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Verba Technologies, LLC (“Company”) is providing you a license to the associated software and related printed or electronic documentation subject to the terms of this Software License Agreement (the “Agreement”). 

 IMPORTANT – PLEASE READ CAREFULLY

THIS IS A LEGAL AGREEMENT BETWEEN YOU (AS AN INDIVIDUAL OR AS THE AUTHORIZED REPRESENTATIVE OF THE ENTITY ENTERING INTO THIS AGREEMENT WITH COMPANY (SUCH ENTITY, THE “LICENSEE”)) AND COMPANY FOR THE SOFTWARE, WHICH INCLUDES COMPUTER SOFTWARE AND RELATED DOCUMENTATION.  BY CLICKING ON THE "I AGREE" BUTTON BELOW AND CHECKING THE BOX STATING “I ACCEPT THE TERMS IN THIS LICENSE AGREEMENT”, OR DOWNLOADING OR INSTALLING THE SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY THIS AGREEMENT, INCLUDING ALL TERMS INCORPORATED BY REFERENCE, AND YOU REPRESENT AND WARRANT THAT YOU: (I) HAVE READ THIS AGREEMENT AND UNDERSTAND IT; AND, (II) ARE AUTHORIZED TO ENTER INTO THIS AGREEMENT.  THIS AGREEMENT sIS ENFORCEABLE AGAINST ANY PERSON OR ENTITY THAT USES THE SOFTWARE AND ANY PERSON OR ENTITY THAT USES THE SOFTWARE ON ANOTHER PERSON’S OR ENTITY’S BEHALF.  IF YOU DO NOT AGREE TO THESE TERMS, OR YOU ARE NOT AUTHORIZED TO BIND LICENSEE TO THE TERMS OF THIS AGREEMENT, THEN COMPANY IS UNWILLING TO GRANT LICENSEE THIS LICENSE AND YOU SHOULD CLICK ON THE "I DO NOT ACCEPT THE AGREEMENT" BUTTON, IN WHICH CASE: (1) IF YOU RECEIVED THIS SOFTWARE ON CD-ROM, PROMPTLY RETURN THE UNUSED SOFTWARE TO THE PLACE FROM WHICH YOU OBTAINED IT; OR (2) IF YOU RECEIVED THIS SOFTWARE VIA DOWNLOAD FROM AN INTERNET WEBSITE, THEN YOU MUST DELETE ALL OF THE DOWNLOADED FILES AND YOU MAY OBTAIN A REFUND IN ACCORDANCE WITH COMPANY’S REFUND POLICY.

1.     DEFINITIONS

1.1 “Authorized Systems” means computer systems owned, operated or under the supervision and control of Licensee.

1.2 Authorized User” means any individual employee, agent or contractor of Licensee accessing or using the Software solely on behalf and for the benefit of Licensee and, in the case of a Service Provider, any individual employee, agent or contractor of a Service Provider Customer accessing or using the Software solely on behalf and for such Service Provider Customer.

1.3 Confidential Information” means any technical or business information, ideas, materials, know-how or other subject matter that is disclosed by one party to the other party that is identified as “confidential” or “proprietary” at the time of disclosure; or under the circumstances of disclosure or the nature of the information, a person exercising reasonable business judgment would understand to be confidential or proprietary.  Without limiting the generality of the foregoing, the Software and the Documentation shall be considered Company’s Confidential Information.

1.4 Documentation” means Company’s standard user manuals and/or related documentation generally made available to licensees of the Software.

1.5 Effective Date” means the date Licensee installs or first uses the Software, whichever first occurs.

1.6 Intellectual Property Rights” means all copyrights, trade secrets, patents, patent applications, moral rights, contract rights, and other proprietary rights, but specifically excluding any trademark or service rights.

1.7 Order Form” means a purchase order sent to Company from Licensee or a Reseller, specifying the Company products and services ordered.

1.8 Service Provider” means a Licensee who is using the multi-tenanted edition of the Software and operates the Software on behalf of one or more customers (each, a “Service Provider Customer”).

1.9 Software” means the executable, object code version of Company’s proprietary application software associated with this Agreement.

1.10  “Software Error” means any material nonconformity of the Software with the Documentation.

2.     LICENSE AND USAGE OF SOFTWARE.

2.1 License Grant.  Subject to the terms and conditions of this Agreement (including the payment of all applicable fees), Company hereby grants to Licensee a non-exclusive, non-transferable, non-sublicenseable right and license during the Term: (i) to install and operate one (1) copy of the Software on one (1) Authorized System (or more, only as may be expressly authorized by Company in writing),  solely in accordance with applicable Documentation provided by Company, solely for use by Authorized Users; and (ii) to make a limited number of copies of the Software for back-up purposes.  Licensee may physically transfer the Software from one Authorized System to another provided that the Software is used on no more than one Authorized System at a time.  Licensee is required to pay the applicable license fee for each Authorized System upon which the Software will be utilized.

2.2 Documentation License.  Subject to the terms and conditions of this Agreement, Company hereby grants to Licensee the non-exclusive, non-transferable, non-sublicenseable right and license during the Term to translate and make copies of the Documentation provided by Company, solely for use by Authorized Users in connection with the exercise of rights granted in Section 2.1.  In the event Licensee translates the Documentation, Licensee shall provide Company with a copy of such translated Documentation.  Licensee acknowledges and agrees that all right, title and interest in and to such translated Documentation shall be exclusively owned by Company, subject to Licensee’s right to distribute the translated Documentation to its Authorized Users solely in connection with the rights granted in Section 2.1.

2.3 Authorized Users.  Licensee acknowledges and agrees that it shall be responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User which, if undertaken by Licensee, would constitute a breach of this Agreement, shall be deemed a breach of this Agreement by Licensee.  Licensee shall undertake reasonable efforts to make all Authorized Users aware of the provisions of this Agreement as applicable to such Authorized User’s use of the Software, and shall cause Authorized Users to comply with such provisions.

2.4 Delivery of Licensee Copies.  As soon as commercially practicable after the Effective Date, Company shall deliver to Licensee one (1) copy of each of the Software and the Documentation for use by Licensee in exercising its rights under the licenses granted in Sections 2.1 and 2.2, provided that any use of the Software shall at all times remain subject to the limitations and restrictions set forth in Section 2.1(ii) (if applicable) and Section 2.7.  The Software will be delivered electronically.  Delivery shall be deemed complete upon receipt by Licensee of media upon which the Software and Documentation are digitally stored (if made available in that manner) or upon Licensee’s download of the Software.  Unless otherwise agreed between the parties in a separate written agreement, Company shall have no obligation to install or configure the Software for or on behalf of Licensee.

2.5 Ownership of Software. Subject to the rights granted in Sections 2.1 and 2.2, Company retains all right, title and interest in and to the Software, the Documentation and associated Intellectual Property Rights, and Licensee acknowledges that it neither owns nor acquires any rights in any of the foregoing not expressly granted by this Agreement.  Licensee further acknowledges that Company retains the right to use the Software for any purpose in Company’s sole discretion, and Company reserves all rights not expressly granted in this Agreement.

2.6 General Usage Restrictions.

(a)  Licensee will not use the Software or Documentation for any purposes beyond the scope of the licenses granted in this Agreement. 

(b)  Without limiting the generality of the foregoing, Licensee will not (i) authorize or permit access to the Software or Documentation to persons other than Authorized Users; (ii) market or distribute the Software and/or the Documentation; (iii) assign, sublicense, sell, lease or otherwise transfer or convey, or pledge as security or otherwise encumber, Licensee’s rights under the licenses granted in Sections 2.1 and 2.2; (iv) except in the case of a Service Provider, use the Software in any time-sharing or service bureau arrangement, including, without limitation, any use to provide services or process data for the benefit of, or on behalf of, any third party; (v) modify the Software or Documentation, except with the prior written consent of Company; (vi) combine or integrate the Software with hardware, software or technology not provided to Licensee by Company hereunder; or (vii) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any component of the Software is compiled or interpreted, and Licensee hereby acknowledges and agrees that nothing in this Agreement, or any amendment, addendum, or other agreement entered into with respect to the Software, shall be construed to grant Licensee any right to obtain or use such source code.  

(c) Certain Licensees may have entered into a separate agreement with Company allowing for the resale of licenses of the Software (a “Reseller Agreement” and the Licensee who has entered into the Reseller Agreement shall be referred to as a “Reseller”).   To the extent a Reseller is provided Software on a “not for resale basis,” then, in addition to the other restrictions in this Agreement, Reseller’s use of the Software shall be restricted: (i) for non-commercial purposes only (e.g., may not be used to generate any direct revenue from the use or provision of access to the Software); (ii) only for purposes of testing, in-house training of Reseller’s employees and demonstration use; and (iii) may not be resold or provided to any third party for any purpose.   If Reseller desires to use the Software for its own internal use, it must separately purchase a license to use the Software.

(d) Licensee shall undertake all measures necessary to ensure that its use of the Software and the Documentation complies in all respects with any contractual or other legally binding obligations of Company to any third party, provided that Company has notified Licensee with respect to any such obligations.   

(e) Licensee shall undertake all measures necessary to ensure that its use of the Software and the Documentation complies in all respects with all applicable laws, statutes, regulations, ordinances or other rules promulgated by governing authorities having jurisdiction over the parties, the Software or the Documentation, including, without limitation, by means of obtaining any permits, licenses and/or approvals required with respect to export regulations promulgated by the Bureau of Export Administration or any other agency or department of the federal government of the United States of America.  Licensee acknowledges that Company makes no representation or warranty that the Software may be exported without appropriate licenses or permits under applicable law, or that any such license or permit has been, will be or can be obtained.

(f)  Licensee shall duplicate all proprietary notices and legends of Company and its suppliers or licensors upon any and all copies of the Software and Documentation made by Licensee. Licensee shall not remove, alter or obscure any such proprietary notice or legend.

2.7 User Content.  “User Content” means any and all content that Licensee or any of its users uploads, distributes, or otherwise provides to or through the Software, including any sensitive or personally identifiable information.  Licensee is solely responsible for all User Content and assumes all risks associated with Licensee’s use of the User Content, including but not limited to, any reliance on its accuracy, completeness, or usefulness by others, or any disclosure of the User Content that makes Licensee or any third party personally identifiable.  Licensee agrees to collect any and all such User Content in compliance with all applicable laws.  Licensee is responsible for accessing, using and/or disclosing User Content that also constitutes Protected Health Information as defined by the Health Information Portability and Accountability Act of 1996 (“HIPAA”) in a manner that complies with HIPAA.  Licensee may not state or imply that the User Content is in any way provided, sponsored, or endorsed by Company.  Company is not obligated to back up any User Content and User Content may be deleted at any time and from time to time.  Licensee is solely responsible for creating backup copies of the User Content, as may be desired.  In the event Licensee has a trial version of the Software, Licensee agrees to delete all User Content from the Software at the end of the trial period.

2.8 Compliance Records; Auditing Rights

(a)  Licensee shall create and maintain complete and accurate records of all copies of the Software and/or Documentation made by or on behalf of Licensee, including the date such copies are made and the locations of Authorized Systems where such copies are installed.  Licensee shall promptly provide a copy of such records upon request by Company.

(b)  Throughout the Term of this Agreement, Company will have the right, at its own expense, upon reasonable prior notice, periodically to inspect and audit Licensee’s use of the Software and Documentation for purposes of determining Licensee’s compliance with the terms and conditions herein.  Licensee agrees to cooperate with Company in the performance of any such audit, and shall provide to Company such access to Licensee’s relevant records, data, information, personnel and/or facilities as Company may reasonably request for such limited purposes.

2.9 Data. When installed, the Software may, from time to time, automatically report back information to Company’s servers related to usage of the Software, without notice to you (“Usage Data”), unless you opt out of such collection of Usage Data. To the extent that any Usage Data is collected by Company, such Usage Data will be solely owned by Company and may be used by Company for any lawful purpose, provided that the Company Data is used only in an anonymized and aggregated form and in a manner that does not permit the identification of any Authorized User or other individual. Usage Data may be used by Company in compliance with all applicable laws, including helping diagnose and resolve technical and performance issues in relation to the Software. By using the Software, until you opt out of any such collection, you hereby agree to such collection, transmission, and use of data in accordance with Company’s data collection policy and agree to obtain all necessary consents from any Authorized User for such contemplated usage.  For details regarding Company’s data collection policies and related opt-out procedures, please visit https://kb.verba.com/display/home/Telemetry+Information.

2.10 Support. Company shall provide technical support and maintenance for the Software in accordance with any applicable Order Forms and the terms of the Software Maintenance Policy, available at https://kb.verba.com/display/home/Software+Maintenance+Policy, as may be amended from time to time.

3.     FEES AND PAYMENTS.

3.1 Fees.  In consideration for the licenses granted to Licensee hereunder, Licensee shall pay to Company or its authorized Reseller, without offset or deduction, certain fees established by Company and as set forth on one or more Order Forms executed by Company and Licensee or one of Company’s authorized resellers (“Reseller”) and Licensee, which fees shall be due and payable within thirty (30) calendar days after an invoice is issued by Company with respect thereto.

3.2 Taxes.  All amounts payable hereunder shall exclude all applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges.  Licensee will be responsible for payment of all such taxes (other than taxes based on Company’s income), fees, duties and charges, and any related penalties and interest, arising from the payment of any fees hereunder, the grant of license rights hereunder, or the delivery of related services.  Licensee will make all payments required hereunder to Company free and clear of, and without reduction for, any withholding taxes.  Any such taxes imposed on any payments hereunder to Company will be Licensee’s sole responsibility, and Licensee will, upon Company’s request, provide Company with official receipts issued by the appropriate taxing authority, or such other evidence as Company may reasonably request, to establish that such taxes have been paid.

3.3 Late Payments; Interest.  Any portion of any fee or other amount payable hereunder that is not paid when due will accrue interest at one percent (1%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid.

3.4 Auditing Rights and Required Records. Licensee agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two (2) years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder.  Company will have the right, at its own expense, upon reasonable prior notice, periodically to inspect and audit the records of Licensee with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Licensee has underpaid Company with respect to any amounts due and payable during the period to which such inspection and audit relate, Licensee shall promptly pay such amounts as are necessary to rectify such underpayment, together with interest in accordance with Section 3.3, and further provided that if the amount of such underpayment equals or exceeds ten percent (10%) of the total amounts due and payable by Licensee during such period, Licensee shall reimburse Company for the cost of such inspection and audit.  Such inspection and auditing rights shall extend throughout the Term and for a period of two (2) years after the termination of this Agreement.

4.     CONFIDENTIALITY RIGHTS AND OBLIGATIONS.

4.1 Ownership of Confidential Information.  The parties acknowledge that during the performance of this Agreement, each party will have access to certain of the other party’s Confidential Information or Confidential Information of third parties that the disclosing party is required to maintain as confidential.  Both parties agree that all items of Confidential Information are proprietary to the disclosing party or such third party, as applicable, and shall remain the sole property of the disclosing party or such third party.

4.2 Mutual Confidentiality Obligations.  Each party agrees as follows: (i) to use the Confidential Information only for the purposes described herein; (ii) that such party will not reproduce the Confidential Information and will hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party; (iii) that neither party will create any derivative work from Confidential Information disclosed to such party by the other party; (iv) to restrict access to the Confidential Information to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (v) to return or destroy, pursuant to Section 9.3, all Confidential Information of the other party in its possession upon termination or expiration of this Agreement.

4.3 Confidentiality Exceptions.  Notwithstanding the foregoing, the provisions of Sections 6.1 and 6.2 shall not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; or (vi) is approved for release or disclosure by the disclosing party without restriction.  Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given notice to the other party and made a reasonable effort to obtain a protective order; or (y) to establish a party’s rights under this Agreement, including to make such court filings as it may be required to do.

5.     WARRANTIES; DISCLAIMERS.

5.1 Representations and Warranties.  Each party hereby represents and warrants (i) that it is duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; and (ii) that 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.  Further, Company warrants that the Software, when used as permitted under this Agreement and in accordance with the instructions in the Documentation, will operate substantially as described in the Documentation. 

5.2 Disclaimer.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 5.1, COMPANY DISCLAIMS ANY AND ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR QUIET ENJOYMENT, AND THE SOFTWARE AND SUPPORT SERVICES ARE PROVIDED “AS IS”.  NO WARRANTY IS MADE BY COMPANY ON THE BASIS OF TRADE USAGE, COURSE OF DEALING OR COURSE OF TRADE.  COMPANY DOES NOT WARRANT THAT THE SOFTWARE OR SUPPORT SERVICES WILL MEET LICENSEE’S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.  LICENSEE ACKNOWLEDGES THAT COMPANY’S OBLIGATIONS UNDER THIS AGREEMENT ARE FOR THE BENEFIT OF LICENSEE ONLY.

5.3 Specific Disclaimers.  Without limiting the foregoing, Company expressly disclaims and in no way makes any representation or warranty that: (1) the performance of the Software and/or the or results that may be obtained by using the Software are or will be appropriate for Licensee’s purposes or error-free; or (2) the Software is or will be compliant with HIPAA or any other local or other medical privacy regulations, including in the United States or any other jurisdiction.

5.4 Exclusions of Remedies; Limitation of Liability.  IN NO EVENT SHALL COMPANY BE LIABLE TO LICENSEE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THIS LIMITATION UPON DAMAGES AND CLAIMS IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.  THE CUMULATIVE LIABILITY OF COMPANY TO LICENSEE FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES THEN-PAID TO COMPANY BY LICENSEE UNDER SECTION 5.1 DURING THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT, ACT OR OMISSION GIVING RISE TO SUCH LIABILITY.  FROM TIME TO TIME, COMPANY MAY, BUT IS NOT OBLIGATED TO, NOTIFY LICENSEE OF CERTAIN CRITICAL ISSUES ARISING IN CONNECTION WITH THE SOFTWARE. PROVIDED THAT COMPANY NOTIFIES LICENSEE OF ANY CRITICAL ISSUE VIA EMAIL OR PUBLICATION ON HTTPS://RELEASES.VERBA.COM, COMPANY SHALL NOT BE LIABLE FOR SUCH CRITICAL ISSUE TO THE EXTENT LICENSEE DID NOT COMPLY WITH COMPANY’S INSTRUCTIONS RELATING TO THE CORRECTION OF SUCH CRITICAL ISSUE, AS COMMUNICATED BY COMPANY THROUGH EMAIL OR HTTPS://RELEASES.VERBA.COM.  THE LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.

5.5 Essential Basis.  The parties acknowledge and agree that the disclaimers, exclusions and limitations of liability set forth in this Section 7 form an essential basis of this Agreement, and that, absent any of such disclaimers, exclusions or limitations of liability, the terms of this Agreement, including, without limitation, the economic terms, would be substantially different.

6.     INDEMNIFICATION.

6.1 Indemnification of Licensee.  Company agrees to indemnify, defend and hold harmless Licensee from and against any claim by any third party, and any and all losses, liabilities, costs (including reasonable attorneys’ fees) or damages awarded to such third party resulting from a claim that the Software infringes or misappropriates, as applicable, such third party’s patent rights issued as of the Effective Date, or such third party’s copyrights or trade secret rights under applicable laws of any jurisdiction, provided that, notwithstanding the foregoing, Company shall have no obligation to indemnify Licensee hereunder if the alleged infringement arises, in whole or in part, due to modification of the Software by Licensee, on Licensee’s behalf, or upon Licensee’s request or direction, or if such alleged infringement arises, in whole or in part, due to combination or integration of the Software with hardware, software and/or technology not supplied by Company hereunder, if such infringement would have been avoided by use of the Software absent such combination or integration.  If any claim for which indemnity is or may be sought hereunder is made or appears reasonably possible, Licensee agrees (i) promptly to notify Company in writing; (ii) to cooperate with Company, and to allow Company sole authority to control the defense and settlement of such claim; and (iii) to permit Company, at Company’s sole discretion, to enable Licensee to continue to use the Software, or to modify or replace any such infringing material to make it non-infringing, provided that, if Company determines that none of the foregoing alternatives is reasonably available, Licensee shall, upon written request from Company, cease use of, and, if applicable, return, such materials as are the subject of the relevant infringement claim.

6.2 Indemnification of Company.  Licensee agrees to indemnify, hold harmless and, at Company’s option, defend Company from and against any losses, liabilities, costs (including reasonable attorneys’ fees) or damages resulting from (i) Licensee’s negligence or willful misconduct; and (ii) a breach by Licensee of  Section 2.7, provided that Company shall have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.

7.     TERM AND TERMINATION.

7.1 Term.  The term of this Agreement shall commence on the Effective Date and shall continue until the expiration of all Order Forms, as stated therein, unless terminated pursuant to this Section 7 (the “Term”).

7.2 Termination.  Either party may terminate this Agreement in the event of a material breach by the other party, including in the event a  Reseller who sells the Software to Licensee fails to pay Company required Fees under any Purchase Order.  Such termination may be effected only through a written notice to the breaching party, specifically identifying the breach or breaches on which such notice of termination is based.  The breaching party will have a right to cure such breach or breaches within thirty (30) days of receipt of such notice, and this Agreement shall terminate in the event that such cure is not made within such thirty (30)-day period.  Company may immediately terminate this Agreement upon written notice in the event that Licensee becomes insolvent or enters bankruptcy prior to payment of all amounts due under Section 5.1.

7.3 Suspension or Termination for Non-Payment.  Company reserves the right to restrict or suspend access to the Software, including any User Content, and/or terminate the license granted hereunder at any time without notification for Licensee’s or Reseller’s failure to pay the applicable fees to Company within sixty (60) calendar days of when such fees became due.

7.4 Effect of Termination.  Upon any termination of this Agreement, Licensee (i) shall immediately discontinue all use of the Software and Documentation, as well as any use of Company’s Confidential Information; (ii) shall delete any Company Confidential Information from Licensee’s computer storage or any other media, including, but not limited to, online and off-line libraries; (iii) shall return to Company or, at Company’s option, destroy, all copies of Company’s Confidential Information then in Licensee’s possession; and (iv) shall promptly pay to Company all amounts due and remaining payable hereunder.

7.5 Survival.  The provisions of Sections 2.6, 2.7, 2.8, 5.4, 7.4, 7.5, and 8.10 will survive the termination of this Agreement.

8.     GENERAL PROVISIONS.

8.1 Entire Agreement.  This Agreement sets forth the entire agreement and understanding between the parties hereto with respect to the subject matter hereof and, except as specifically provided herein, supersedes and merges all prior oral and written agreements, discussions and understandings between the parties with respect to the subject matter hereof, and neither of the parties shall be bound by any conditions, inducements or representations other than as expressly provided for herein. The original of this Agreement is in the English language, and such version shall be the governing and controlling version of the Agreement.

8.2 Independent Contractors.  In making and performing this Agreement, Licensee and Company act and shall act at all times as independent contractors, and, except as expressly set forth herein, nothing contained in this Agreement shall be construed or implied to create an agency, partnership or employer and employee relationship between them.  Except as expressly set forth herein, at no time shall either party make commitments or incur any charges or expenses for, or in the name of, the other party.

8.3 Notices.  All notices required by or relating to this Agreement shall be in writing and shall be sent by means of certified mail, postage prepaid, to the parties to the Agreement and addressed, if to Licensee, as set forth on Licensee’s account, or if to Company, as follows: Verba Technologies, Inc. 448 W Kytle Street, Suite B, Cleveland, Georgia 30528, or addressed to such other address as that party may have given by written notice in accordance with this provision.  All notices required by or relating to this Agreement may also be communicated by PDF scanned copy, attached to an e-mail, sent to Licensee at the e-mail address set forth on the applicable Order Form(s) or as set forth on Licensee’s account, or to Company at legal@verba.com, provided that the sender receives and retains a confirmation email sent from recipient confirming successful electronic delivery to the recipient.  Such notices shall be effective on the date indicated in such confirmation.  In the event that either party delivers any notice hereunder by means of facsimile transmission in accordance with the preceding sentence, such party will promptly thereafter send a duplicate of such notice in writing by means of certified mail, postage prepaid, to the receiving party, addressed as set forth above or to such other address as the receiving party may have previously substituted by written notice to the sender.

8.4 Amendments; Modifications.  This Agreement may not be amended or modified except in a writing duly executed by the party against whom enforcement of such amendment or modification is sought.

8.5 Assignment; Delegation.  Licensee shall not assign any of its rights or delegate any of its duties hereunder without the prior written consent of the Company, and, absent such consent, any attempted assignment or delegation shall be null, void and of no effect.

8.6 No Third Party Beneficiaries.  The parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the parties, their successors and permitted assigns.  Nothing herein, whether express or implied, shall confer upon any person or entity, other than the parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.

8.7 Severability.  If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision shall be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability.  The invalidity or unenforceability of one or more of the provisions contained in this Agreement shall not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.

8.8 Waiver.  No waiver under this Agreement shall be valid or binding unless set forth in writing and duly executed by the party against whom enforcement of such waiver is sought.  Any such waiver shall constitute a waiver only with respect to the specific matter described therein and shall in no way impair the rights of the party granting such waiver in any other respect or at any other time.  Any delay or forbearance by either party in exercising any right hereunder shall not be deemed a waiver of that right.

8.9 Force Majeure.  Except with respect to payment obligations under this Agreement, if a party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such party’s reasonable control, including, by way of example, war, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, such failure or delay shall not be deemed to constitute a material breach of this Agreement, but such obligation shall remain in full force and effect, and shall be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such party is prevented or delayed from performing for more than ninety (90) days, the other party may terminate this Agreement upon thirty (30) days’ written notice.

8.10 Governing Law.  THIS AGREEMENT SHALL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF OR TO THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS.  FOR PURPOSES OF ALL CLAIMS BROUGHT UNDER THIS AGREEMENT, EACH OF THE PARTIES HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF THE STATE AND FEDERAL COURTS LOCATED WITHIN THE STATE OF NEW YORK.

8.11 U.S. Government End-Users.  Each of the components that constitute the Software and Documentation is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212.  Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Software with only those rights set forth herein. Without limiting the foregoing, if the Software is licensed for use by the Department of Defense, the Software is licensed subject to the terms of this Agreement and either (i) in accordance with DFARS 227.7202-1(a) and 227.7202-3(a), or (ii) with restricted rights in accordance with DFARS 252.227-7013(c) (Nov. 1995), as applicable. If the Software is licensed for use by a Federal agency other than the Department of Defense, the Software is restricted computer software delivered subject to the terms of this Agreement and (i) FAR 12.212; (ii) FAR 52.227-19; or (iii) FAR 52.227-14, as applicable.

8.12 Counterparts.  This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one Agreement.

8.13 Headings.  The headings in this Agreement are inserted merely for the purpose of convenience and shall not affect the meaning or interpretation of this Agreement.

 

[END OF END USER LICENSE AGREEMENT]

 

 

This AGREEMENT shall be governed by and construed in accordance with New Jersey Law and you submit to the non-exclusive jurisdiction of the US Courts in the State of New Jersey.

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