Software as a Service Agreement for Clearlogin

IMPORTANT: READ THIS CAREFULLY BEFORE INSTALLING, REGISTERING, ORDERING, USING OR ACCESSING THIS PROPRIETARY PRODUCT!

THIS SOFTWARE AS A SERVICE AGREEMENT (THE “AGREEMENT”) CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU, AS AN INDIVIDUAL, THE AUTHORIZED RESELLER OR BUSINESS ENTITY ORDERING THE SERVICES (“YOU” OR “CUSTOMER”) AND CLEARLOGIN, Inc. (“CLEARLOGIN”) FOR THE RIGHT TO USE CLEARLOGIN'S SOFTWARE AS A SERVICE, AND ANY APPLICABLE SERVICES OR PROGRAMS, (COLLECTIVELY, THE “SERVICES"). THE TERM "PROGRAM" REFERS TO THE SOFTWARE PRODUCTS OWNED OR DISTRIBUTED BY CLEARLOGIN TO WHICH CLEARLOGIN GRANTS YOU ACCESS AS A PARTY OF THE SERVICES, INCLUDING PROGRAM DOCUMENTATION, AND ANY PROGRAM UPDATES PROVIDED AS PART OF THE SERVICES.

BY ACCESSING, OR OTHERWISE USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ANY OF ITS USERS.

IF YOU ARE ACCESSING THE SERVICES ELECTRONICALLY AND YOU AGREE TO THE TERMS OF THIS AGREEMENT, SELECT THE “I ACCEPT” OR “YES” BUTTON BENEATH THIS AGREEMENT TO ACCESS THE SERVICES. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR OTHERWISE USE THE SERVICES, AND, IF YOU ARE ACCESSING THE SERVICES ELECTRONICALLY, SELECT THE “I DO NOT ACCEPT” OR “NO” BUTTON BENEATH THIS AGREEMENT.

Rights Granted. Subject to the terms and conditions of this Agreement and to Customer’s payment of the applicable fees, CLEARLOGIN grants Customer a non-transferable, non-exclusive, non-assignable, revocable, limited right to use the Services solely for its internal business purposes and in compliance with these terms and any other applicable agreements. You may allow individuals authorized by you or on your behalf to use the Services ("Users") as provided in the Clearlogin Master Terms and Conditions ("Master Terms"). You ensure that any of such Users will comply with this Agreement. Customer agrees to provide accurate identification, contact and other information which may be requested by CLEARLOGIN in connection with Customer's use or registration for the use of the Services.

You acknowledge that CLEARLOGIN has no delivery obligation and will not ship copies of any Programs to you. You agree that you do not acquire under the agreement any license to use CLEARLOGIN Programs in excess of the scope and/or duration of the Services. Upon the end of the agreement or the Services hereunder, your right to access or sue the Services and Programs shall terminate immediately.

Restrictions. Except as expressly authorized herein, Customer and Users are prohibited from and shall not cause or permit any: (1) copying or modification of the Services; (2) creating derivative works based on all or any portion of the Services; (3) removal or modification of any notice of any patent, copyright, trademark or other proprietary rights that appear on or in the Services; (4) reverse engineering, decompilation, translation, disassembly or discovery of the source code of all or any portion of the Services; (5) distribution, disclosure, marketing, leasing, reselling, assigning, loaning, sublicensing, renting, pledging, offering as security or transferring to any third party, including Customer’s end user customers, of the Services; (6) merging of the Services into another product or program; (7) use or export the Services in any manner or for any purpose that violates this Agreement, or any other applicable agreements, including without limitation the Master Terms, or violates any law or regulation; any third party or CLEARLOGIN right including but not limited to intellectual property rights, privacy rights, or export laws; (8) interfere with or disrupt the Services or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Services); (9) use of the Services for any purpose that may menace or harass any person or cause damage or injury to any person or property, (10) involve the publication of any material that is false, defamatory, harassing or obscene; (11) violate privacy rights or promote bigotry, racism, hatred or harm; (12) constitute unsolicited bulk e-mail, “junk mail”, “spam” or chain letters; (13) constitute an infringement of intellectual property or other proprietary rights, or (14) share the rights of any User permitted to use the Services with more than one individual.

In addition to any other rights afforded to CLEARLOGIN under the Agreement, CLEARLOGIN reserves the right to remove or disable access to any material that violates the foregoing restrictions. CLEARLOGIN shall have no liability to you in the event that CLEARLOGIN takes such action. You agree to defend and indemnify CLEARLOGIN against any claim arising out of a violation of your obligations under this Restrictions section.

Term and Termination. Customer may use the Services pursuant to this Agreement and for the period of time set forth in the Master Terms or until such Agreement is terminated by either party in accordance with this Agreement. CLEARLOGIN may terminate the Agreement or suspend the Customer's right to use the Services immediately and without notice if CLEARLOGIN'S believes in its sole discretion (i) Customer is in violation of any term of the Agreement or (ii) Customer has failed to pay CLEARLOGIN any sums due for the use of the Services. At the end of the Services Term, all rights to access or use the Services, including any CLEARLOGIN Programs shall end.

Trial Use of Services. If You obtained this Services for trial or evaluation purposes, the following terms shall apply: CLEARLOGIN grants You a non-transferable, non-exclusive, non-assignable, revocable, limited right to use the Services solely for trial and internal evaluation purposes only through the end of any trial period. The Services is provided for trial and internal evaluation purposes “AS-IS”, WITHOUT ANY WARRANTIES. Except as altered in this paragraph, all terms of this Agreement shall apply to a Trial Use License.

Ownership. The Services may be protected by certain intellectual property rights, other proprietary rights, international treaties and laws of the United States and other jurisdictions. CLEARLOGIN retains all title, ownership, interests and intellectual property rights in and to the Services and deems the Services to be confidential information. To the extent the Services contains any materials licensed from third parties, third party suppliers may own such licensed materials. CLEARLOGIN retains all rights not expressly granted to Customer in this Agreement. Customer agrees to protect and maintain the confidentiality of the Services, and not to disclose the Services to any third parties except as expressly permitted in this Agreement. Customer acknowledges that its breach of confidentiality shall cause CLEARLOGIN irreparable injury and entitle CLEARLOGIN to obtain equitable relief, in addition to all other remedies available to it. Customer further acknowledges that Customer is acquiring only a limited license to use the Services and not any title to or ownership of the Services or any part thereof and that the Services is proprietary to and copyrighted by CLEARLOGIN. CLEARLOGIN SERVICES IS COPYRIGHTED AND LICENSED, NOT SOLD.

Limited Warranty and Disclaimer. CLEARLOGIN warrants that the Services provided to Customer will perform in all material respects in accordance with the policies in the Master Terms. Customer's sole limited warranty for Services that do not perform in all material respects in accordance with the policies in the Master Terms is for CLEARLOGIN to correct all such material performance errors. CLEARLOGIN DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE SERVICES WILL OPERATE IN THE COMBINATIONS WHICH CUSTOMER MAY SELECT FOR USE, THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT CLEARLOGIN WILL CORRECT ALL SERVICES ERRORS.

THE LIMITED WARRANTY SET FORTH IN THIS AGREEMENT IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CLEARLOGIN EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHERS, WHICH VARY FROM STATE/JURISDICTION TO STATE/JURISDICTION. YOU ACKNOWLEDGE THAT NO WARRANTIES ARE MADE HEREIN BY ANY OF CLEARLOGIN’S THIRD PARTY SUPPLIERS.

Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CLEARLOGIN BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, COVER, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST DATA OR LOST PROFITS, HOWEVER ARISING, WHETHER BASED IN CONTRACT, TORT, OR ANY LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO CLAIMS FOR BODILY INJURY OR DEATH OR DAMAGE TO REAL OR TANGIBLE PROPERTY DIRECTLY CAUSED BY CLEARLOGIN’s GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. IN ANY CASE, CLEARLOGIN’s ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF (A) THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR THE LICENSE TO THE SERVICES DURING THE TWELVE MONTH PERIOD PRECEDING SUCH CLAIM OR (B) U.S. $100. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE LIMITATIONS SET FORTH IN THIS AGREEMENT MAY NOT APPLY TO CUSTOMER. IN ADDITION, CLEARLOGIN, ON ITS OWN BEHALF AND ON BEHALF OF ITS THIRD PARTY SUPPLIERS, RESELLERS AND DISTRIBUTORS DISCLAIM ALL LIABILITY OF ANY KIND.

Third Party Components. Some aspects of the Services provided under this Agreement may be include certain freeware, open source (“Open Source Services”) or other third party components which, if included, are provided pursuant to the terms of the applicable Open Source License governing its use. CLEARLOGIN THEREFORE PROVIDES SUCH OPEN SOURCE SERVICES ON AN “AS IS” AND “WITH ALL FAULTS” BASIS WITHOUT ANY WARRANTY WHATSOEVER AND HEREBY EXPRESSLY DISCLAIMS WITH RESPECT TO ANY OPEN SOURCE SERVICES AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW: (A) ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT; AND (B) ALL LIABILITY FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, COVER, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST DATA OR LOST PROFITS, HOWEVER ARISING, WHETHER BASED IN CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, EVEN WHERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Indemnification. Customer shall indemnify, defend and hold CLEARLOGIN, and its officers, agents, and employees, harmless from and against any and all actual or threatened losses, liabilities, expenses, damages, claims, demands, proceedings and causes of action (including without limitation reasonable attorneys’ fees and expenses) (“Claims”) based on, arising out of, concerning, resulting from or relating to (a) a breach by Customer of any of the terms or provisions of this Agreement, or (b) unauthorized use of the Services by Customer. CLEARLOGIN shall provide prompt notification to Customer of any such Claims and shall assist Customer, at Customer’s sole cost and expense, as reasonably requested by Customer.

Support. CLEARLOGIN may, but is not required to, provide technical support for this Services. Technical Support may be provided on either a time and material basis or under the terms of a separate Maintenance and Support Agreement. If you have previously purchased maintenance and support from CLEARLOGIN for this specific CLEARLOGIN Services and are currently under contract, the support terms under that Agreement will remain in full force and effect through the respective termination date. If you purchased third party maintenance and support, your vendor will provide you with the appropriate terms and conditions for such maintenance and support.

Taxes. Customer will pay the fees excluding all sales, use, VAT and other transaction taxes, personal property taxes and other taxes. Customer will be responsible for payment of all such taxes (other than those based on CLEARLOGIN’s net income), including any related penalties and interest, arising from the payment of license fees or the delivery or license of the Services to Customer, unless Customer furnishes satisfactory proof of exemption. Customer will make all payments of license fees to CLEARLOGIN free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of license fees to CLEARLOGIN will be Customer’s sole responsibility.

U.S. Government Restricted Rights. The Services and the related documentation provided are a “commercial item,” as that term is defined at 48 C.F.R. 2.101 (Oct. 1995), consisting of “commercial computer Services” and “commercial computer Services documentation,” as such terms are used in 48 C.F.R. 12.212 (Sept. 1995). Consistent with 48 C.F.R. 12.212 (Sept. 1995) and 48 C.F.R. 227.7202-1 through 227.7202¬4 (June 1995), all U.S. Government End Users acquire the Services and the related documentation with only those rights set forth in this Agreement.

General. Entire Agreement. The terms and conditions of this Agreement constitute the entire agreement between CLEARLOGIN and You with respect to the subject matter hereof, and supersede all prior or contemporaneous oral or written representations, proposals or agreements concerning the subject matter herein. The terms and conditions herein take precedence over any additional or different terms, from whatever source, including Your purchase order or other correspondence, to which objection is hereby made by CLEARLOGIN.

Waiver. None of the terms and conditions in this Agreement will be deemed waived, amended or modified by CLEARLOGIN unless such waiver, amendment or modification is made in writing and signed by an authorized representative of CLEARLOGIN. No waiver of rights contained in this Agreement shall constitute a subsequent waiver of such rights or any other rights hereunder.

Severability. If any provision of this Agreement is held to be invalid or unenforceable by a proper authority having jurisdiction over this Agreement that provision shall be modified and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remainder of this Agreement shall continue in full force and effect.

Assignment. Customer may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement (including without limitation its rights with respect to the Services) to any third party without Licensor’s prior written consent. Any attempted assignment or transfer in violation of the foregoing will be null and void.

Choice of Law, Jurisdiction and Venue. This Agreement is governed by the laws of the State of New Jersey, without reference to its conflict of law principles. For any dispute relating to this Agreement, the parties consent to personal jurisdiction and the exclusive venue of the courts in Somerset county, New Jersey. The UN Convention on Contracts for the International Sale of Goods (CISG) is specifically excluded and shall not be applicable to this Agreement. In the event of a dispute arising out of or relating to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs. THE PARTIES WAIVE ANY RIGHT TO A JURY TRIAL IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.

Compliance with Laws. You agree to comply with all U.S. and foreign export control laws and regulations, including but not limited to the U.S. Export Administration Act of 1979, as amended, and successor legislation, and the Export Administration Regulations passed by the Department of Commerce. You expressly agree that You shall not export, directly or indirectly, re-export, divert, or transfer the Services or any direct product thereof to any destination, company or person restricted or prohibited by U.S. export controls.

Relationship between the parties. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the authority to bind the other or incur obligations on behalf of the other without such other party's prior written consent.

Titles and Headings. The titles and section headings in this Agreement are only included for ease of reference and have no legal effect.

Construction. Any construction or interpretation to be made of the Agreement shall not be construed against the drafter.

Statute of Limitations. Customer agrees that regardless of any statue or law to the contrary, any claim or cause of action arising out of or related to the Services of the Agreement must be filed within one (1) year after such claim or cause of action arose or forever be barred.

Survival. Upon termination of this Agreement those provisions of this Agreement which, by their nature, are meant to survive termination shall so survive, and include without limitation provisions related to ownership of intellectual property, confidentiality, indemnification, limitation of liability, warranties and representations, governing law and venue and payment.