Terms of Service

Last Updated: December 19, 2018

Please carefully read these terms and conditions of use and service (the “Terms of Service”) of Khameleon Software, LLC (the “Vendor”) as set forth below. THESE TERMS OF SERVICE MAY HAVE CHANGED SINCE YOUR LAST VISIT TO THIS PAGE (THE “SITE”). Please be sure to always check the “Last Updated” date hereinabove.

These Terms of Service, which include Order Forms, Statements of Work (as each is hereafter defined) schedules, exhibits, and addendums referred to or incorporated herein (collectively, the “Terms”), create an agreement between the company, organization, legal entity or legal person listed on the Order Form or Statement of Work (the “Customer”) and Khameleon Software, LLC (the “Vendor”) regarding the Customer’s access to and use of any Software, Third Party Products, Documentation or the Services (as each is hereafter defined). 

1. DEFINITIONS. While other terms are specifically defined throughout the body of these Terms, as used herein, the following terms shall have the following meanings:

1.1. “Acceptance Date” shall mean for Customization only, the earlier of: (a) the successful completion of the acceptance tests set forth in the applicable Acceptance Test Specifications; (b) the day on which the Customer first begins using the Software either in test mode or live operation, other than in performing an Acceptance Test; or (c) the date specified in the applicable Order Form or Statement or Work, unless such Software is subject to retesting pursuant to these Terms.

1.2. “Acceptance Test” shall mean a test conducted by the Vendor to determine whether the Customization satisfies the Acceptance Test Specification.

1.3. “Acceptance Test Specification” shall mean written criteria, activities and procedures with respect to Customization developed by the Vendor and approved by the Customer as to a Customer’s needs, requirements and business processes.

1.4. “Additional Support Services” shall mean certain types of support and other services provided to the Customer by the Vendor that are not covered by Maintenance.

1.5. “Conversion Programming” shall mean certain Programming Services provided by the Vendor to convert certain Customer Data into a form that is usable by the Software, as set forth in an applicable Order Form or Statement of Work.

1.6. “Cloud Hosting” shall mean the providing of Software, Third Party Products, Documentation and/or the Services in a hosted, virtualized environment, accessible via the internet, as set forth in an applicable Order Form or Statement of Work.

1.7. “Customer” shall have the meaning set forth in the preamble to these Terms of Service, but shall also include any outsourced or other third-party consultants or similar personnel supporting Customer as part of its typical business practices, acting under Customer’s direction and for whom Customer is fully responsible hereunder.

1.8. “Customer Data” means all visual, written or audible communications, documents, data, files (including without limitation hypertext markup language files), graphics, scripts, programs, videos, recordings, applets, servlets or other material that Customer creates, installs, displays, posts, stores, exchanges, transmits, or uploads to or transfers in or through the Customer’s use of the Software or Third Party Products or the Customer otherwise provides in the course of using the Services.

1.9. “Customization” shall mean software customizations, modifications or reports of the Software, as made or performed by the Vendor, that are unique to the Customer to fit the specific needs of the Customer, pursuant to an applicable Order Form or Statement of Work.

1.10. “Customization Support” shall mean support and other services required to the Customer’s Customization so that such Customization shall properly interface with updates to the standard version of the Software, as set forth in an applicable Order Form or Statement of Work.

1.11. “Diagnosis Services” shall mean diagnosis of issues or problems related to the Software where a Software enhancement or change was developed by the Customer.

1.12. “Documentation” shall mean the most current version of all Vendor provided written materials relating to the operation and use of the Software including, but not limited to, user manuals, installation manuals, user guides, technical manuals, release notes, literature and online help files regarding use of the Software, and any other materials prepared in connection with any Software modification, correction, or enhancement, and shall include any updated versions of such written materials as may be provided by Vendor from time to time (1) in the course of providing the Services; (2) as part of an online tutorials or help files provided with the Services; or (3) in the course of providing web seminars in which Customer or Customer’s Users enroll.

1.13. “Electronic Communications” shall mean any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically to or from the Software, Third Party Products or the Services.

1.14. “Error(s)” shall mean the failure of the Software to operate in substantial conformity to the applicable Documentation provided by the Vendor to the Customer for such Software.

1.15. “Infrastructure Support Services” shall mean the support provided by the Vendor for the maintenance and stability of the hosting environment provided as part of the Services, as set forth in an applicable Order Form or Statement of Work.

1.16. “Maintenance” shall mean, as set forth in an applicable Order Form or Statement of Work: (i) telephonic or electronic mail support provided by the Vendor to the Customer to remediate, correct, or abate an Error in the Software licensed by the Vendor to the Customer, as reported by the Customer to the Vendor, but does not include any Customization Support, and (ii) delivery of all standard updates, where applicable, to the Software that the Vendor makes generally available without charge to its other customers that have ordered Maintenance from the Vendor during the Subscription Term, but does not include updates to unique Customer module or to a Customer’s Customization.

1.17. “Order Form(s)” refers to a Customer order, in either electronic or written form, issued by the Customer to express the Customer’s agreement to purchase or rent from the Vendor a license for the Software, Third Party Products, Documentation and/or the Services.

1.18. “Programming Services” shall mean designing, programming, or testing of Software modifications or enhancements of the Software, as well as system tuning, configuration and/or reconfiguration.

1.19. “Professional Services” shall mean any one or more of the following: (i) training, software installation, planning, scheduling, consulting, communicating, coordinating, issue resolving, implementation services, (ii) Additional Support Services, (iii) Conversion Programming, (iv) Customization Support, (v) Infrastructure Support Services, (vi) Validation Services, (vii) Retrieval Services, (viii) Programming Services, (ix) Diagnosis Services, and/or (x) any other services provided by the Vendor to the Customer. Professional Services, however, do not include Maintenance or Cloud Hosting.

1.20. “Service(s)” shall mean all Vendor provided services ordered by the Customer from the Vendor pursuant to one or more Order Forms and/or Statements of Work including without limitation, as applicable, (i) any of the Professional Services, (ii) Maintenance, and/or (iii) Cloud Hosting.

1.21. “Retrieval Services” shall mean the retrieval or repair of data lost by the Customer’s hardware or system malfunction, power failure or operator error.

1.22. “Software” means the Vendor proprietary software applications, programs and user interfaces and provided or to be provided by the Vendor to the Customer as set forth in an Order Form or Statement of Work and, provided the Customer orders and pays for Maintenance, any subsequent corrections, updates, versions or enhancements to such applications, programs and user interfaces which the Vendor may furnish to the Customer during the Subscription Term of these Terms. The term "Software" (i) shall also include any modified or derived versions of the Software created by the Customer or any third party on the Customer's behalf, provided such versions were created with the Vendor’s prior written approval and in accordance with these Terms, and (ii) may contain third-party components licensed to Vendor.

1.23. “Statement(s) of Work” shall mean a Customer Order, in either electronic or written form, issued by the Customer to express the Customer’s agreement to purchase from the Vendor any one or more of the Services.

1.24. “Third Party Products” means application software products provided by Third Party Vendors, including without limitation operating system and application software with which the Software interfaces and which provides certain functionality essential to the operation of the Software. Third Party Products are licensed to Vendor for incorporation and use in the hosted environment as part of the Services. For the sake of clarity, the term Third-Party Products does not refer to third-party software components, if any, incorporated into the Software.

1.25. “Third Party Vendors” shall mean any third party manufacturer, author, developer, vendor, and/or service provider that provides the Third Party Products to the Vendor for use by the Vendor’s Customers.

1.26. “User(s)” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Software, Third Party Products, Documentation and/or the Services and who have been supplied user identifications and passwords by the Customer or on the Customer’s behalf.

1.27. “Validation Services” shall mean services provided by the Vendor to review the Customer Data after Conversion Programming occurs in order to determine the correctness and validity of the conversion process, including comparing data samples and reports.

2. ORDERS. From time to time, the Customer may submit to the Vendor an order to rent or purchase a license for the Software, as well as for any Third Party Products, Documentation and/or the Services on an Order Form or Statement of Work, and the terms and conditions of such Order Form or Statement of Work are and shall be incorporated into these Terms by reference. An Order Form, Statement of Work and these Terms shall be deemed to be accepted by the Customer by (i) the Customer signing and/or submitting an Order Form or Statement of Work to the Vendor, (ii) the Customer registering for an account to access or use the Software, or (iii) the Customer otherwise accessing or using the Software (as applicable, the “Order Effective Date”). The providing of Software, Third Party Products, Documentation, and/or the Services by the Vendor, are contingent upon, among other things, the Customer completing all tasks and activities required as a prerequisite for the providing of the Software, Third Party Products, Documentation, and the Services by the Vendor, as specified from time to time by the Vendor. Example of these types of activities include, but are not limited to, validation activities, document approval, data migration, User training, and the like. Failure of the Customer to perform all reasonable tasks required by the Vendor may require the payment of additional fees by the Customer.

3. TERM / RENEWAL.

3.1. Subscription Term. Unless otherwise terminated in accordance with the terms and provisions hereinafter provided, these Terms shall begin to apply on the Order Effective Date and shall cease one entire calendar year thereafter (the “Initial Subscription Term”). At the end of the Initial Subscription Term, these Terms shall automatically renew for successive one-year periods, year after year (each a “Renewal Subscription Term”, and together with the Initial Subscription Term, the “Subscription Term”).

3.2. Termination. At any time, either party may notify the other in writing of its intent to terminate these Terms. Any such intent to terminate shall be effective on the day that is sixty (60) days after receipt of such intent to terminate, and notwithstanding the intent to terminate, the Customer shall pay for the Software, Third Party Products, Documentation and the Services until the end of said sixty (60) day period. The Customer agrees that, upon any termination of these Terms for any reason whatsoever, the Vendor will immediately discontinue providing the Services to the Customer, including without limitation any Cloud Hosting for the Customer to run the Software, and: (a) if the Customer has purchased a license for Software, Third Party Products and/or Documentation from the Vendor, then the Customer shall immediately discontinue the use of all of the such Software, Third Party Products, Documentation and the Services, or (b) if the Customer is renting the license for Software from the Vendor, then the Customer shall immediately (i) remove the Vendor’s Software, Third Party Products and Documentation from all of the Customer’s systems, including without limitation any Customization, (ii) return the Software, Third Party Products and Documentation (and all portions and copies thereof) to the Vendor or its Third Party Vendors, and (iii) discontinue the use of the Software, Third Party Products, Documentation and the Services, including any Customization. 

4. LICENSES GRANTED BY VENDOR.

4.1. Limited License. Subject to these Terms, the Vendor grants to the Customer during the Subscription Term a personal, limited, non-exclusive, non-transferable and non-assignable right to permit Users to (i) access and use the Software, Third Party Products and the Services, (ii) use the Documentation solely in connection with the Software, Third Party Products and the Services, and (iii) display and print Customer Data, all solely for Customer’s own internal business operations, provided such internal business operations shall not include commercial time-sharing, rental, outsourcing, service bureau or similar use. Notwithstanding anything contained herein to the contrary, an order for the purchase of Software, Third Party Products and/or Documentation requires the Customer to order and pay for Maintenance from the Company during the Initial Subscription Term and all Renewal Subscription Terms, and if such Maintenance is thereafter discontinued or terminated for any reason whatsoever, then such discontinuation or termination shall be deemed to be an intent to terminate (as descried in Section 3.2 hereinabove), and the Customer’s license for the purchased Software, Third Party Products and/or Documentation shall be terminated after the expiration of the time period set forth in Section 3.2, and the Customer shall be required to continue paying for such Maintenance until the time period set forth in Section 3.2 has expired.

4.2. Ownership of Software. The Software, Third Party Products, Documentation and the Services shall at all times remain the sole and absolute property of Vendor and the Third Party Vendors, as applicable. The unauthorized use, resale or commercial exploitation of any part of the Software, Third Party Products, Documentation or the Services in any way is expressly prohibited. The Customer does not acquire any rights in the Software, Third Party Products, Documentation or the Services, express or implied, other than those expressly granted in these Terms, and all rights not expressly or explicitly granted to Customer in these Terms are reserved by Vendor and Third Party Vendors, as applicable. The Customer acknowledges and agrees that the Vendor or its Third Party Vendors shall own all right, title and interest in and to all intellectual property rights in the Software, Third Party Products, Documentation and the Services, as well as any and all suggestions, enhancement requests, feedback, or recommendations provided by Customer or its Users relating to the Software, Third Party Products, Documentation, or the Services, including without limitation all unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, know-how and other trade secret rights, and all other intellectual property rights, derivatives or improvements thereof. These Terms are not a sale document and do not convey any rights of ownership in or related to the Software, Third Party Products, Documentation, or the Services to the Customer.

4.3. Users. The Customer acknowledges and agrees that the license granted, for the items listed in an Order Form or Statement of Work, is not a concurrent user license and that the rights granted to the Customer in these Terms are subject to all of the agreements and restrictions set forth herein.

4.3.1. Authorized Users. The maximum number of Users that the Customer is authorized to permit to access and/or use the Software, Third Party Products, Documentation and the Services shall not exceed the number of Users for which the Vendor has provided authorization to the Customer, as set forth in an applicable Order Form or Statement of Work. A right to access and/or use the Software, Third Party Products, Documentation and the Services cannot be shared or used by more than one individual User (whether concurrently or at separate times), but a right to access and/or use may be reassigned from time to time to new Users who are replacing former Users that are no longer permitted to access and use the Software, Third Party Products, Documentation and the Services. The Customer shall not license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make the Software, Third Party Product, Documentation or the Services available to any third party other than an authorized User.

4.3.2. Designation of Users. The Customer shall designate up to the number of Users that corresponds to the number of authorized Users set forth on the Order Form or Statement of Work. The Customer will provide and assign unique password and user names to each authorized User. The Customer acknowledges and agrees that the Customer is prohibited from sharing passwords and or User names with unauthorized users. The Customer agrees to notify the Vendor if the Customer becomes aware of any loss or theft or unauthorized use of any of the Customer’s passwords, User names, or account number.

4.3.3. Additional Users. If, at any time during the Subscription Term, the Vendor determines that the total number of actual Users exceeds the number of permitted Users, the Customer shall be required to promptly pay, upon issuance of written notification from the Vendor, for each additional User that has accessed and/or used the Software, Third Party Products, Documentation or the Services. Thereafter, the Customer shall continue to pay for the increased number of Users, as determined by the Vendor in its sole and absolute discretion, and the Customer agrees to immediately execute an amendment to said Order Form or Statement of Work to include such additional Users to reflect the actual number of Users with access to and/or use of the Software, Third Party Products, Documentation or the Services.

4.3.4. Robots or ‘Bots. The use of robots, ‘bots, or other automated access or use of the Software, Third Party Products, Documentation or the Services is strictly prohibited. To the extent the Vendor determines, in its sole and absolute discretion, that the Customer has used or accessed the Software, Third Party Products, Documentation or the Services through the employment, engagement, use or utilization of robots, ‘bots, or some other form of automation, then the Customer shall immediately pay for access and use of the Software, Third Party Products, Documentation and the Services based upon the total number of employees, contractors, or agents of the Customer, as determined by the Vendor in its sole and absolute discretion, and thereafter shall continue to pay for access and use of the Software, Third Party Products, Documentation, and the Services based upon the total number of employees, contractors, and agents of the Customer, as determined by the Vendor in its sole and absolute discretion.

4.3.5. Right to Audit. At any time, the Vendor has the right but not the obligation to audit, in a reasonable fashion, the Customer’s usage of the Software, Third Party Products, Documentation and the Services to determine Customer’s compliance with these Terms. In addition, the Vendor shall have the right to view internal program code and other relevant data and/or code to monitor the number of Users accessing and using the Software, Third Party Products, Documentation and the Services, and provide locking methods to insure the Customer is not allowing access to or use of the Software, Third Party Products, Documentation and/or the Services by unauthorized persons or automation beyond those specifically permitted herein.

4.4. Equipment for Use. Unless, otherwise being provided by the Vendor pursuant to an Order Form or Statement of Work, the Customer shall be responsible for obtaining and maintaining any and all equipment and ancillary services needed to connect to, access or otherwise use the Software, Third Party Products, Documentation and the Services, including, without limitation, modems, hardware, servers, operating systems, networking, web servers and the like (collectively, the “Equipment”).

4.5. Protection and Security. The Customer shall also be responsible for maintaining the security of the Equipment, the Customer account, passwords (including but not limited to administrative and User passwords), Customer Data and files, and for all uses of the Customer account and/or the Equipment with or without Customer’s knowledge or consent. For purposes of these Terms, the Customer agrees to the following provisions concerning the protection and the security of the Software, Third Party Products, Documentation and the Services:

4.5.1. Copies. Except as expressly and specifically set forth herein, no part of the Software, Third Party Products, Documentation or the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means. Notwithstanding the foregoing, the Customer may make copies of the Software for back-up purposes only. The Customer agrees to include on such copy the same notices or legends of copyright, trade secrets, or proprietary rights, that appear on or in the materials Customer receives from the Vendor. Except as expressly and specifically set forth in these Terms, no employee, contractor or agent of the Customer, or other person, shall be permitted to copy or retain the Software, Third Party Products, Documentation or the Services, or any portion thereof, for any purpose whatsoever, and no employee, contractor or agent of the Customer shall be permitted to retain the Software, Third Party Product, Documentation or the Services, or any portion thereof, after the termination of said person’s employment or engagement by the Customer.

4.5.2. Manipulation of Software. At no time, whether during the Subscription Term or thereafter, shall the source code for the Software, Third Party Products, or any of the Services be disclosed to the Customer. Furthermore, the Customer shall not, directly or indirectly, (a) reverse engineer, decompile, disassemble, reduce to human readable form or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Software, Third Part Products, any of the Services, or any documentation or data related thereto; (b) modify, enhance, supplement, adapt, translate, manipulate or create derivative works based on the Software, Third Party Products or any of the Services (except to the extent expressly permitted by Vendor in writing); (c) use the Software, Third Party Products or any of the Services for timesharing or service bureau purposes or otherwise for the benefit of a third person or party; (d) remove any proprietary notices or labels, (e) create internet "links" to the Software, Third Party Products or any of the Services, or (f) "frame" or "mirror" any part of the Software, Third Party Products or any of the Services, including any content contained in the Software, Third Party Products or any of the Services, on any other server or device.

4.5.3. Additional Protections. The Customer agrees not to assign, license, sub-license or otherwise transfer the Software, Third Party Products, Documentation or the Services, by operation of law or otherwise, in whole or in part, directly or indirectly. Customer also agrees to take all appropriate action by instruction, agreement, or otherwise with its employees and contractors to satisfy its obligations under these Terms with respect to limitation of use, and ensuring the continued confidentiality and trade secret status of the Software, Third Party Products, Documentation and the Services. The Customer shall notify the Vendor in writing of any person or entity obtaining unauthorized knowledge about or making unauthorized use of the Software, Third Party Products, Documentation or the Services, as soon as the Customer learns of such occurrence. From time to time, the Vendor may inquire concerning the Customer’s compliance with its obligations under these Terms and may require Customer to take any additional reasonable protective measures.

4.6. Modifications to Software, Third Party Products, Documentation. The Vendor may, in the Vendor’s sole and absolute discretion, update, enhance or otherwise modify the Software, Documentation and/or any of the Services (and the Third Party Vendors may update, enhance or otherwise modify the Third Party Products) from time to time, and the Vendor will provide you with reasonable notice of any material modifications: (i) at the email address the Customer provides in its Order Form or Statement of Work; (ii) by posting a notice to on the Vendor’s website; or (iii) by posting a notice in the Software. Such updates, enhancements or modifications may affect the use, effectiveness and/or viability of the Software, Third Party Products, Documentation and/or the Services, including without limitation any Customization. Notwithstanding the foregoing, the Vendor may at any time update, enhance, modify or discontinue features of the Software, Documentation or the Services, in its sole and absolute discretion, and a Third Party Vendor may update, enhance, modify or discontinue features to the Third Party Products, as well. The Vendor shall not be liable to the Customer or to any third party for any update, enhancement, modification or discontinuation of the Software, Third Party Products, Documentation, or the Services whatsoever.

5. SERVICES.

5.1. Providing of the Services. The Vendor may provide the Customer with the Services as set forth in an Order Form and/or Statement of Work. An Order Form or Statement of Work may be required for each type of the Services to be provided, and may specify, among other things, the purpose and scope of the type of Services to be provided, the responsibilities of each party, assumptions, deliverables (if any), applicable fees and payment terms, Acceptance Test Specifications and procedures (if any) and any other specific requirements. In some instances, the Vendor may not commence providing the Services to the Customer unless a Statement of Work has been agreed to in writing by the Customer and the Vendor. The Vendor may provide the Services remotely or at the Customer’s designated location, in the sole and absolute discretion of the Vendor.

5.2. Order Forms / Statement of Works. Each Order Form and/or Statement of Work shall specify the Services to be performed by the Vendor for the Customer, as applicable. Unless otherwise specifically set forth in an Order Form or Statement of Work, the Services shall be performed and/or provided by the Vendor and billed to the Customer based upon the amount time expended by the Vendor in addition to all of the Vendor’s costs associated with performing or providing such Services including without limitation all out-of-pocket expenses incurred by the Vendor.

5.3. Staffing by the Parties. The Customer acknowledges that the assistance and cooperation of the Customer's personnel is essential to the satisfactory providing of the Services (including without limitation the Maintenance, if applicable) by the Vendor. Each party shall designate a member of its staff as contract coordinator, responsible for all administrative matters relating to these Terms. In addition, for each Order Form or Statement of Work, each party shall designate a member of its staff as project manager who shall have the authority to represent such party on all technical and staffing matters relating to the Services set forth on an Order Form or Statement of Work. Where required under an Order Form or Statement of Work, each of the parties will provide appropriate office accommodations, equipment and support to members of the other party’s staff. All members of both parties’ staff participating in the provision of particular Services will possess the appropriate skills, authority and experience for the tasks assigned to them, and will be available at such times as are agreed by the parties. When members of one party’s staff are working on the premises of the other party, they will comply with such rules and regulations as are notified to them for the conduct of staff on those premises. The Vendor may, from time to time, provide to Customer a progress report indicating matters needing greater attention from the Customer. The Customer agrees to act promptly on any such progress report.

5.4. Information from Customer. The Customer shall promptly provide the Vendor with all information concerning its Customer Data, operations and activities which may be reasonably required by the Vendor for the performance of the Vendor’s obligations under an Order Form or Statement of Work, and upon prior notice, the Vendor shall have access to the Customer’s staff and premises at reasonable times in order to discharge the Vendor’s obligations under such Order Form or Statement of Work.

5.5. Change Requests. Either party may request additions, deletions or amendments to the original Order Form and/or Statement of Work in a subsequent change request (a “Change”) at any time before the Vendor completes its obligations under such original Order Form or Statement of Work. A Change shall be requested in writing signed by an authorized representative of the party requesting the Change (each a “Change Request”). Each party shall have the right to reject the requested Change but will not exercise that right unreasonably.

5.5.1. Study to be Conducted. If the Vendor reasonably considers it necessary to conduct a study in order to evaluate a Change Request, then the Vendor will notify the Customer, estimating the cost and any change to the work schedule to be incurred by the Vendor as a result of conducting such study. The Vendor will not conduct any such study without the Customer’s written agreement.

5.5.2. Written Change Orders. When the parties agree to make a Change to a Statement of Work, the details of the Change shall be specified and confirmed in writing in a change order document amending the applicable Order Form or Statement of Work (the “Change Order”). The Vendor shall not be obliged to implement the Change until the Change, and any revision to the price, timing of work, and/or delivery dates, have been agreed to in writing in a Change Order. The Vendor Shall not have an obligation to perform Services related to any Change unless the Customer and the Vendor have agreed to the Change in a written Change Order.

5.5.3. Required Change Order. Notwithstanding anything else contained in these Terms or in any Order Form or Statement of Work, if the Customer fails or delays in fulfilling any Customer obligation which is a prerequisite of any of the Vendor’s obligations set forth in any Order Form or Statement of Work, in the Vendor’s sole and absolute discretion, then the Vendor may provide the Customer with a Change Request, and the Customer shall be obligated to execute a Change Order to adopt a reasonable extension and Change to the price, timing of work, and/or delivery dates for such Order Form or Statement of Work.

5.6. Acceptance Testing. If an Order Form or Statement of Work requires an Acceptance Test for any Customization to be provided by the Vendor, then said Order Form or Statement of Work shall set forth the procedure and costs for the development of specific Acceptance Test Specifications for such Customization. Each party shall appoint a member of its staff who shall possess the requisite technical ability and authority to represent that party for the purpose of reviewing and agreeing to the Acceptance Test Specifications and the performance of the Acceptance Test for such Customization. The Customer shall commence the Acceptance Test promptly upon its receipt of notice from the Vendor, and the Customer shall expeditiously complete such Acceptance Test within thirty (30) days of receipt of such notice from the Vendor. Performance of the Customization substantially in conformance with the Acceptance Test Specifications shall constitute successful completion of such Acceptance Test. If, for some reason, the results of any Acceptance Test show that the Customization fails to substantially conform to the requirements of the Acceptance Test Specifications, then the Customer shall promptly deliver to the Vendor a written notice listing all deficiencies in reasonable detail. The Vendor will thereafter endeavor to correct such deficiencies, and such Acceptance Test will be repeated in an attempt to obtain substantial compliance with the Acceptance Test Specifications. With respect to any Customization provided by the Vendor, the warranty period relating to the Software shall commence on the Acceptance Date.

5.7. Professional Services. If the Customer desires to have the Vendor provide one or more of the Professional Services as part of the Services, then said Professional Services shall be included on an Order Form or Statement of Work, and the Customer shall be obligated to pay the applicable fees and costs for the providing of such Professional Services, as stated on such Order Form, Statement of Work, or an invoice.

5.8. Maintenance. If the Customer desires to have the Vendor provide periodic Maintenance as part of the Services, then said Maintenance shall be included on an Order Form or Statement of Work, and the Customer shall be obligated to pay the applicable monthly fee for such Maintenance during the Subscription Term, as stated on such Order Form, Statement of Work or an invoice.

5.8.1. Reported Issues. Upon receipt of written notification of an alleged issue with the Software from a Customer who is, at that time, receiving Maintenance from the Vendor and paying for such Maintenance, the Vendor shall investigate the reported issue.

5.8.2. Coverage for Errors Only. If the Vendor, in its sole and absolute discretion after investigation, determines that the reported issue involves an Error, then (i) such reported issue shall be covered by the Maintenance that the Vendor is providing as set forth on the applicable Order Form or Statement of Work, and (ii) the Vendor shall use commercially reasonable efforts to correct the Error in the Software. If, however, the Vendor, in its sole and absolute discretion after investigation, determines that the reported issue does not involve an Error, then the reported issue shall not be covered by the Maintenance that the Vendor is providing as set forth on the applicable Order Form or Statement of Work, and (ii) the Vendor shall notify the Customer that the reported issued is not covered by the Maintenance.

5.8.3. Uncovered Reported Issues. If the Vendor determines that no Maintenance coverage exists for the reported issues, if the Customer so desires, the Vendor shall endeavor to attempt to fix the reported issues, at the Vendor’s normal and customary billable rates and fees, upon receiving written notification from the Customer of its agreement to pay Vendor’s billable rate. The Vendor shall not perform the billable services without first obtaining the Customer’s approval to proceed on a billable basis.

5.8.4. Updates. Provided the Customer purchases and maintains its order for Maintenance (or Customization Support, if applicable) without interruption throughout the Subscription Term, said Customer shall automatically be provided with updates, enhancements, and modifications to the Software (and Customization, if applicable). A Customer shall not be entitled to any updates, enhancements or modifications of the Software (or Customization, if applicable) unless the Customer purchases and maintains its order for Maintenance (or Customization Support, if applicable) without interruption from the date of the Customer’s initial Order Effective Date (or Acceptance Date, if applicable). If the Customer discontinues the purchase or order of the Maintenance (or Customization Support, if applicable), and later desires to obtain an update, enhancement or modification of the Software, Third Party Products, Documentation or the Services, then the Vendor shall have the right to collect from the Customer for all Maintenance (and Customization Support, if applicable), from the date of the discontinuance of such Maintenance (and/or Customization Support, if applicable) by the Customer.

5.9. Cloud Hosting. The Vendor uses a Third Party Vendor to host the Software, Third Party Products, Documentation and the Services. The Vendor may change certain elements of the hosting services or such Third Party Vendor from time to time. In all cases, the Vendor shall be responsible for the performance of such Third Party Vendor, in accordance with these Terms and in each case, any such changes will not materially change, alter or modify the Customer’s access and use of the Software, Third Party Products, Documentation or the Services.

5.10. Conversion Programming.

5.10.1. Form of Data. With respect to Conversion Programming, the Customer shall, at the Customer’s sole cost and expense, provide the Vendor with (i) the Customer’s existing Customer Data to be converted in ASCII, comma delimited, fixed field format, and (ii) file and record layouts and reports meeting the general requirements provided by Vendor. Furthermore, upon request, the Customer shall provide the Vendor with a complete analysis and answer the Vendor’s questions regarding the Customer Data to be converted.

5.10.2. Specific Types of Data. The Vendor will convert only the following data or file items shown hereinbelow:

Customer Name Vendor Name

Customer Number Vendor Number

Customer Address Vendor Address

Customer Phone Number(s) Vendor Phone Number(s)

Customer Fax Number(s) Vendor Fax Number(s)

Customer Contact(s) Vendor Contact(s)

5.10.3. Non-Conforming Data. The pricing for such Conversion Programming is based upon the Customer providing its Customer data or files in the proper format and in a single submission to the Vendor, inclusive of all files to be converted. If, after analysis of the Customer existing data or files provided by the Customer, the Vendor detects that the data or files provided by the Customer (i) contains insufficient, abnormal, or corrupt data or files, (ii) includes data or files that were not in conformance with the requirements set forth in these Terms or any applicable Order Form or Statement of Work, or (iii) otherwise fails to include all of the Customer data or files to be converted in a single submission, then the Vendor may (a) refuse to convert the data provided by the Customer, and notify the Customer accordingly, or (b) charge for additional time expended in performing the conversion. If the Vendor, in its sole and absolute discretion, determines that repair of the data or files submitted by the Vendor, or resubmission of data or files by the Customer, may require additional Conversion Programming by the Vendor, the Vendor shall notify Customer in writing if such additional charges are necessary, and shall not proceed unless the Customer approves such additional charges, in writing.

5.11. Methods of Providing the Services. The Vendor shall provide to Customer the Services, as ordered by and pursuant to an applicable Order Form or Statement of Work, (i) by means of the internet, telephone communications, telecopy, electronic mail, remote access, or personal on-site visit, and (ii) through the use of personnel chosen by the Vendor, as determined in its sole and absolute discretion. All Services shall be provided during the Vendor’s normal business hours, excluding legal holidays. The Vendor may also offer a premium service, which provides Maintenance and other Services beyond the Vendor’s normal business hours, for a surcharge and per usage fee in accordance with the Vendor’s customary schedule of extended support charges.

5.12. Commercially Reasonable Efforts. In exchange for the Customer’s adherence to these Terms (including without limitation the payment of all fees, charges and expenses in accordance with these Terms, as well as any applicable Order Forms, Statements of Work, or invoices), the Vendor shall use commercially reasonable efforts to perform the Services in a professional and workmanlike manner in accordance with applicable professional standards. If at any time during the providing of Services by the Vendor, the Customer discovers or has reason to believe that any wrong assumptions have been made or wrong directions have been taken by the Vendor, the Customer shall forthwith inform the Vendor in writing. The Customer acknowledges and agrees that delivery dates, where specified, are simply estimates provided by the Vendor at the time in which the Order Form or Statement of Work is executed, but such estimates are subject to change in the sole and absolute discretion of the Vendor. The Vendor shall not be responsible for any compromise, loss, delay, alteration, or interception of Customer Data during the transmission of any data or files whatsoever across the Internet or mobile telecommunications networks.

5.13. Advice Provided by Vendor. From time to time, the Vendor may give advice to the Customer. The Vendor will exercise commercially reasonable care in giving such advice but the Customer acknowledges and agrees that the Vendor will not be responsible for the accuracy of such advice based on information supplied by the Customer or one or more third parties, and the Customer shall remain responsible for any decisions made based upon the advice given by the Vendor.

6. PAYMENT OF CHARGES, FEES AND COSTS. The Customer agrees to pay all amounts shown on any Order Form, Statement of Work or invoice issued by the Vendor to the Customer in accordance with the payment terms set forth therein for all Software, Third Party Products, Documentation and/or the Services ordered by the Customer.

6.1. Payments. The license for ordered Software, Third Party Products and Documentation may, as a group, either be purchased or leased from the Vendor. If the license for said items are purchased, the Customer shall pay the purchase fee as set forth in the payment schedule included in an applicable Order Form, Statement of Work or any invoice issued by the Vendor. If the license for said items is leased, the Customer shall pay the monthly lease fee as set forth in the payment schedule included in the applicable Order Form, Statement of Work or any invoice issued by the Vendor to the Customer.

6.2. Payment for the Services. The Services, including without limitation all Maintenance, shall be payable upon either a payment schedule included in an applicable Order Form, Statement of Work or any invoice issued by the Vendor to the Customer.

6.2.1. Payment for Maintenance. The Vendor shall render monthly invoices to the Customer, and payment of the invoices for such Maintenance is due on or before the first day of the Maintenance period for which the invoice is rendered. The monthly charge for Maintenance shall begin upon receipt of the Software by the Customer from the Vendor.

6.2.1.1. Additional Per Diem Rate for Maintenance. In addition to the normal monthly charge for Maintenance, the Vendor reserves the right to, and may, charge an additional fee for Maintenance at the Vendor’s current per diem rate if, in the Vendor’s sole and absolute discretion, the Customer does not have adequately trained staff to assist the Vendor with the providing of Maintenance to the Customer. In such a case, the Customer shall be notified in writing three (3) days in advance of the date that such additional per diem rate will begin to accrue. Where required, in the Vendor’s sole and absolute discretion, the Vendor shall make training available at the Vendor’s then current rates.

6.2.1.2. Surcharge for Non-Conforming Software. In addition to the normal monthly charge for Maintenance, the Vendor may charge an additional fee for Maintenance if, in the Vendor’s sole and absolute discretion, the Software or Third Party Products are not conforming to a release of the Software or Third Party Products that are no longer supported by the Vendor.

6.2.1.3. Withholding of Maintenance. The Vendor may withhold the providing of Maintenance to the Customer if the Customer’s account with Vendor is not then current and all amounts owed to the Vendor by the Customer are not paid in full by the date due, regardless of whether such amounts owed are related to Software, Third Party Products, Documentation or the Services.

6.2.1.4. Adjustments. The Vendor reserves the right to, and may, adjust the amount of the monthly fee for the Maintenance provided by the Vendor to the Customer. The Vendor shall provide written notice of all such adjustments to the monthly fee to the Customer, and thereafter, the adjusted monthly fee shall be effective as of the first day of the calendar month that is thirty (30) days following the issuance of such written notice.

6.2.2. Additional Expenses. In accordance with the Vendor’s customary schedule of charges, the Customer shall reimburse the Vendor for all out-of-pocket expenses incurred by the Vendor in rendering the Services, including without limitation all travel expenses incurred, and time expended, by the Vendor (and its personnel) for on-site visits made by the Vendor in performing or providing the Services.

6.3. Taxes and Governmental Charges. The Customer shall be responsible for all applicable taxes or other charges imposed by any governmental authority, relating to the providing of or access and use of the Software, Third Party Products, Documentation and/or the Services. If the Vendor is obligated to collect or pay taxes for which the Customer is responsible, the Customer shall pay the Vendor the appropriate amount unless the Customer provides the Vendor with a valid tax exemption certificate. The Vendor reserves the right to, and may, gross up the amount owed for the Software, Third Party Products, Documentation and the Services in an invoice if a withholding prevents the Vendor from receiving the actual amount specified in an Order Form, Statement of Work or invoice.

6.4. Cancellation Fees. If the Customer cancels any type of previously scheduled training class or on-site support meeting, the Customer shall pay to the Vendor a non-recoverable cancellation fee as compensation to the Vendor for having to reschedule the Vendor’s personnel, in addition to any additional costs for re-booking travel arrangements or non-refundable airline or hotel expenses. The cancellation fee shall be a percentage of the total billable value of all days that are rescheduled, in the Vendor’s sole and absolute discretion. Said cancellation fee shall be equal to (i) twenty percent (20%) of the billable value if the cancellation occurs within thirty (30) days of the scheduled class or meeting, (ii) sixty percent (60%) of the billable value if within fifteen (15) days of the scheduled class or meeting, and (iii) one hundred percent (100%) of the billable value if within seven (7) days of the scheduled class or meeting.

7. CUSTOMER RESPONSIBILITIES. In exchange for the Vendor providing the Customer with access to and use of the Software, Third Party Products, Documentation and/or the Services, the Customer shall, in compliance with all applicable laws: (a) provide the Vendor with high-speed Internet access to the Customer’s file server containing the Software, (b) be responsible for all Users’ compliance with these Terms, (c) maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Customer Data, (d) comply with applicable privacy laws in relation to the collection, use and disclosure of any personally identifiable information that may be included in the Customer Data the Customer uploads into the Software; (e) be responsible for the content, accuracy and quality of the Customer Data that the Customer uses in connection with the Software, Third Party Products and the Services, (f) protect and securely manage account/user names, password(s), other login information and customer keys (if any) to prevent the unauthorized access to the Software and promptly notify the Vendor in the event of an unauthorized access to the Software, (g) install all updates to the Software in a timely fashion, if provided by the Vendor, (h) be responsible for procuring and maintaining the Internet and mobile telecommunications network connections that connect the Customer’s Users and network to the Software, (i) comply with all applicable local, state, national and foreign laws, treaties, regulations and conventions in connection with its use of the Software, Third Party Products, Documentation and the Services, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data, (j) ensure that any use of the Software, the Third Party Products, Documentation, and the Services by Customer’s Users is in accordance with the terms of these Terms and any licensees between the Vendor and any Third Party Vendor, and (k) notify the Vendor immediately of any unauthorized use of any password or account or any other known or suspected breach of security or any known or suspected distribution of Customer Data. 

8. ADDITIONAL TERMS OF SERVICE.

8.1. Updates or Extensions. The Customer further agrees that, unless explicitly stated otherwise, any new features that augment, update or enhance the Software, Third Party Products, Documentation or the Services, and/or any new said items subsequently purchased by the Customer pursuant to an amendment, subsequent Order Form or Statement of Work accepted by the Vendor referencing these Terms shall be subject to these Terms.

8.2. Internet Access. In order to access and use the Software, Third Party Products, Documentation and the Services, the Customer must have or must obtain access to the World Wide Web, either directly or through devices that access Web-based content. The Customer must also provide all Equipment necessary to make (and maintain) such connection to the World Wide Web.

8.3. Email and Notices. Notwithstanding any provision in these Terms to the contrary, acknowledgement by an officer of Customer is not required with respect to e-mail communications pertaining to the Customer’s routine use of the Software, Third Party Products, Documentation or the Services, including without limitation communications relating to the support, maintenance, or the updating of the aforementioned items.

8.4. Passwords, Access and Notification. The Customer will be responsible for the confidentiality and use of the Customer’s passwords and User names. The Customer will also be responsible for all Electronic Communications, including those containing business information, account registration, account holder information, financial information, Customer Data, and all other data of any kind contained within emails or otherwise entered electronically through the Service or under Customer’s account. The Vendor will act as though any Electronic Communications it receives under Customer’s passwords, User names, and account number were sent by the Customer.

8.5. Additional Customer Responsibilities. The Customer acknowledges and agrees that the Software, Third Party Products, Documentation and the Services are subject to the U.S. Export Administration Laws and Regulations. The Customer agrees that no part of the Software, Third Party Products, Documentation or the Services or information obtained through use of said items, is being or will be acquired for, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals. The Customer agrees to comply strictly with all U.S. export laws and assumes sole responsibility for obtaining licenses to export as may be required.

8.6. Transmission of Data. The Customer understands that the technical processing and transmission of Customer’s Electronic Communications is fundamentally necessary to Customer’s use of the Software, Third Party Products, and the Services. The Customer expressly consents to Vendor’s interception and storage of Electronic Communications and/or Customer Data, and the Customer acknowledges and understands that Customer’s Electronic Communications will involve transmission over the internet, and over various networks, only part of which may be owned and/or operated by the Vendor. The Customer acknowledges and understands that changes to the Customer’s Electronic Communications may occur in order to conform and adapt such data to the technical requirements of connecting networks or devices. The Customer further understands that Electronic Communications may be accessed by unauthorized parties when communicated across the Internet, network communications facilities, telephone, or other electronic means. The Customer agrees that the Vendor is not responsible for any Electronic Communications and/or Customer Data which are lost, altered, intercepted or stored without authorizations during the transmission of any data whatsoever across networks not owned and/or operated by the Vendor.

8.7. Third Party Licenses. The Customer shall access and use the Software, Third Party Products, Documentation and the Services in accordance with all licenses that exist between the Vendor and any Third Party Vendor. Failure to use in accordance with such licenses shall be deemed to be a default of these Terms by the Customer. In the event that the Vendor incurs any increased cost from licenses or annual support fees with any Third Party Vendor during the Subscription Term, Vendor reserves the right to pass these costs onto the Customer, and the Customer shall promptly pay all such costs.

9. DEFAULT BY CUSTOMER / REMEDIES.

9.1. Suspension for Delinquent Account. The Vendor reserves the right to suspend the Customer’s access and/or use of the Software, Third Party Products, Documentation and the Services for any account for which any payment is due but remains unpaid after such delinquency. The Customer agrees that the Vendor shall not be liable to the Customer, or to any third party, for any suspension of the Customer’s access and/or use of the Software, Third Party Products, Documentation or the Services resulting from the Customer’s non-payment of the fees as described in this Section.

9.2. Suspension for Ongoing Harm. The Customer agrees that the Vendor may at any time, with reasonably contemporaneous telephonic or electronic mail notice to the Customer, suspend the Customer’s access to the Software, Third Party Products, Documentation or the Services if the Vendor reasonably concludes that the Customer’s use of said items is causing immediate and ongoing harm to the Vendor or others, in the Vendor’s sole and absolute discretion. If possible, the Vendor will use commercially reasonable efforts to resolve the issues causing the suspension of such items. The Customer agrees that the Vendor will not be liable to the Customer or to any third party for any suspension of the Software, Third Party Products, Documentation or the Services under such circumstances as described in this Section.

9.3. Breach. The Vendor may terminate these Terms upon seven (7) days prior written notice to the Customer in the event of a breach of any obligation of the Customer under these Terms, provided said breach is not cured within the seven (7) day notice period. Upon termination of these Terms, the Customer shall have no right to continue access to or use of the Software, Third Party Products, Documentation or the Services.

9.4. Post-Termination. The Customer acknowledges and agrees that following termination of these Terms, the Customer shall return all Documentation (except that it may retain a copy for archival purposes) to the Vendor and the Vendor may immediately deactivate the Customer’s account. Furthermore, unless otherwise agreed-upon by the parties in writing, the Vendor shall remove or overwrite all applicable content from the Vendor’s systems following the effective date of termination or cancellation, in accordance with the Vendor’s standard procedures. The Customer shall return to the Vendor all Software, Third Party Products and Documentation that the Vendor has provided to the Customer in connection with the Software, Third Party Products, Documentation or the Services (other than the Software that the Customer has purchased from the Vendor). In the event that the Customer fails to either return the Software, Third Party Products and Documentation within seven (7) days of the effective date of termination or cancellation, the Vendor may charge the Customer the then-current fair market value of the Software, Third Party Products and Documentation, and the Customer shall be responsible for any costs/damages arising from any breach of Vendor’s third-party license agreement. Nothing shall preclude the Vendor from maintaining a copy of the Customer Data if required by law.

10. CONFIDENTIALITY OBLIGATIONS. Each party may have access to information that is confidential to the other party (“Confidential Information”). For purposes of these Terms, Confidential Information shall include (a) all technical, scientific, marketing, business, financial and commercial information or data whether communicated in writing or orally, which is provided by a party (the “Disclosing Party”) to the other party (the “Receiving Party”) as a consequence of the providing of the Software, Third Party Products, Documentation and/or the Services by the Vendor to the Customer, (b) any information that is clearly identified in writing at the time of disclosure as confidential, as well as (c) any information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential. In addition, the Customer’s Confidential Information shall include, but not be limited to, the Customer Data. A party’s Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the other party; (ii) was in the other party’s lawful possession prior to the disclosure without any obligation of confidentiality and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure; (iv) is independently developed by the other party without use of or reference to the other party’s Confidential Information, as established by written records. The parties agree to use commercially reasonable efforts not to make each other’s Confidential Information available in any form to any third party. Notwithstanding the foregoing, the Customer acknowledges and agrees that the Vendor may disclose Customer’s Confidential Information to its Third Party Vendors solely to the extent necessary to provide the Software, Third Party Products, Documentation or the Services under these Terms. This Section will not be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required by law or valid order of a court or other governmental authority; provided, however, that a party who has been subpoenaed or otherwise compelled by a valid law or court order to disclose Confidential Information (the “Responding Party”) shall first have given sufficient and prompt written notice to the other party of the receipt of any subpoena or other request for such disclosure, so as to permit such party an opportunity to obtain a protective order or take other appropriate action. The Responding Party will cooperate in the other party's efforts to obtain a protective order or other reasonable assurance that confidential treatment will be afforded the Confidential Information. If the Responding Party is compelled as a matter of law to disclose the Confidential Information, it may disclose to the party compelling the disclosure only that part of the Confidential Information as is required by law to be disclosed. The foregoing obligations of non-disclosure and restricted use will not apply to any Confidential Information that is required to be disclosed by law or court order, provided that notice is promptly delivered to the Disclosing Party in order to provide an opportunity to seek a protective order or other similar order with respect to the Confidential Information and thereafter the Receiving Party discloses only the minimum information required to be disclosed in order to comply with such law or court order, whether or not a protective order or other similar order is obtained by the Disclosing Party. The agreements and covenants set forth in this Section will be construed as being an agreement independent of any other provisions in these Terms. The existence of any claim or cause of action of either party against the other party, whether predicated on these Terms or otherwise, will not constitute a defense to the enforcement by such other party of any of the covenants and agreements of this Section. Each party acknowledges that its failure to comply with the provisions of this Section will cause irreparable harm to the other party which cannot be adequately compensated for by damages, and accordingly acknowledges that the other party will be entitled, in addition to any other remedies available to it at law or in equity, to preliminary and permanent injunctive relief to restrain any anticipated, present or continuing breach of this Section.

11. PRIVACY AND DATA PROTECTION.

11.1. Collection. The Vendor will collect, use and process the Customer Data only in accordance with: (i) the Vendor’s Privacy Statement (which is incorporated into these Terms by reference and which can be found on the Vendor’s website) and to the extent reasonably required to provide the Software, Third Party Products, Documentation and/or the Services; and/or (ii) the Customer’s instructions.

11.2. Contact via Email. The Customer agrees that the Vendor may contact the Customer via e-mail or otherwise with information relevant to the Customer’s use of the Software, Third Party Products, Documentation or the Services and the Customer’s payment obligations.

12. PROPRIETARY RIGHTS.

12.1. Ownership of Intellectual Property. The Vendor and the Third Party Vendors own all intellectual property rights to the Software, Third Party Products, Documentation and the Services. This ownership extends to all copies and portions of these items, and all improvements, enhancements, modifications and derivative works to these items and any work product arising out of any of the foregoing. The Customer receives absolutely no intellectual property rights in the Software, Third Party Products, Documentation or the Services. The Customer acknowledges and agrees that the Software, Third Party Products, Documentation and the Services contain proprietary and Confidential Information that is protected by applicable intellectual property and other laws. The Customer further acknowledges and agrees that the content or information presented to the Customer through the Software, Third Party Products, Documentation and/or the Services may be protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. Nothing in the Software, Third Party Products, Documentation, the Services, or these Terms shall be construed to confer any license to any of the Vendor's or the Third Party Vendor’s intellectual property rights, whether by estoppel, implication, or otherwise. Without limiting the generality of the foregoing, any names or trademarks of the Software or other service marks, logos and product service names of the Vendor are marks of the Vendor (the “Vendor Marks”). The Customer agrees not to display or use the Vendor Marks, or the marks of any Third Party Vendor, in any manner without the express prior written permission of the owner thereof.

12.2. Licenses from Customer. Subject to the terms and conditions of these Terms, the Customer grants to Vendor and its Third Party Vendors the non-exclusive, non-transferable worldwide right to copy, store, record, transmit, display, view, print or otherwise use (a) Customer Data solely to the extent necessary to provide the Software, Third Party Products, Documentation and the Services to the Customer, and (b) any trademarks that the Customer provides to the Vendor for the purpose of including said trademarks in the Customer’s user interface of the Software (the “Customer Trademarks”). The Customer acknowledges and agrees that Customer Data and information regarding the Customer and the Customer’s Users that is provided to the Vendor and its Third Party Vendors in connection with these Terms may be (a) processed by the Vendor and its Third Party Vendors to the extent necessary to provide the Software, Third Party Products, Documentation and the Services, and (b) transferred outside of the country or any other jurisdiction where the Customer and the Customer’s Users are located. In addition, the Customer acknowledges and agrees that it is the Customer’s obligation to inform the Customer’s Users and customers of the processing of Customer Data and information regarding the Customer and the Customer’s Users pursuant to these Terms and to ensure that such Users and customers have given any necessary consent to such processing as required by all applicable data protection legislation. The Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness and copyright of all Customer Data and information regarding the Customer and the Customer’s Users. The Customer agrees that the license regarding the Customer Data shall survive termination of this Agreement solely for the purpose of storing backup Customer Data in accordance with the terms of these Terms, if necessary.

13. WARRANTY. Although the Vendor shall attempt to deliver functioning Software, Third Party Products and Documentation as well as acceptable Services, the Vendor does not warrant that the Software (including any Customization), Third Party Products, Documentation or the Services shall be error free or will satisfy all of the Customer’s requirements. Notwithstanding the foregoing, the Vendor provides the following:

13.1. Authority. The Vendor warrants that it has the full right, interest and authority to enter into and to perform its obligations under these Terms. Vendor warrants that it is the sole owner of and or has full power and authority to grant the license and use of the Software and other rights granted by these Terms to the Customer with respect to the Software and that neither the performance by the Customer in its utilization of the Software, nor the license of and authorized use by the Customer of the Software as described herein, will in any way constitute an infringement or other violation of any U. S. copyright, trade secret, trademark, patent, invention, proprietary information, non-disclosure, or other rights of any third party.

13.2. As to Software (and Customization, if applicable). The Vendor warrants that the Software (or Customization, if applicable) delivered to the Customer under an Order Form or Statement of Work will perform, substantially in conformity with the Documentation for such Software for a period of ninety (90) days from date of delivery by the Vendor (or as to Customization, if applicable, for a period of ninety (90) days from the Acceptance Date). The Vendor does not warrant that such Software (or Customization, if applicable), its operation or use will be error-free. If the Software (or the Customization, if applicable) fails, within the first ninety (90) days after its delivery to the Customer (or, as to Customization, if applicable, within the first ninety (90) days after the Acceptance Date), to conform to the applicable specifications in accordance with the Documentation for such Software (or, as to Customization, if applicable, to the Acceptance Test Specification), provided the Customer notifies the Vendor in writing within said applicable ninety (90) day period, the Vendor warrants that it shall use commercially reasonable efforts to correct the non-conformity or modify the Software (or Customization, if applicable) to achieve material functionality described in the Documentation after investigating such alleged non-conformity, without additional charge to the Customer. If the Vendor cannot correct such non-conformity, the Customer's sole remedy shall be to obtain a refund of (and the Vendor's sole responsibility shall be to refund to the Customer) the amount that the Customer originally paid for such Software (or for such Customization, if applicable).

13.3. Invalidation. The warranties provided herein, as applicable: (i) apply only to errors arising in the course of proper use of the Software (or any Customization, if applicable); and (b) will be invalidated by any modification of the Software (or Customization, if applicable) made without the prior written consent of the Vendor.

13.4. Investigation Costs. Where a defect is found upon investigation by the Vendor to be excluded from the foregoing warranties set forth in this Section, the Vendor may charge, and the Customer shall pay, for all costs and expenses incurred by the Vendor in consequence of such investigation, on a time and materials basis at the Vendor’s then customary rates in the Vendor’s sole and absolute discretion.

13.5. Electronic Intruders. The Customer acknowledges and agrees that the Vendor may not be able to prevent unauthorized electronic intruders to access the Software through the Internet or through other forms of electronic communication. If such unauthorized electronic intruders are able to bypass the Vendor’s security protocols, firewall and safeguards, such unauthorized electronic intruder may change, delete or otherwise corrupt the Customer Data, and the Vendor cannot guarantee that the Customer Data will not be lost or altered even though the Customer uses the Software and Third Party Products exactly as provided for in the Documentation. The Vendor shall not be liable to the Customer, and hereby disclaims responsibility, with respect to any action, destructive or otherwise, by any unauthorized electronic intruder.

13.6. Disclaimer of Warranties.

13.6.1. THE VENDOR DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED, OR THE SOFTWARE, THIRD PARTY PRODUCTS AND DOCUMENTATION WILL BE, ERROR FREE OR UNINTERRUPTED, OR THAT THE VENDOR WILL CORRECT ALL ERRORS IN THE SOFTWARE, THIRD PARTY PRODUCTS, DOCUMENTATION OR THE SERVICES.

13.6.2. EXCEPT AS OTHERWISE STATED IN THIS SECTION HEREINABOVE, THE VENDOR DOES NOT REPRESENT OR WARRANT THAT (i) THE CUSTOMER’S USE OF THE SOFTWARE, THIRD PARTY PRODUCTS OR DOCUMENTATION, OR THAT THE SERVICES TO BE PERFORMED OR PROVIDED AND THE OPERATION THEREOF, WILL BE SECURE, TIMELY, UNINTERRUPED OR ERROR FREE; (ii) ANY OF THE FOREGOING WILL MEET THE CUSTOMER REQUIREMENTS; (iii) ALL ERRORS IN THE SOFTWARE, THIRD PARTY PRODUCTS, DOCUMENTATION OR THE SERVICES WILL BE CORRECTED; (iv) THE SYSTEM THAT MAKES THE SOFTWARE, THIRD PARTY PRODUCTS, DOCUMENTATION OR THE SERVICES AVAILABLE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; (v) THE SOFTWARE OR THIRD PARTY PRODUCTS WILL OPERATE IN COMBINATION WITH OTHER HARDWARE, SOFTWARE, SYSTEMS OR DATA NOT PROVIDED BY THE VENDOR; (vi) THE VENDOR AND ITS THIRD PARTY VENDORS WILL BE ABLE TO PREVENT THIRD PARTIES FROM ACCESSING CUSTOMER DATA OR CUSTOMER’S CONFIDENTIAL INFORMATION; OR (vii) ANY STORED CUSTOMER DATA WILL BE ACCURATE OR RELIABLE.

13.6.3. THE CUSTOMER ACKNOWLEDGES THAT THE VENDOR DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING WITHOUT LIMITATION THE INTERNET, AND THAT THE SOFTWARE, THIRD PARTY PRODUCTS AND THE SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. THE VENDOR IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.

13.6.4. THE WARRANTIES STATED IN THIS SECTION HEREINABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OFFERED BY THE VENDOR. EXCEPT AS EXPRESSLY STATED IN THIS SECTION, TO THE EXTENT ALLOWED BY APPLICABLE LAW, THE VENDOR (i) EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY, CONDITION OR OTHER IMPLIED TERM AS TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND (ii) MAKES NO WARRANTY OR REPRESENTATION REGARDING THE SOFTWARE, THIRD PARTY PRODUCTS, DOCUMENTAITON OR THE SERVICES, OR ANY INFORMATION, MATERIALS, GOODS OR SERVICES OBTAINED THROUGH SAID ITEMS. EXCEPT AS SPECIFICALLY STATED IN THIS SECTION HEREINABOVE, THE SOFTWARE, THIRD PARTY PRODUCTS, DOCUMENTAITON AND THE SERVICES ARE PROVIDED TO THE CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND IS FOR COMMERCIAL USE ONLY.

14. LIMITATION OF LIABILITY.

14.1. Waiver of Certain Damages. THE VENDOR, THE THIRD PARTY VENDORS, AND ANY SUBCONTRACTORS OF THE VENDOR SHALL NOT BE LIABLE OR RESPONSIBLE TO THE CUSTOMER, ANY USERS, OR ANY OTHER PERSON OR ENTITY FOR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES INCLUDING WITHOUT LIMITATION, INTERRUPTION OF BUSINESS, LOST PROFITS, LOST OR CORRUPTED DATA OR CONTENT, LOST REVENUE ARISING OUT OF THESE TERMS (INCLUDING WITHOUT LIMITATION THE SOFTWARE, THIRD PARTY PRODUCTS, DOCUMENTATION OR THE SERVICES, THE USE OF SAID ITEMS OR THE INABILITY TO USE SAID ITMES), EVEN IF THE CUSTOMER, USER, OR OTHER PERSON OR ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

14.2. Direct Damage Limitations. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE VENDOR, ANY THIRD PARTY VENDORS, OR ANY SUBCONTRACTORS OF THE VENDOR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, INCLUDING ANY LICENSE, USE, OR OTHER EMPLOYMENT OF THE SOFTWARE, THIRD PARTY PRODUCTS, DOCUMENTAITON OR THE SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNTS ACTUALLY PAID BY THE CUSTOMER TO THE VENDOR IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. THERE SHALL BE ONLY ONE AGGREGATE LIABILITY CAP UNDER THESE TERMS EVEN IF THERE ARE MULTIPLE CLAIMS; EACH CLAIM SHALL REDUCE THE AMOUNT AVAILABLE IN THE AGGREGATE LIABILITY CAP. DAMAGES, AS LIMITED BY THIS SECTION, ARE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IF ANOTHER REMEDY IS PROVIDED AND SUCH REMEDY IS DEEMED TO FAIL OF ITS ESSENTIAL PURPOSE.

14.3. Basis for Fees and Charges. The Customer acknowledges that the Vendor has set its fees and charges, and entered into these Terms, in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the Customer and the Vendor.

15. INDEMNIFICATION.

15.1. Infringement. The Vendor will indemnify, defend and hold harmless the Customer, in accordance with the procedures set forth in this Section, from and against any and all losses, costs, damages, liabilities and expenses (including without limitation, reasonable legal fees and expenses paid to or for the benefit of an unaffiliated third party) that the Customer incurs as a direct result of any unaffiliated third party claim based on any claim that the Software, Documentation or the Services infringe any U.S. copyright, trademark or trade secret, except to the extent resulting from (i) the Customer’s modification of the Software, Third Party Products, Documentation or the Services or combination by the Customer of the Software, Third Part Products, Documentation or the Services with other products or services if the Software, Third Party Products, Documentation or the Services would not have been infringing but for such combination or modification, (ii) the Customer’s use of the Software, Third Party Products, Documentation or the Services in a manner not authorized herein or for which it was not designed, (iii) the Customer’s failure to use an updated, corrected, enhanced or non-infringing version of the applicable intellectual property, Software, Third Party Products, Documentation or the Services to the extent the Customer was notified that the update cured an infringement, (iv) changes to the Software, Third Party Products, Documentation or the Services made by the Vendor at the direction of the Customer, (v) information, direction, specification or materials provided by the Customer or any third party on the Customer’s behalf, or (vi) any Customer Data. If any item for which the Vendor has an indemnification obligation under this Section becomes, or in the Vendor’s reasonable opinion is likely to become, the subject of an infringement or misappropriation claim or proceeding, the Vendor will, in addition to indemnifying the Customer as provided in this Section, promptly take one of the following actions, at no additional charge to the Customer: (a) secure for the Customer the right to continue using the alleged infringing item, (b) replace the alleged infringing item with a non-infringing substantial equivalent, or modify it, to make it non-infringing, or (c) terminate the Customer’s access, receipt and/or use of the alleged infringing item or remove the alleged infringing item from the Software, Third Party Products, Documentation or the Services, and equitably adjust, in the Vendor’s sole and absolute discretion, the fees and charges to be paid thereafter to reflect such removal. This Section states the Vendor’s entire liability, and the Customer’s sole and exclusive remedy, for the Vendor’s infringement or misappropriation of intellectual property of a third party.

15.2. Customer’s Indemnity. The Customer will indemnify, defend and hold the Vendor and the Third Party Vendors, and any of their affiliates, directors, officers, employees, agents, employees, contractors, successors and assigns (collectively, the “Vendor Parties”) harmless from and against any claims, demands, suits or proceedings for damages, costs, liabilities, expenses, attorney’s fees, equitable relief or similar relief made or brought against the Vendor by a third party alleging that the Customer Data that the Customer disclosed to any of the Vendor Parties infringes or misappropriates the rights of a third party or violates applicable law or arising out of the Customer’s breach of the confidentiality provisions contained in these Terms.

15.3. Indemnification Procedures. The party seeking indemnification shall give prompt notice of the claim and will tender the defense to the other party. The indemnifying party shall conduct the defense and shall have control of the litigation, and the indemnified party shall cooperate in defending against the claim, at no expense to the indemnified party. The indemnified party shall have the right, at any time and at its own expense, to participate in the defense of the claim with counsel of its own choosing. The indemnifying party shall not make any settlement of the claim that results in any liability or imposes any obligation on the indemnified party without the prior written consent of the indemnified party, which shall not be unreasonably delayed, conditioned or withheld. If the indemnifying party fails to (i) respond to the notice of a claim, or (ii) assume the defense of a claim, the party seeking indemnification shall have the right to defend the claim in such manner as it may deem appropriate, at the reasonable cost, expense, and risk of the indemnifying party, and the indemnifying shall promptly reimburse the indemnified party for all such costs and expenses.

16. GENERAL.

16.1. Entire Agreement. These Terms will supersede and control over any conflicting or additional terms and conditions of any Order Form, Statement of Work, purchase order, acknowledgement, confirmation, request for proposal or other document issued by the Customer. These Terms, together with any other documents referenced herein (including any Order Form or Statement of Work), constitute the entire agreement between the Parties pertaining to the subject matter hereof and supersedes all prior agreements, negotiations, discussions and understandings, written or oral, between the Parties. Except as expressly provided in these Terms, there are no representations, warranties, conditions other agreements or acknowledgements, whether direct or collateral, express or implied, that form part of these Terms.

16.2. Independent Entities. The Vendor and the Customer are independent entities. Nothing in these Terms will be construed as creating a partnership, joint venture or agency relationship between the Parties.

16.3. Time. Time is of the essence with respect to these Terms and all of the terms, conditions and covenants contained herein.

16.4. Article Headings. The article headings used herein are for convenience or reference purposes only and shall not be deemed to vary the contents of these Terms or any of the terms and conditions contained herein.

16.5. Setoff. The Vendor reserves the right to set-off against and deduct from any amount owed by the Customer to the Vendor under these Terms or otherwise against any amount owed to the Vendor by the Customer upon the terms and conditions set forth herein.

16.6. Commitment. Except as may be explicitly set forth in an Order Form or Statement of Work, the Parties understand that no commitment of or for the purchase any Software, Third Party Products, Documentation or the Services by the Customer from the Vendor is guaranteed under these Terms.

16.7. Additional Warranties. Both Parties warrant that they are business entities duly organized, validly existing and in good standing under the laws of the jurisdiction where organized. The Parties warrant that these Terms have been duly authorized by all necessary entity action and constitutes a valid obligation. The Parties warrant that the adoption of these Terms and each Party’s performance hereunder will not conflict with or violate any commitment, agreement or understanding either has or will have with any other entity and there is nothing that will prevent the Parties from performing each’s obligations hereunder. The Customer represents that the Customer has the authority to bind the Customer’s employees, agents, delegates, representatives, Users, and any other individuals that access, use and receive the Software, Third Party Products, Documentation and the Services.

16.8. Force Majeure. The Vendor will be not be liable for any failure or delay in its performance under these Terms due to any cause beyond its reasonable control, including, without limitation, acts of God, earthquake, fire, hurricane, flood, elements of nature, acts of war, terrorism, embargo, civil disorders, riot, rebellion, revolutions, epidemics, sabotage, labor shortage or dispute, court orders, regulations imposed after the fact, power failures, or governmental act, computer attacks or malicious acts, such as attacks on or through the Internet, or attacks against any Internet service provider, telecommunications facility or hosting facility.

16.9. Attorney's Fees. Should any party to these Terms be required to employ an attorney or attorneys to enforce any of the provisions hereof, to protect its interest under these Terms, or to recover damages for the breach of these Terms, including without limitation upon the breach, termination, validity, interpretation or enforcement of these Terms, the non-prevailing party in any action (the finality of which is not legally contested) agrees to pay to the prevailing party all reasonable expenses of litigation including without limitation all attorneys', paralegals' and expert witnesses' fees expended or incurred in connection therewith, including all fees and costs incurred at trial or in any appellate proceeding, as well as in determining or quantifying the amount of recoverable attorneys' fees and costs. The reasonable costs to which the prevailing party is entitled shall include costs that are taxable under any applicable statute, rule, or guideline, as well as non-taxable costs, including but not limited to costs of investigation, copying costs, electronic discovery costs, telephone charges, mailing and delivery charges, information technology support charges, consultant and expert witness fees, travel expenses, court reporter fees, and mediator fees, regardless of whether such costs are otherwise taxable.

16.10. No Third Party Beneficiaries. These Terms are not intended for the benefit of any third party. Except as expressly set forth herein, nothing in these Terms, whether express or implied, is intended or shall be construed to confer upon or grant to any third party any right, remedy or claim under or by reason of these Terms. Nothing in these Terms is intended to relieve or discharge any obligation or liability of any third party to any party to these Terms. For the purposes of this paragraph, “third party” means any person other than the parties to these Terms and their respective successors in interest and permitted assigns.

16.11. Waiver. The failure by either party to enforce any provision of these Terms will not be construed as a waiver of any provision or right. Waiver by either party of a breach of any provision of these Terms or the failure by either party to exercise any right hereunder will not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right. Either Party may waive the benefit of any term, covenant or condition of these Terms for its benefit, but no such waiver shall be effective unless in writing and executed by the waiving Party.

16.12. Severability. In the event that any portion of these Terms are held to be unenforceable in any respect by a court of competent jurisdiction, the unenforceable portion will be construed in accordance with applicable law as nearly as possible to reflect the original intentions of the Parties, and the remainder of the provisions will remain in full force and effect.

16.13. Assignment / Delegation. The Customer shall not be permitted to, and may not, assign these Terms, in whole or in part, or any of the Customer’s rights or responsibilities hereunder without the prior written approval of Vendor. Any purported assignment in violation of this Section shall be void. The Parties expressly agree, however, that the Vendor may assign or transfer these Terms at any time without the need for any consent or approval, written or otherwise, by the Customer prior to the assignment or transfer by the Vendor. In fact, this very paragraph shall serve as the Customer’s written approval to any future assignment or transfer of these Terms by the Vendor. The Customer acknowledges that some of the Services may be performed by third-party contractors of the Vendor, whether within or outside of the United States. Thus, the Vendor may delegate the performance of its obligations hereunder to third parties, provided that the Vendor shall remain liable for performance hereunder upon such delegation. Subject to the foregoing, these Terms will be binding upon the parties' respective successors and permitted assigns.

16.14. Changes. The Vendor may amend, change, alter or update these Terms from time to time. If the Vendor does so, the Vendor will notify the Customer at the email address provided in the Customer’s Order Form or Statement of Work at least thirty (30) days before such update becomes binding upon the Customer. If the Customer does not agree with the changes, the Customer can (i) stop using the Software, Third Party Products and Documentation, (ii) cancel the Services without further obligation, except for the payment of all amounts due for any outstanding Software, Third Party Products, Documentation and Services, and (iii) terminate these Terms. Any changes or modifications to these Terms will be effective immediately upon posting of the revisions on the Vendor’s Site, and the Customer’s continued use of the Software, Third Party Products, Documentation or the Services after such time will constitute the Customer’s acceptance of such changes or modifications. The Customer should from time to time review the Terms to understand the terms and conditions that apply to the Customer’s use of the Software, Third Party Products, Documentation and the Services. The Terms will always show the ‘Last Updated’ date at the top.

16.15. Notices. All notices issued or provided hereunder by the Vendor shall be in writing and shall be deemed to have been given upon the day of personal delivery, the third (3rd) business day after mailing, or the first business day after sending by email, as applicable. All notices issued or provided hereunder by the Customer shall be in writing and shall be deemed to have been given upon the day of personal delivery or the third business day after mailing, as applicable. Notice to the Vendor shall be to: Khameleon Software, LLC, Attn: Chief Executive Officer, 400 N. Ashley Drive, Suite 1210, Tampa, Florida 33602. Notices to the Customer shall be to the mailing and email address the Customer provides in its Order Form or Statement of Work.

16.16. Governing Law, Venue and Choice of Law. This Agreement shall be governed by and construed in accordance with the domestic laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would or might cause the application of the laws of any jurisdiction other than the State of Florida. Each of the parties hereto submits to the exclusive jurisdiction of the Circuit Court in and for Hillsborough County, Florida, as the exclusive proper forum in which to adjudicate any case or controversy arising hereunder.

16.17. Survival. All Terms relating to confidentiality, limitation of liability, indemnification, waiver of jury trial, and any provision specifically expressing survival shall survive expiration or termination of these Terms.

16.18. Waiver of Jury Trial. THE PARTIES HERETO RECOGNIZE THAT THESE TERMS ARE RELATIVELY COMPLEX, ARE RELATIVELY LENGTHY AND TECHNICAL IN NATURE, AND MAY BE SUSCEPTIBLE TO MISINTERPRETATION IF ISOLATED PROVISIONS ARE THE SUBJECT OF REVIEW, AND THAT IN THE EVENT OF ANY DISPUTE AS TO THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THESE TERMS, A JUDGE, RATHER THAN A JURY, WOULD BE THE MOST EFFICIENT AND BEST QUALIFIED TRIER OF FACT. ACCORDINGLY, THE PARTIES HERETO DESIRE, ACKNOWLEDGE AND AGREE TO WAIVE ALL RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY LITIGATION OR OTHER LEGAL PROCEEDING BASED ON THESE TERMS, OR ARISING OUT OF, UNDER OR IN CONNECTION OR ASSOCIATION WITH THE RELATIONSHIP CREATED BETWEEN THE PARTIES AS A RESULT THEREOF.