (“AGREEMENT”)

BEFORE YOU CLICK ON THE “I AGREE” BUTTON OR USE THE PRODUCT (THE “PRODUCT” OR “PRODUCTS”) MADE AVAILABLE TO YOU BY SIGNIANT INC. (“SIGNIANT”), CAREFULLY READ ALL THE FOLLOWING TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE AND SERVICES AGREEMENT (THE “AGREEMENT”).  IF YOU ARE USING THE PRODUCT(S) FOR THE FIRST TIME, AND YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT USE THE PRODUCT(S). IF YOU ARE USING THE PRODUCT(S) AS PART OF AN ORGANIZATION AND ARE THE FIRST MEMBER OF YOUR ORGANIZATION TO ACCEPT THE TERMS OF THIS AGREEMENT, YOU WARRANT AND REPRESENT TO SIGNIANT THAT YOU ARE DULY AUTHORIZED TO AGREE TO THE TERMS OF THIS AGREEMENT ON BEHALF OF YOUR ORGANIZATION AND TO BIND YOUR ORGANIZATION TO ITS TERMS. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU.

BY CLICKING ON THE “I AGREE” BUTTON OR USING THE PRODUCT(S), YOU ARE ACKNOWLEDGING THAT YOU ARE BOUND BY THE TERMS OF THIS AGREEMENT AND ARE ALSO AGREEING THAT THE LICENSE, AND USE OF THE PRODUCT(S) AND RELATED SERVICES SHALL BE SUBJECT TO THE TERMS OF THIS AGREEMENT.  AS USED IN THIS AGREEMENT THE TERM “LICENSEE” REFERS TO (I) YOU OR (II) IF YOU ARE USING THE PRODUCT AS PART OF YOUR ORGANIZATION, YOUR ORGANIZATION AND YOU PERSONALLY AS A MEMBER OF SUCH ORGANIZATION.

THIS AGREEMENT SHALL BE EFFECTIVE AS OF THE DATE IT IS FIRST ACCEPTED OR THE PRODUCT(S) OR RELATED SERVICES ARE USED BY THE LICENSEE. USE OF ANY PRODUCT(S) OR SERVICES BY THE LICENSEE WHILE THIS AGREEMENT IS IN EFFECT SHALL CONSTITUTE ACCEPTANCE OF THE TERMS OF THIS AGREEMENT BY LICENSEE TO THE PURCHASE, LICENSE, AND USE OF ALL OR ANY PART OF SUCH PRODUCT(S) AND RELATED SERVICES.

1. SOFTWARE LICENSE GRANT

1.1 Signiant grants to Licensee a nonexclusive, nontransferable, limited license without the right of sublicense to use the software product ordered on and for the terms specified in an Ordering Document (the “Product”) in accordance with the applicable documentation provided with the Product or made available by Signiant (“Documentation”). Except as otherwise explicitly permitted herein, Licensee may install and use the object code version of such Product and its Documentation only for the specific Signiant Product(s) ordered, for its internal use, at its own facilities in the number of copies and at the locations ordered by Licensee. Licensee is the organization identified in the header of this document and its Affiliates. “Affiliate” means a legal entity which is controlled by or is under common control with the Licensee. Control means (i) beneficial ownership of at least fifty percent (50%) of the voting securities of a corporation or other business organization with voting securities, or (ii) a fifty percent (50%) or greater interest in the profits and capital of a partnership or other business organization without voting securities.

1.2 Signiant hereby advises the Licensee and Licensee acknowledges that the Product, including the Documentation, is protected, among other ways, by federal copyright law and international treaties. Licensee will not copy the Product except (i) as necessary to read the Product from the media into the memory of a computer solely for the purpose of executing it on a single machine (whether a stand-alone computer or a workstation of a multi-terminal system) or (ii) to create an archival copy. For all Products except Signiant Media Shuttle, Flight or Web Transfer API Products, Licensee may make one (1) copy of the Product for each license that it has purchased for the Product. Licensee may create one (1) archival copy of the Product, provided that any copy shall include Signiant’s copyright and other proprietary notices of Signiant and its licensors. Signiant agrees to provide the Licensee with copies of Documentation initially required by Licensee not to exceed the one (1) per license. Additional copies will be provided at Signiant’s standard charges.

1.3 Licensee may not make any attempt to unlock or bypass any initialization system or system designed to control use, or encryption techniques utilized by the Product. Licensee may not copy, modify, reverse engineer, decompile, disassemble or create derivative works based on the Product or Documentation or install or use the Product in such manner as to enable the use of unlicensed Signiant Products. Any use, duplication or disclosure by or to the US Government is subject to the terms of this Agreement and is furnished as unpublished, copyrighted, trade secret, proprietary data with Restricted Rights pursuant to FAR 52.227-19 Commercial Computer Product

1.4 For all Products except Signiant Media Shuttle, Flight and Web Transfer API.

1.4.1 Upon prior written notice delivered to Signiant, Licensee may also install Signiant Media Agents (“Agents”) licensed by Licensee hereunder at a Licensee Client’s facility and permit such Client to use the Agent(s) solely to deliver content to or from Agent(s) licensed for such use. For the purpose of this Agreement, “Licensee Client” is defined as any organization for which Licensee is performing billable services in connection with Licensee’s business under an approved purchase order.

1.4.2 Except as otherwise explicitly permitted herein, Licensee shall only make use of the Product as follows: (i)Product is for use by Licensee personnel only; (ii)the Agent license key(s) can only be applied to a single Signiant Manager (the “Manager”); (iii)the Agents can only be used to communicate directly to a single Manager licensed by Licensee or to additional Registered Managers through their primary manager. For the purpose of this section, “Registered” means the Agent security certificate located within the Product has been stored in the Manager or exchanged with other Manager(s).

1.4.3 Licensee may not install the Agents at a Licensee Client’s facility nor allow the Licensee Client to use the Agents unless Licensee first enters into a written agreement (the “Client Agreement”) with such Licensee Client that contains terms at least as restrictive with respect to the Product as those contained herein and includes the following or similar language: “The Licensee (as listed in this agreement) agrees that subject to the license rights granted hereunder all intellectual property rights with respect to the software (the “Signiant Product”) of Signiant, Inc. (“Signiant”) belong to Signiant and Signiant retains all rights therein. Licensee shall not (i) disassemble, decompile, or reverse engineer, reverse compile or modify the object code of the Signiant Product, or otherwise attempt to learn the source code, except as expressly permitted by local law, or (ii) distribute or transfer the Signiant Product to any party.” Licensee shall use best efforts to enforce the terms of the Client Agreement pertaining to Signiant and the Product and Licensee shall be fully liable and responsible to Signiant for any breach of the Client Agreement by the Licensee Client.

1.4.4 Licensee may use the Product to transfer simultaneously no more than the number of files (listed as the number of concurrent transfers) specified in the Ordering Document.

1.5 For users of Signiant Media Shuttle Product only.

1.5.1 Licensee may activate Users and Portals as it deems necessary and will be charged for the number of Users and Portals in accordance with its Pricing Plan as defined on the Ordering Document. “User” shall be defined as any one individual and associated email address who, using the Media Shuttle Product, sends one or more files per month and/or who receives more than two files per month. Individually identified Users cannot be shared with any other individual(s) or used as pool or group accounts. “Portal” shall mean a unique, Signiant owned and controlled URL that enables a User or Signiant-authorized entity to interact with other Signiant software to send, submit and share files with other users or Signiant-authorized entities. Each party that is designated by Licensee as a User shall be sent a link and password by the Product in connection with the use of the Product (such link and domain name shall be owned by Signiant).

1.6 For users of Signiant Web Transfer API only. Licensee may install the Web Transfer API only on Licensee’s website solely to assist Users in transferring files to Licensee or other Users quickly and securely, and subject to any other restrictions or limitations specified in the Ordering Document. Licensee has no right to, and agrees not to, use or license the Web Transfer API with or to use the Product to create any products or services that competes with Signiant’s Media Shuttle Product or that exists solely for the purpose of providing a technology or service offering for the accelerated movement of files of any type or which does not provide incremental value to Licensee’s existing user experience, service offering, or application. Licensee has no right to repackage, divert, license, sublicense, rent, or resell the Web Transfer API to or for the benefit of any third party.

2. LICENSEE’S OBLIGATIONS

2.1 Licensee will indemnify and hold Signiant and its affiliates, directors, officers, employees and agents (including successors and assigns) harmless against any claim, suit, proceeding or other action arising out of or relating to (A) Licensee’s or a User’s failure to comply with its obligations under this Agreement or (B) a claim that the any materials or data that Licensee or a User transfers using the Product (“Licensee Content”) infringes any patent, copyright, or trade secret of any third party.

2.2 Licensee is responsible for maintaining and protecting all Licensee Content. Signiant will not be liable for any loss or corruption of Licensee Content, or for any costs or expenses associated with backing up or restoring any Licensee Content.

2.3 The Product is not intended for use by a User if it is under 13 years of age. By agreeing to this Agreement, Licensee is representing to Signiant that each User is over 13 years of age.

2.4 Licensee acknowledges that the Product may transmit Licensee Content to Licensee’s cloud storage provider. SIGNIANT WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR THE ACTIONS OR INACTIONS OF SUCH CLOUD STORAGE PROVIDOR, INCLUDING LOSS OR CORRUPTIONS OF LICENSEE CONTENT, OR FOR ANY COSTS OR EXPENSES ASSOCIATED WITH BACKING UP OR RESTORING ANY LICENSEE CONTENT.

3. STATISTICAL USAGE DATA; ACCESS OF USER INFORMATION

For users of Signiant Media Shuttle, Flight or Web Transfer API Products only.
3.1 Signiant collects statistical usage information from Licensee’s and the Users use of the Product. Licensee acknowledges and agrees that Signiant shall have the unrestricted right to use such data in an aggregate and anonymous manner, compile statistical and performance information related to the provision and operation of the Product and services, and make any such information publicly available, provided that such information does not identify Licensee or its Users, incorporate customer data, file-names or content transmitted by User(s). Signiant retains all intellectual property rights to such statistical information.

3.2 Licensee acknowledges consents and agrees that Signiant may access, and preserve the information provided by Licensee and each User during the registration process and any other information Licensee or a User provides to Signiant for the sole purpose of providing the Product and services to Licensee. Signiant may disclose such User information only if required to do so by law.

3.3 For users of Signiant’s Media Shuttle Product only. Licensee acknowledges and agrees that certain information it and its Users shares with Signiant (such as information Licensee provides during the registration process), including Licensee’s or a User’s name, company, location, and domain part of their email addresses, may be shared and viewed by other users of the Product solely as the result of a user to user interaction (i.e. file transfer) initiated by a Licensee User.

3.4 SIGNIANT IS NOT RESPONSIBLE FOR A USER’S MISUSE OR MISAPPROPRIATION OF ANY CONTENT OR INFORMATION LICENSEE OR A USER PROVIDES AS PART OF THE REGISTRATION PROCESS OR WHICH LICENSEE PROVIDES TO OTHER USERS.

3.5 Licensee should review Signiant’s Privacy Policy (posted on its website) before deciding to use the Product. Signiant’s Privacy Policy is hereby incorporated into this Agreement by reference, and governs Signiant’s treatment of any information, including personally identifiable information Licensee submit to Signiant.

3.6 For users of Signiant Flight and Cloud Backed Media Shuttle Product only. Licensee shall provide Signiant with Licensee’s cloud storage provider credentials which Signiant shall usefor the sole purpose of providing the Product and services to Licensee. Signiant represents that such credentials (i) shall not be retained by Signiant after the term of this Agreement and (ii) shall be kept confidential by Signiant.

4. SCOPE OF SERVICE

4.1 The scope of services, if any, to be performed by Signiant for each project will be mutually agreed upon in a Statement of Work, and each Statement of Work will contain: (a) a description of the services; (b) the estimated performance schedule, if available; and (c) a description of fees and payment schedule (each, a “Statement of Work”). If applicable, the Statement of Work may contain additional terms and conditions.

4.2 Certain services may include the preparation and delivery of specified deliverables. The definition of associated deliverables will be included in the definition of the services in the relevant Statement of Work. Unless otherwise specified in a Statement of Work, licenses to deliverables will be governed by Section 5.

4.3 Signiant will provide services under any Statement of Work in a professional and workmanlike manner.

5. OWNERSHIP; LICENSE TO THE WORK

5.1 Unless otherwise agreed to in a Statement of Work, any work, ideas, inventions, discoveries, processes and improvements, computer programs, software products, specifications, operating instructions, notes, and all other documentation created or conceived, alone or with others, in connection with services rendered hereunder to which Licensee is provided access to and/or use of under a Statement of Work (the “Work”) will remain the sole property of Signiant, and all intellectual property rights related thereto constitute trade secrets and Proprietary Information of Signiant (as that term is defined in Section 8) and any third party from whom Signiant has received marketing or sublicensing rights, and nothing in this Agreement will be construed to convey any title or ownership rights to Licensee. Signiant grants Licensee a non-exclusive limited license to use the Work for its internal use solely as set forth in a Statement of Work. In addition, notwithstanding section 5.2, (i) Signiant’s Proprietary Information and (ii) all materials, documents, information, enhancements, inventions and discoveries related to Signiant’s business processes, procedures, methodologies, software and other technologies, will be the sole and exclusive property of Signiant.

5.2 Licensee will retain ownership to any of Licensee’s data, programs, reports, and documentation provided by Licensee to Signiant in connection with this Agreement or any Statement of Work hereunder and any data (other than Signiant data) that is transmitted using the Product (the “Licensee Materials”).

6. ATTRIBUTION

For users of Signiant Web Transfer API Product only. Licensee shall prominently display the phrase Powered by Signiant Media Shuttle™ on its website, displayed either on Licensee’s home page or on a page on which the end-user interacts with Licensee’s application and initiates a file transfer. The font size shall be equivalent to that most commonly used on the relevant page or 12 point font, whichever is larger, and must be legible to the average viewer or reader.

7. PAYMENT

Unless specified otherwise in the Ordering Document, all fees and reimbursement of expenses (as provided below) are due and payable within thirty (30) days from the date of Signiant’s applicable invoice. All amounts are in U.S. Dollars. The fees identified on the Exhibits are exclusive of taxes or duties. Licensee agrees to pay (i) for reimbursement of reasonable out-of-pocket expenses incurred by Signiant in connection with providing services and (ii) any and all taxes and duties that may be imposed by any taxing authority in connection with the Agreement, excluding taxes based on Signiant’s income or franchise taxes. Past due amounts are subject to a late charge equal to the lesser of 1-1/2% per month or the maximum amount allowed by law.

8. CONFIDENTIALITY

8.1 Each party will use the same or greater efforts than it would use to safeguard its own Proprietary Information to protect the confidentiality or Proprietary Information of the other party. For purposes of this Agreement, “Proprietary Information” will include the Product and the Work (as Proprietary Information of Signiant) and any and all trade secrets or confidential or proprietary information designated as such orally or in writing by the disclosing party at the time of disclosure. Each party agrees to receive and hold in confidence and not disclose to third parties, except as explicitly allowed hereunder, the Proprietary Information of the other party. Each party may disclose Proprietary Information to employees and to consultants under contract with the receiving party, who need to know such information, provided all such employees and consultants are bound in writing by confidentiality terms no less restrictive than those of this Agreement. Neither party will allow the removal nor modification of any proprietary notice made part of any materials provided to it under this Agreement and must reproduce all proprietary rights notices on any copies of such materials. Signiant, with reasonable prior notice, will have the right to audit the usage of the Product and Work and Licensee’s compliance with this Agreement. Notwithstanding anything herein to the contrary, Licensee acknowledges and agrees that Signiant may use Licensee Proprietary Information in order to proactively test, diagnose or resolve errors with deliverables or software to which Licensee has provided access.

8.2 Each party agrees that any breach by it of Section may cause the other party substantial and irreparable harm and, therefore, in the event of any such breach, in addition to other remedies which may be available, the disclosing party will have the right to seek specific performance and other injunctive and equitable relief. The receiving party agrees to immediately notify the disclosing party of any such unauthorized disclosure or potential disclosure once the receiving party becomes aware of such disclosure or potential disclosure.

8.3 The confidentiality obligations of this section will not apply to information that (i) is or becomes part of the public domain through no act or omission of the receiving party, (ii) was in the receiving party’s lawful possession prior to the disclosure, (iii) is lawfully obtained from a third party without restriction on disclosure or (iv) is independently developed by the receiving party without use of the other party’s Proprietary Information.

9. TERM; TERMINATION; SUSPENSION

9.1 This Agreement may be terminated by either party upon written notice, provided the basis for such termination is a material failure by the other party to perform its obligations hereunder and such failure is not corrected within thirty (30) days from the date such notice is received. This Agreement may also be terminated for convenience by either party upon written notice if there is no Ordering Document in effect at the time of termination. Signiant will be entitled to payment with respect to fees earned and reimbursable expenses and any other termination related charges as set forth in an Exhibit incurred up to the effective date of the termination.

9.2 Unless the license granted is perpetual, Licensee may use the Product during the term specified in the separately executed License Order Schedule(s) or Purchase Order(s) entered into between Signiant and the Licensee for the Product (the “Ordering Document(s)”) which shall automatically renew for periods of one year thereafter (the term specified in the Ordering Document together with each renewal term, the “Term”), unless either party provides written notice of its intent to not renew the Term at least ninety (90) days’ prior to the completion of the then current term.

9.3 Upon termination, unless the Licensee has a perpetual license to use the Product, Licensee will promptly discontinue use of the Product and return all copies of the Product and related materials in its possession or control to Signiant or certify to their destruction.

9.4 For users of Signiant Flight Product only. In the event that Licensee fails to make payment to Signiant within fifteen (15) days following the applicable payment due date, Signiant reserves the right to suspend Licensee’s license to use the Product. Signiant will reinstate such license once payment is made in full for all amounts past due.

9.5 The provisions of Sections 1, 2, 3, 5, 8, 9.5, 11, 12, 13, 15 and 17 will survive expiration or termination.

10. SUPPORT

10.1 Provided Licensee is in compliance with this Agreement and the applicable Ordering Document, Licensee will be entitled to receive Upgrades and standard customer support during the applicable customer support term as specified on the applicable Ordering Document and in accordance with Signiant’s customer support practices. “Upgrades“ include releases, modifications, refinements and updates to, and new versions of, the Product provided to Signiant’s general client base at no additional charge, but does not include Product marketed by Signiant as a separate product or as a module for which additional fees are generally charged. Licensee may order additional support and other services under this Agreement.

10.2 For all Products except Signiant Media Shuttle, Flight and Web Transfer API. Licensee acknowledges and agrees that (i) failure to implement all corrections or Upgrades supplied by Signiant or (ii) any attempts by Licensee to alter any Product without Signiant’s written direction or consent, will be at Licensee’s sole risk and may render the Product unusable or nonconforming to the applicable Documentation. In no event will Signiant have any obligation to support or maintain any altered Product or any Product for which Upgrades have not been applied within a reasonable period of time after their release by Signiant. Signiant will not be responsible or liable for warranty or infringement claims, Product errors or any nonconformance with the applicable Documentation if such claims arise out of or are related to (i) any alteration made by Licensee; (ii) Licensee’s failure to implement any Upgrades within a reasonable period of time after their release by Signiant or (iii) the use or combination of the Product with other items not provided by Signiant.

11. LIMITED WARRANTY; DISCLAIMER OF WARRANTIES

If at any time within the period ending ninety (90) days from the start of the license term specified in the applicable Ordering Document, the Product delivered thereunder substantially fails to perform the functions described in the applicable Documentation, Licensee will promptly notify Signiant in writing of such alleged nonconformance. Signiant will, at its own cost and expense and within thirty (30) days of receipt of such written notification, correct such deficiency. Should Signiant fail to correct such deficiency, Licensee may, as its sole remedy, upon giving Signiant written notice within five (5) days of such failure, terminate the license to the affected Product, return such Product and receive a refund of all license fees paid by Licensee for such Product pursuant to the applicable Ordering Document during the 90-day warranty period and any ensuing period during which Signiant is attempting to address the deficiency. Signiant makes no warranty that any Product will operate uninterrupted or be error-free. EXCEPT FOR THE EXPRESS WARRANTY IN THIS SECTION, SIGNIANT MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

12. INDEMNIFICATION

12.1 Signiant shall indemnify, defend and hold Licensee harmless from any action brought against Licensee by a third party (a “Claim”) that is based on a claim that the Product, when used
within the scope of this Agreement, infringes or misappropriates a patent, copyright, trademark or trade secret. Should any Product become, or in Signiant’s opinion is likely to become, the subject of a claim of infringement, Signiant may at its option (i) procure for Licensee the right to continue using the Product, or (ii) replace or modify the Product to make it non-infringing, or (iii) terminate the license for the affected Product. Upon termination of the license, as Signiant’s sole liability and Licensee’s sole remedy, Signiant will refund to Licensee for any term license all pre-paid and unused fees for any term licenses or if the license purchased is a perpetual license, all license fees paid by Licensee for the terminated license less an amount equal to one sixtieth of such license fees for each month or portion thereof that has elapsed since the start of the license term of the applicable license. The foregoing states the entire liability of Signiant with respect to any claim of infringement.
12.2 Licensee will indemnify and hold Signiant and its affiliates, directors, officers, employees and agents (including successors and assigns) harmless against any claim, suit, proceeding or other action arising out of or relating to (i) Licensee’s or a User’s failure to comply with its obligations under this Agreement or (ii) a claim that the any materials or data that Licensee or a User transfers using the Product (“Licensee Content”) infringes any patent, copyright, or trade secret of any third party.

12.3 The indemnified party shall (i) promptly notify the indemnifying party in writing of any claim, suit or proceeding for which indemnity is claimed, provided that failure to so notify will not remove the indemnifying party’s obligation except to the extent it is prejudiced thereby, and (ii) allow the indemnifying party to solely control the defense of any claim, suit or proceeding and all negotiations for settlement. The indemnified party shall also provide the indemnifying party with reasonable cooperation and assistance in defending such claim (at the indemnifying party’s cost).

13. LIMITATION OF LIABILITY

IN NO EVENT WILL EITHER PARTY, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS (INCLUDING SUCCESSORS AND ASSIGNS) OR ANY LICENSOR BE LIABLE FOR ANY CONSEQUENTIAL DAMAGES OR FOR ANY OTHER INDIRECT DAMAGES SUCH AS, BUT NOT LIMITED TO, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.. NOTWITHSTANDING THE FORM IN WHICH ANY LEGAL OR EQUITABLE ACTION MAY BE BROUGHT, EXCEPT FOR ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 12 HEREIN OR BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8 HEREIN, NEITHER PARTY, ITS AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS (INCLUDING SUCCESSORS AND ASSIGNS) WILL BE LIABLE HEREUNDER FOR DAMAGES WHICH EXCEED THE AMOUNT OF THE FEES PAID BY LICENSEE IN THE PREVIOUS 12 MONTHS PURSUANT TO THE APPLICABLE EXHIBIT FOR THE SOFTWARE, SERVICES OR WORK WHICH GAVE RISE TO SUCH DAMAGES. NO ACTION OR CLAIM MAY BE INSTITUTED MORE THAN 12 MONTHS AFTER THE EVENT GIVING RISE TO SUCH CLAIM.

14. PRODUCT EVALUATION

Notwithstanding anything herein to the contrary, if the Product is provided to Licensee for evaluation purposes, the following terms and conditions in this Section 14 shall apply. Signiant grants to Licensee a nonexclusive, temporary, royalty-free, non-assignable license to use the Product solely for internal non-production evaluation. Such evaluation license shall terminate (i) on the end date of the pre-determined evaluation period, if an evaluation period is pre-determined in the Product or (ii) sixty (60) days from the date of Licensee’s initial installation of the Product, if no such evaluation period is pre-determined in the Product (“Evaluation Period”). The Product may not be transferred and is provided “AS IS” without warranty of any kind. Licensee is solely responsible for taking appropriate measures to back up Licensee’s system and take other measures to prevent any loss of files or data. The Product may contain an automatic disabling mechanism that prevents its use after expiration of the Evaluation Period. Upon expiration of the Evaluation Period, Licensee will cease use of the Product and destroy all copies of the Product. All other terms and conditions of this License Agreement shall otherwise apply to Licensee’s evaluation of the Product as permitted herein.

15. THIRD PARTY SOFTWARE

Licensee acknowledges that the Product may contain or be accompanied by certain third party software products (“Third-Party Products”). These Third Party Products, if any, are identified in, and subject to, special license notices, terms and/or conditions as set forth in the License Order Schedule, Purchase Order, the Third Party Product packaging and/or in the “notices.txt” file accompanying the Product (“Third-Party Notices”). The Third-Party Notices may include important licensing and warranty information and disclaimers. In the event of conflict between the Third-Party Notices and the other portions of this Agreement, the Third-Party Notices will take precedence (but solely with respect to the Third-Party Products to which the Third-Party Notices relate).

16. EXPORT REGULATION.

Licensee acknowledges that the Product and related technical data and services (collectively “Controlled Technology”) are subject to the import and export laws of the United States, specifically the U.S. Export Administration Regulations (EAR), and the laws of any country where Controlled Technology is imported or re-exported. Licensee agrees to comply with all relevant laws and will not to export any Controlled Technology in contravention to U.S. law nor to any prohibited country, entity, or person for which an export license or other governmental approval is required. All Signiant products, including the Controlled Technology are prohibited for export or re-export to Crimea Region of Ukraine, Cuba, North Korea, Iran, Syria and Sudan and to any country or region subject to relevant trade sanctions.

17. GENERAL

The relationship of Signiant to Licensee is that of an independent contractor and neither this Agreement, nor the services to be rendered hereunder will for any purpose whatsoever (i) create an employer-employee relationship between Signiant or its employees or subcontractors and Licensee, or (ii) make Signiant an agent of Licensee. In the event of a conflict between an Exhibit and this Agreement, the terms and conditions of this Agreement will govern. Neither party may assign, delegate, sublicense or otherwise transfer its rights or obligations under this Agreement without the other party’s prior written consent, except that no consent shall be required for an assignment of this Agreement by either party pursuant to a change of control or a merger or sale of substantially all of a party’s assets or outstanding stock. A waiver of any breach(es) will not constitute a waiver of any future breach(es) of a similar or different nature. If any provision of this Agreement is deemed illegal or unenforceable, that provision will be severed and the remainder of this Agreement will remain in full force and effect. The headings used in this Agreement are for convenience only and will not create any rights or obligations or affect the meaning or interpretation of this Agreement. This Agreement and all matters arising out of or relating to this Agreement will be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, U.S.A, excluding all choice of law provisions. The United Nations Convention on Contracts for International Sale of Goods is specifically excluded. All proceedings relating to or arising out of the subject matter hereof will be maintained exclusively in the courts situated in Boston, Massachusetts, U.S.A. and the parties hereby consent to personal jurisdiction and venue therein and hereby waive any right to object to personal jurisdiction or venue therein. This Agreement supersedes all other agreements, proposals, representations and other understandings regarding the Product and the Work, whether oral or written. The terms and conditions of any purchase order or other instrument issued by Licensee or its agent in connection with this Agreement that are in addition to or inconsistent with the terms and conditions of this Agreement are null and void and will not be binding on Signiant. Any notice, approval, request, authorization, direction or other communication under this Agreement shall be given in writing and shall be deemed to have been delivered and given for all purposes (i) on the delivery date if delivered personally to the party to whom the same is directed; (ii) one (1) business day after deposit with a nationally recognized overnight carrier, with written verification of receipt, or (iii) five (5) business days after the mailing date whether or not actually received, if sent by U.S. certified mail, return receipt requested, postage and charges pre-paid or any other means of rapid mail delivery for which a receipt is available, to the address of the party set forth at the beginning of this Agreement. Either party may change its address by giving written notice of such change to the other party. Alterations or modifications of this Agreement will be valid only if made in a writing signed by both parties authorized signatories. Except as otherwise provided herein, if the performance of any obligation hereunder (other than the making of payments hereunder) is prevented, restricted or interfered with by reason of any event, act or condition beyond the reasonable control of the affected party, the party so affected, upon written notice to the other party, will be excused from such performance to the extent of such prevention, restriction or interference. Signiant and Licensee hereby acknowledge and agree that any provisions of any state law adopting exactly or in modified form the Uniform Computer Information Transactions Act (“UCITA”) will not be applicable to this Agreement. Furthermore, both Signiant and Licensee waive any and all rights arising from any such law.

This Agreement may be executed in counterparts and delivered by facsimile, each of which when so executed and delivered (including delivery by facsimile) shall be deemed an original, and all of which together shall constitute one and the same agreement.