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ELECTRONIC LICENSE TERMS AND CONDITIONS ("ELTC")

This License Terms and Conditions sets forth the terms and conditions under which SaaSOptics will provide its application, materials and services (collectively the "Services"). "You" or "Your" as used in this Agreement refers to you, or your company, firm or entity, your affiliates, and their respective officers, directors, shareholders, and employees on whose behalf this Agreement is entered into.

GRANT OF LICENSE
SaaSOptics hereby grants You a limited, non-exclusive, non-transferable, right to use the Services, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to You are reserved by SaaSOptics and its licensors. The foregoing license shall immediately terminate upon termination of this Agreement for any reason.

COPYRIGHT
Title and copyrights in and to the Services, including any images, "applets," photographs, animations, video, audio, music, and text incorporated into or a part of the Services, and all accompanying printed and electronic materials, together with any copies You are permitted to make hereby, are owned by or licensed to SaaSOptics and are protected by United States copyright laws and international treaty provisions. You are permitted to make copies of the printed training materials accompanying the Services solely for use as reference guides for authorized users using the Services in an authorized manner. All such copies shall contain the copyright and other notices of SaaSOptics. All other copying of the printed materials accompanying the Services is prohibited without express written permission from SaaSOptics.

YOUR USE OF THE SERVICES
You agree not to use the Services (a) for any illegal purpose, (b) for unauthorized access or distribution of any software, data, or material protected by copyright, patent, or trade secret, or (c) to post or transmit any hateful, vulgar, threatening, libelous, abusive, harassing, defamatory, racially, ethnically, or otherwise unlawful or tortious material, including material harmful to children.

You acknowledge and understand that You are solely responsible for the use of and the results obtained from the Services. You understand that it is Your sole responsibility to understand and comply with any and all applicable laws regarding Your use of the Services and all use of the Services in Your place or places of business, regardless of country or jurisdiction. You agree to abide by any and all local, country, and international export rules and regulations, laws and treaties governing Your use of the Services, including but not limited to those related to data privacy, international communications and the transmission of technical or personal data.

You agree to use the Services in conjunction with the operation of your business, and such operation may include use by related third party partners, vendors and clients with whom you collaborate in Your normal course of business and to whom you may grant access to Your Account. You shall not (a) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any unrelated third party or competitor of SaaSOptics the Services in any way; (b) modify or make derivative works based upon the Services; (c) "frame" or "mirror" the Services on any other server or wireless or Internet-based device; or (d) reverse engineer or access the Services in order to (i) build or offer a competitive product or service, (ii) build or offer a product or service using similar ideas, features, functions or graphics of the Services, or (iii) copy any ideas, features, functions or graphics of the Services.

You shall not: (a) intentionally interfere with or disrupt the integrity or performance of the Services; or (b) attempt to gain unauthorized access to the Services, (c) intentionally send or store software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs intended to interfere with the Services or other users of the Services.

WARRANTY
SaaSOptics represents and warrants that:

(a) it has the right, power and authority to enter into this Agreement, grant the rights and licenses granted herein and fully perform its obligations hereunder;

(b) the making and performance of this Agreement by SaaSOptics does not and shall not violate any separate agreement, right or obligation existing between SaaSOptics and any third party;

(c) the Services and the use thereof do not infringe any intellectual property right of any third party anywhere in the world and no third party and, other than SaaSOptics' licensors, has any proprietary interest in or to the Services;

(d) the Services do not contain a malicious or disabling code that is intended to damage, destroy or destructively alter software, hardware, systems or data; and

(e) the Services have been created using, and will maintain during the Term of this Agreement, at least an industry-recognized level of security given the state of technology available for such Services and SaaSOptics will use commercially reasonable practices to ensure the security and protection of your content, data, and files.

EXCEPT AS SET FORTH ABOVE, THE SERVICES AND ANY OTHER PRODUCTS WHICH SAASOPTICS PROVIDES TO YOU AS PART OF THE SERVICES ARE PROVIDED "AS IS." NEITHER SAASOPTICS NOR ITS LICENSORS MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, TITLE, QUALITY, OR FITNESS FOR A PARTICULAR PURPOSE AND SAASOPTICS AND ITS LICENSORS HEREBY DISCLAIM THE SAME. YOU EXPRESSLY ASSUME ALL RISK FOR USE OF THE SERVICES.

SaaSOptics shall indemnify and hold You harmless from any and all legal damages awarded by a court of competent jurisdiction against You as a result of the court's finding that the Services delivered under this Agreement infringe a United States patent, copyright or other intellectual property right of a third party, and any and all expenses and costs (including legal fees and associated court costs) reasonably incurred by You in connection with any such infringement claim. The foregoing indemnity obligation is conditioned on the following: You promptly notify SaaSOptics in writing of such claims when known; and You providing to SaaSOptics all available information, assistance and authority to defend the claim.

If the Services or any part thereof becomes the subject of a valid claim of infringement under any patent, copyright or trade secret law, as Your sole and exclusive right and remedy, SaaSOptics shall endeavor to either procure the right, at SaaSOptics' sole expense, to permit Your continued use of the Services, or replace or modify the Services so as to avoid infringement without materially altering the functionality and performance thereof. If SaaSOptics reasonably and in good faith determines that either of the foregoing is not commercially practicable, SaaSOptics may terminate this Agreement and the licenses granted herein effective immediately upon written notice to You and shall refund a pro rata portion of any prepaid amounts. SaaSOptics agrees to notify You immediately of any claims asserted against SaaSOptics the outcome or resolution of which may affect the rights granted to You pursuant to this Agreement.

LIMITATION OF LIABILITY
Please Read this Section Carefully. It contains Disclaimers of Warranties and Limitations of Liability, made on behalf of SaaSOptics and its Licensors.

IN NO EVENT WILL EITHER PARTY BE LIABLE FOR: (A) DIRECT, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOST BUSINESS REVENUE, OR FAILURE TO REALIZE EXPECTED SAVINGS, OR (B) ANY CLAIMS BY ANY OTHER PARTY, IN EACH CASE IRRESPECTIVE OF THE CAUSE OF ACTION UNDERLYING SUCH CLAIM, INCLUDING, BUT NOT LIMITED TO: (I) BREACH OF CONTRACT, EVEN IF IN THE NATURE OF A BREACH OF CONDITION OR A FUNDAMENTAL TERM OR A FUNDAMENTAL BREACH, OR (II) TORT INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR MISREPRESENTATION.

IN NO EVENT SHALL SAASOPTICS' LIABILITY, AND THE LIABILITY OF ITS LICENSORS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE EXCEED THE AMOUNT OF FEES YOU PAY TO SAASOPTICS IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY.

In no event is SaaSOptics' liable for any damage to or loss or destruction (a) of any of Your content, files, or data which may result from Your use of the Services or any damage; (b) arising from Your failure to perform in connection with this Agreement; or (c) arising from misuse of Your User Names or IDs. All limitations and disclaimers stated in this Agreement also apply to SaaSOptics' licensors as intended beneficiaries of this Agreement. Any rights or limits stated herein are the maximum for which SaaSOptics and its licensors are collectively responsible.

FORCE MAJEURE
Neither party shall be under any liability to the other for any delay in performing any obligation under this Agreement to the extent caused by reason of circumstances beyond the reasonable control of that party and without such party's fault or negligence, which shall include but not be limited to acts of God, war, strikes, lack or failure of transportation facilities, acts of terrorism, fire, acts of government authority. In the event of a force majeure event, the affected party shall give prompt written notice to the other party, stating the period of time the same is expected to continue. If any such failure or delay in performance continues for more than sixty (60) days, either party may terminate this Agreement upon written notice to the other.

YOUR INFORMATION
SaaSOptics provides only storage and delivery Services and it is not the publisher of Your information stored or transmitted within the Services. Because SaaSOptics does not review, censor or monitor and is not in any manner responsible for any content You store or send through the Services, to the extent such content includes, without limitation, infringing, abusive, profane, hateful, libelous, unlawful, or offensive material, all content from parties accessed via the Services, accessed by You and those You have authorized, shall be all at Your own risk. You acknowledge hereby and retain all right, title and interest (including, where appropriate, copyright and other proprietary or intellectual property rights) in the content, information and files You store through use of the Services, and SaaSOptics explicitly disclaims any ownership of, or right, title and interest in the content, information and files You store through use of the Services. SaaSOptics assumes no liability whatsoever for any claims, losses, actions, damages, suits or proceedings arising out of or otherwise relating to such content accessed using the Services. Information You store in the Services is considered Your Confidential information.

SaaSOptics shall use reasonable commercial efforts to ensure as part of the Services, but cannot guarantee that any content, data, or files stored or sent to or by You using the Services will be transmitted in uncorrupted form without viruses or other damaging or destructive attributes or within a reasonable period of time. SaaSOptics shall use reasonable commercial efforts to ensure as part of the Services, but cannot guarantee that any content, data, or files You store in or transmit through the Services will not be subject to unauthorized access by others or that others will not gain access to the Services.

SaaSOptics performs regular system-wide back up procedures for the Services. However, You understand the inherent risk in electronic storage and agree to rely solely on Your own back up copies of all files, data, content, and documents stored in or transmitted through the Services should those files, data, and documents stored in or transmitted through the Services become lost or damaged. During Your Services term, as well as after Your Services term expires, SaaSOptics shall have no responsibility to recover or retrieve Your data, documents, and files stored and transmitted by You as part of Your use of the Services, unless such recovery or retrieval results from an event or occurrence that requires a system-wide restoration, and the determination of such and event or occurrence along with the recovery and retrieval actions and process shall be determined solely and exclusively by SaaSOptics.

CONFIDENTIALITY
You and SaaSOptics may disclose information to one another, and You may save information in connection with the Services, which is considered by the disclosing party to be proprietary or confidential information (the "Confidential Information"). Confidential Information is defined as any information or data, in any form, including, but not limited to oral, written, graphic or electromagnetic forms, models or samples, which the disclosing party identifies as confidential or which is of such a nature that the receiving party should reasonably understand that the disclosing party desires to protect such information or data against unrestricted disclosure or use, including without limitation, business information, financial data and marketing data. All Confidential Information shall remain the sole property of the disclosing party and its confidentiality shall be maintained and protected by the receiving party with the highest degree of care during the term of this Agreement and for a period of three years following the expiration or termination of this Agreement. The receiving party shall not use the Confidential Information of the other party except as necessary to fulfill its obligations under this Agreement, nor shall it disclose such Confidential Information to any third party without the prior written consent of the disclosing party. The restrictions on the use or disclosure of any Confidential Information shall not apply to any Confidential Information: (i) after it has become generally available to the public without breach of this Agreement by the receiving party; (ii) is rightfully in the receiving party's possession prior to disclosure to it by the disclosing party; (iii) is independently developed by the receiving party; (iv) is rightfully received by the receiving party from a third party without a duty of confidentiality; or (v) is disclosed under operation of law. Further, in the event such disclosure is required of either party under judicial order or requirement of law, such party will promptly notify the disclosing party of such order or requirement.

You understand that SaaSOptics implementation and support personnel may need to access Your Account to assist You in Your implementation, as well as to address support requests that may occur from time to time, but such access shall be on a need to know basis. You permit SaaSOptics implementation and support personnel to access Your Account with the understanding that all information in Your Account shall be considered Confidential Information by SaaSOptics personnel. SaaSOptics agrees to hold in confidence and not reproduce, distribute, infringe on, transmit, or transfer, directly or indirectly, in any form, by any means, the Confidential Information.

INDEMNIFICATION
You shall indemnify SaaSOptics and SaaSOptics' officers, directors, employees and agents (each a "SaaSOptics Indemnitee") against any and all claims, actions, losses, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees and disbursements incurred by an Indemnitee in any action between such SaaSOptics Indemnitee arising out of or in connection with Your use of the Services, including, without limitation, Your use of the Services in conjunction with any material or content that You store or transmit that: (a) infringes any third party's intellectual property or publicity/privacy rights; (b) violates any law or regulation; (c) is defamatory, libelous, unlawfully threatening or unlawfully harassing; (d) is obscene, harmful to minors or child pornographic; (e) contains any viruses, trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage or detrimentally interfere with the Services or data contained within the Services; or, (f) is materially false, inaccurate or misleading.

SaaSOptics agrees to indemnify and hold You and Your officers, directors, employees and agents (each "Your Indemnitee") harmless from and against any and all third party claims, actions, losses, damages, liabilities, costs and expenses (including, without limitation, reasonable attorneys' fees and disbursements incurred by Your Indemnitee in any action between Your Indemnitee and any third party arising out of or in connection with the breach of any of SaaSOptics' representations or warranties set forth in this Agreement.

The indemnification obligations set forth herein are contingent upon the following conditions: (i) SaaSOptics or You, as the case may be (the "Indemnified Party") must promptly notify the other party (the "Indemnifying Party") in writing of the third party claim or action (however, failure of the Indemnified Party to so promptly notify the Indemnifying Party will not relieve the Indemnifying Party of its indemnification obligations hereunder, except to the extent it has been damaged thereby); (ii) the Indemnified Party will reasonably cooperate with the Indemnifying Party in the defense of the matter; and (iii) the Indemnifying Party will have primary control of the defense of the action and negotiations for its settlement and compromise; provided, however, that the Indemnified Party may, at its own cost, obtain separate counsel to represent its interests.

PERFORMANCE
SaaSOptics will make commercially reasonable efforts to assure that the Services will be available seven (7) days a week. You understand that normal maintenance and backup procedures will cause temporary down time during which the Services cannot be used. Other than such scheduled downtime, SaaSOptics will make commercially reasonable efforts to make the Services available 99.6% of the time. It is possible that there will be interruptions of Services during non-scheduled maintenance. SaaSOptics will make commercially reasonable efforts to address errors and omissions in the Services, and to ensure the Service is performing in a manner materially in keeping with the documentation. Your access to the Services is through the Internet, and you understand that your ability to use the Services is dependent on the global telecommunications infrastructure involving the reliability and performance. Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications. SaaSOptics is not responsible for any delays, delivery failures, or other damage resulting from such problems.

SERVICES UPGRADES, ENHANCEMENTS, AND BRANDING
You understand that SaaSOptics makes regular and sometimes substantial changes and improvements to the Services and that communication with Your users about planned changes may be necessary to ensure Your efficient use of the Services. You understand and agree that from time to time, and solely at its discretion, SaaSOptics may communicate directly with users in Your account using electronic and other means. Such communication shall be restricted to content relating to planned and actual product changes and enhancements, product education, product feedback and suggestions, system availability, and other content relevant important to the productive use of the Services. Under no circumstances will user information, including emails, be shared with third parties.

NO AGENCY
You and SaaSOptics are independent contractors, and no agency, partnership, joint venture, employee-employer or franchisee-franchisor relationship is intended or created by this Agreement.

NOTICES
Except as explicitly stated otherwise, any notice to SaaSOptics shall be given in writing to Legal Counsel at SaaSOptics:

Kilpatrick Townsend LLP
Attention: David Stockton
Suite 2800
1100 Peachtree Street
Atlanta, GA 30309-4530
404 815 6500

Any notice to You will be given to the address You provide to SaaSOptics during the registration and provisioning process. Either party may update its address by proper notice to the other party in the same manner as provided herein. Notice shall be deemed given twenty-four (24) hours after the notice is sent, unless the method of communication is email and the sending party is notified that the electronic mail address is invalid. Alternatively, Either party may give notice by certified mail, postage prepaid and return receipt requested, to the address provided to the other party during the registration and provisioning process. In such case, notice shall be deemed given three (3) days after the date of mailing.

TERMINATION
This Agreement shall commence on the Effective Date and shall continue forever unless earlier terminated as provided herein. Either party may, at its option, terminate this Agreement in the event of a material breach of this Agreement by the other party. Any such termination may be affected only through a written notice to the other party, specifically identifying the breach or breaches on which termination is based. Following receipt of such notice, the party in breach shall have thirty (30) days to cure such breach or breaches, and this Agreement shall terminate in the event that such breach is not cured by the end of such period.

GOVERNING LAW AND ARBITRATION
Any and all disputes arising out of or in connection with the negotiation, execution, interpretation, performance or nonperformance of this Agreement shall be solely and finally settled by arbitration, which shall be conducted in Georgia, U.S.A. by a single arbitrator appointed by the American Arbitration Association. The parties hereby renounce all recourse to litigation and agree that the award of the arbitrator shall be final and subject to no judicial review. The arbitration shall be conducted pursuant to the Commercial Arbitration Rules of the American Arbitration Association, as now or hereafter amended. All substantive questions of law shall be determined under the laws of the State of Georgia, U.S.A. (without regard to the principles of conflicts of laws of such state).

SEVERABILITY
This Agreement, together with the Order Form Agreement, if any, comprises the entire agreement between You and SaaSOptics with respect to the subject matter hereof and supersedes all prior agreements between the parties regarding the subject matter of this Agreement. If one or more of the paragraphs in this Agreement are found to be unenforceable or invalid, the remaining paragraphs shall remain in effect.

ASSIGNMENT
This Agreement may not be assigned by a party without the prior written consent of the other party unless such assignment is to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of You that results or would result in a direct competitor of SaaSOptics directly or indirectly owning or controlling 50% or more of You shall entitle SaaSOptics to terminate this Agreement for cause immediately upon written notice.

AUTHORITY
If this Agreement is being accepted by any individual for You, then You represent, warrant and attest that such individual has the authority to execute this Agreement on Your behalf.

Last Update February 20, 2014

 
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