TERMS AND CONDITIONS##1. ACCESS RIGHTS; RESTRICTIONS##1.1 Access. Subject to Customer’s compliance with the terms##and conditions of this Agreement, CFTG hereby agrees that##Customer has the right to access and use the services##specified in the attached Order Form (collectively, the##“Service”) during the term of this Agreement for the internal##business purposes of Customer only as provided herein and##only in accordance with CFTG’s applicable user documentation##(or other CFTG-provided written instructions). For clarity, the##Service is hosted by CFTG.##1.2 Restrictions. Customer will not (and will not allow any##third party to): (i) reverse engineer, decompile, disassemble, or##otherwise attempt to discover the source code, object code, or##underlying structure, ideas, or algorithms of the Service; (ii)##modify, translate, or create derivative works based on the##Service; (iii) copy, rent, lease, distribute, pledge, assign, or##otherwise transfer or encumber rights to the Service; (iv) use##the Service for timesharing or service bureau purposes or##otherwise for the benefit of a third party; (v) remove or##otherwise alter any proprietary notices or labels from the##Service or any portion thereof, or (vi) use any data or##information provided via the Service for any purpose other than##the Customer’s internal use as authorized hereunder (for##example, Customer shall not sell or otherwise dispose of such##information/data – or use it to create any product or service).##Customer will use the Service only in compliance with (i) the##Order Form, (ii) the rights granted hereunder, and (iii) in##accordance with all applicable laws and regulations.##1.3 Ownership. Except for the rights expressly granted under##this Section 1, CFTG retains all right, title, and interest in and##to the Service (and all data, software, products, works, and##other intellectual property created, used, or provided by CFTG##for the purposes of this Agreement). To the extent Customer##provides CFTG with any feedback relating to the Service##(including, without limitation, feedback related to usability,##performance, interactivity, bug reports and test results)##(“Feedback”), CFTG shall own all right, title and interest in and##to such Feedback (and Customer hereby makes all##assignments necessary to achieve such ownership).####2. PAYMENT OF FEES##Customer will pay CFTG the fees for the Service as set forth in##the Order Form (“Fees”). Unless otherwise specified in the##Order Form, all Fees will be invoiced in advance and all##invoices issued under this Agreement are payable in U.S.##dollars within thirty (30) days from date of invoice. For any##Service for which fees are billed in arrears, CFTG will invoice##Customer following completion of the Service. Unpaid invoices##are subject to a finance charge of 1.5% per month or the##maximum permitted by law, whichever is lower, plus all##expenses of collection. Customer shall be responsible for all##(i) taxes associated with Service other than taxes based on##CFTG’s net income, and (ii) CFTG’s costs of collection in the##event of Customer’s delinquent payment. All Fees paid are##non-refundable (except as otherwise expressly set forth in the##Order Form) and not subject to set-off.####3. TERM; TERMINATION##Subject to earlier termination as provided below, this##Agreement shall commence on the Effective Date and continue##for the initial subscription period specified in the Order Form;##thereafter this Agreement will automatically renew for##consecutive periods each equal in length to the initial##subscription period (unless either party provides the other party##with written notice of non-renewal at least thirty (30) days prior##to the end of the then current period). Either party may##terminate this Agreement in the event the other party materially##breaches this Agreement and fails to cure such breach within##thirty (30) days (ten (10) days in the case of non-payment)##from receipt of written notice thereof. Upon termination of this##Agreement, all rights granted herein to Customer will terminate##and Customer will make no further use of the Services. The##following provisions will survive termination of this Agreement:##Sections 1.2, 1.3, 2, 3, 4, 5, 6, 7, and 8.####4. CONFIDENTIALITY##During the term of this Agreement, each party (a “Disclosing##Party”) may provide the other party (a “Receiving Party”) with##confidential and/or proprietary materials and information##(“Confidential Information”). All materials and information##provided by Disclosing Party to Receiving Party and identified##at the time of disclosure as “Confidential” or bearing a similar##legend, and all other information that the Receiving Party##reasonably should have known was the Confidential##Information of the Disclosing Party, shall be considered##Confidential Information; for the avoidance of doubt, the##Service and terms of this Agreement are Confidential##Information of CFTG. Receiving Party shall maintain the##confidentiality of the Confidential Information and will not##disclose such information to any third party without the prior##written consent of Disclosing Party. Receiving Party will only##use the Confidential Information internally for the purposes##contemplated hereunder. The obligations in this Section 4##shall not apply to any information that: (i) is made generally##available to the public without breach of this Agreement, (ii) is##developed by the Receiving Party independently from the##Disclosing Party’s Confidential Information, (iii) is disclosed to##Receiving Party by a third party without restriction, or (iv) was##in the Receiving Party’s lawful possession prior to the##disclosure to the Receiving Party and was not obtained by the##Receiving Party either directly or indirectly from the Disclosing##Party. Receiving Party may disclose Confidential Information##as required by law or court order; provided that, Receiving##Party provides Disclosing Party with prompt written notice##thereof and uses its best efforts to limit disclosure. At any##time, upon Disclosing Party’s request, Receiving Party shall##return to Disclosing Party all Disclosing Party’s Confidential##Information in its possession, including, without limitation, all##copies and extracts thereof. Notwithstanding the foregoing, (a)##Receiving Party may disclose Confidential Information to any##third-party to the limited extent necessary to exercise its rights,##or perform its obligations, under this Agreement; provided that,##all such third parties are bound in writing by obligations of##confidentiality and non-use at least as protective of the##Disclosing Party’s Confidential Information as this Agreement##and (b) all Feedback shall be solely CFTG’s “Confidential##Information.”####5. WARRANTY; DISCLAIMER##CFTG warrants that it will use commercially reasonable efforts##to (i) ensure the Service is available on a 24/7 basis, and (ii)##promptly correct all verifiable defects in the Service of which##CFTG is aware. EXCEPT AS EXPRESSLY SET FROTH IN##THIS SECTION 5, CFTG DISCLAIMS ALL WARRANTIES, ##EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,##WARRANTIES OF MERCHANTABILITY, FITNESS FOR A##PARTICULAR PURPOSE, AND NONINFRINGEMENT. CFTG##DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS##THAT MAY BE OBTAINED FROM USE OF THE SERVICE.####6. LIMITATION OF LIABILITY##NOTWITHSTANDING ANYTHING TO THE CONTRARY,##EXCEPT FOR BODILY INJURY OF A PERSON, NEITHER##PARTY, SHALL BE LIABLE WITH RESPECT TO ANY##SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY##LEGAL OR EQUITABLE THEORY, FOR ANY: (A) ERROR OR##INTERRUPTION OF USE, LOSS OR INACCURACY OR##CORRUPTION OF DATA, THE COST OF PROCUREMENT##OF SUBSTITUTE GOODS, SERVICE, OR TECHNOLOGY,##OR LOSS OF BUSINESS; (B) INDIRECT, EXEMPLARY,##INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES,##EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE##POSSIBILITY OF SUCH LOSS OR DAMAGE; (C) MATTERS##BEYOND SUCH PARTY’S REASONABLE CONTROL; OR (D)##AMOUNTS IN THE AGGREGATE THAT EXCEED THE FEES##PAID BY CUSTOMER TO CFTG DURING THE SIX (6)##MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF##ACTION ACCRUES (PROVIDED THAT, IF NO FEES ARE##PAID, SUCH AMOUNTS SHALL BE LIMITED TO##US$1,000.00). THE LIMITATIONS ON LIABILITY CONTAINS##HEREIN SHALL NOT APPLY TO BREACH(ES) OF##SECTIONS 1.2 OR 4.####7. NON-SOLICITATION##Until one (1) year after termination of this Agreement,##Customer will not encourage or solicit any employee or##consultant of CFTG to leave CFTG for any reason.####8. MISCELLANEOUS##The parties will comply with the additional term and conditions##(if any) set forth in the Order Form. If any provision of this##Agreement is found to be unenforceable or invalid, that##provision will be limited or eliminated to the minimum extent##necessary so that this Agreement will otherwise remain in full##force and effect and enforceable. This Agreement is not##assignable or transferable by a party except with the other##party’s prior written consent; provided that, a party may##transfer and assign its rights and obligations under this##Agreement without consent to a successor to all or##substantially all of its assets or business to which this##Agreement relates. This Agreement is the complete and##exclusive statement of the mutual understanding of the parties##and supersedes and cancels all previous written and oral##agreements, communications, and other understandings##relating to the subject matter of this Agreement, and all waivers##and modifications must be in a writing signed by both parties,##except as otherwise provided herein. No agency, partnership,##joint venture, or employment is created as a result of this##Agreement, and Customer does not have any authority of any##kind to bind CFTG in any respect whatsoever. Any notices in##connection with this Agreement will be in writing and sent by##first class US mail, confirmed facsimile or major commercial##rapid delivery courier service to the address specified on the##Order Form (or such other address as may be properly##specified by written notice hereunder). Email notice shall##authorized to the extent set forth herein. This Agreement shall##be governed by the laws of the State of California, without##regard to the conflict of law provisions thereof. Except for##claims for injunctive or equitable relief or claims regarding##intellectual property rights (which may be brought in any##competent court), any dispute arising under this Agreement##shall be finally settled in accordance with the Comprehensive##Arbitration Rules of the Judicial Arbitration and Mediation##Service, Inc. (“JAMS”) by three arbitrators appointed in##accordance with such Rules. The arbitration shall take place in##Santa Clara, California, USA, in the English language and the##arbitral decision may be enforced in any court. With respect to##all disputes arising in relation to this Agreement, but subject to##the preceding arbitration provision, the parties consent to##exclusive jurisdiction and venue in the state and Federal courts##located in San Francisco, California. The prevailing party in##any action or proceeding to enforce this Agreement will be##entitled to recover costs and attorneys’ fees.
