SUBSCRIPTION AGREEMENT FOR CORECON ONLINE SERVICE

Transcription

1 SUBSCRIPTION AGREEMENT FOR CORECON ONLINE SERVICE This Subscription Agreement (this Agreement ) for Corecon Online Service was last updated on August 18, IMPORTANT READ CAREFULLY: THIS IS A BINDING AGREEMENT BETWEEN CORECON TECHNOLOGIES, INC. ( CORECON ) AND YOU ( YOU OR YOUR ), EITHER IN YOUR INDIVIDUAL CAPACITY OR, IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, SUCH ENTITY. THIS AGREEMENT GOVERNS YOUR USE OF THE SERVICE (AS DEFINED BELOW). BY ACCEPTING THIS AGREEMENT AND/OR ACCESSING THE SERVICE, YOU ARE CONSENTING TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE THE SERVICE. WRITTEN ASSENT IS NOT A PREREQUISITE TO THE VALIDITY OR ENFORCEABILITY OF THIS AGREEMENT. CORECON MAY AMEND ANY PORTION OF THIS AGREEMENT FROM TIME TO TIME UPON PUBLICATION THEREOF BY CORECON ON THE SERVICE WEB SITE ( CORECON SHALL GIVE YOU NOTICE OF SUCH AMENDMENTS AT THE ADDRESS YOU PROVIDED WHEN REGISTERING FOR THE SERVICE. WHEN NOTIFIED, YOU AGREE TO REVIEW THE AGREEMENT AMENDMENTS APPLICABLE TO YOUR THEN CURRENT USE OF THE SERVICE BEFORE YOU NEXT ACCESS THE SERVICE. BY USING THE SERVICE AFTER ANY CHANGE TO THE AGREEMENT IS POSTED ON THE SERVICE WEB SITE, YOU WILL BE DEEMED TO BE BOUND BY ALL SUCH CHANGES. IF YOU DO NOT AGREE TO ANY POSTED AMENDMENTS, YOU MUST GIVE WRITTEN NOTICE TO CORECON. IN SUCH EVENT, YOUR ACCESS TO THE SERVICE WILL END 30 DAYS AFTER THE DATE OF SUCH NOTICE, AND CORECON WILL THEREAFTER CONVEY TO YOU YOUR USER DATA UNDER THE TERMINATION PROCESS SET FORTH BELOW. Section 1. Use of the Service The Service consists of the right of the Users (defined below) to electronically transmit and retrieve User Data (defined below) into and from the content (which includes all software, schemas, templates, images, audio, associated media, web pages, and related documentation and information; collectively, the Content ) that Corecon maintains and makes available to You via the Service Web Site to which You are being granted access under this Agreement. For purposes of this Agreement, the term Content excludes information and all other data entered by Users into the Service in the course of using the Service (collectively, User Data ). The Service is made available by Corecon to You only during the period You maintain a paid subscription to the Service, and Corecon may terminate your access to the Service if you do not pay all subscription fees as and when due. In order to use the Content, You must agree to all terms of this Agreement. Subject to the terms and conditions of this Agreement, Corecon grants You, or, if You are a legal entity, Your individually-named employees, representatives, consultants, contractors and/or agents (individually, a User and, collectively, Users ) who have been issued a user identification (by Corecon or You) and password (by You) (collectively, User IDs ) for access to the Service, a limited, revocable, nonsublicensable, non-exclusive, nontransferable right and license to use the Service during the period You maintain a paid subscription to the Service. A User ID may be used only by the single individual to whom it has been assigned. A User ID may be reassigned to a new User if the previous User s right to access and use the Service is terminated (except if terminated for Your breach of this Agreement). No rights or licenses are granted to You other than those expressly granted in this Agreement. All other rights are reserved by Corecon. Section 2. Agreement The terms and conditions of this Agreement, including without limitation the subscription pricing to which You agreed during the registration process, constitute the entire and exhaustive statement of the agreement between Corecon and You with respect to the Service and supersede all other prior or contemporaneous communications, understandings and agreements with regard to the subject matter hereof. Upon notice published on the Service Web Site, Corecon may modify this Agreement and may discontinue or revise any or all other aspects of the Service at its sole discretion. Page 1

2 Corecon may at its sole discretion discontinue the Service or substantially reduce the scope of the Service after the Effective Date (as defined below), provided Corecon provides You 90 days written notice thereof. In such event, upon Your request, in the event you elect to terminate this Agreement as provided below, Corecon shall convey Your User Data to You under the termination process contained herein. Section 3. Payment; Billing; Renewal You shall pay all fees or charges to Your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. You shall pay in advance, as required by Corecon, any registration or service fees and other charges incurred by You. The initial charges will be equal to the current number of total User licenses requested, multiplied by the User license fee currently in effect. Additional license fees apply to optional, or add-on, products or services. You are responsible for paying for all User licenses ordered for the entire License Term (as defined below), whether or not such User licenses are actively used. For situations where credit card payment is used or required by Corecon, You shall maintain a current authorization for Corecon to debit Your credit card account for such amounts as a condition to signing up for the Service. Interest shall accrue on past due amounts at the rate of 1.5% percent per month on outstanding balances or, if less, the maximum rate permitted by applicable law. If You believe Your bill is incorrect, You must contact Corecon in writing within 45 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit. You agree to provide Corecon with complete and accurate billing and contact information and to promptly notify Corecon of any changes to any such information. You may add User licenses at any time by using a written or online Order Form (as defined below), subject to the following: (i) added licenses will be coterminous with the existing License Term; (ii) the license fee for the added licenses will be the then-current, generally applicable license fee; and (iii) licenses and add-ons added in the middle of a billing cycle will be pro-rated. For purposes of this Agreement: (a) "License Term" means the billing period (e.g. quarterly or annual) of the Service noted on the Order Form, from the Effective Date; (b) "Effective Date" means the date the initial Order Form was submitted; and (c) "Order Form" means the form evidencing the initial subscription for the Service, together with any subsequent order forms submitted online or in written form, specifying, among other things, the number of licenses and products and/or services contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, with each such Order Form hereby incorporated into and made a part of this Agreement; however, in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail. Your License Term will automatically renew unless You notify Corecon prior to the next billing period. Corecon shall submit an invoice receipt for Your renewal period based on Corecon s current rates and billing terms. You are obligated to pay all such renewal fees prior to any extension of service. The renewal charge will be equal to the then-current number of total User licenses times the license fee then in effect, plus fees for optional, or add-on, products and/or services being provided at the time of renewal. Corecon's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and You shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Corecon s income. Section 4. Termination If at any time You fail to comply with any terms of this Agreement, including without limitation terms concerning payment of fees, Corecon may, at its sole discretion and without notice to You, suspend its performance under this Agreement and deny You access to and use of the Service unless or until You are in good standing with Corecon. Good standing means that You are in compliance with all terms of this Agreement and Corecon is in receipt of all license fees due and payable on Your account. As stated in Section 2, regardless whether You are in good standing, Corecon may at its sole discretion discontinue the Service or substantially reduce the scope of the Service upon delivery to You of 90 days written notice thereof. If You wish to terminate use of the Service, You must provide Corecon with advance written notice. Notice must be received prior to the next billing period and acknowledgment must be received from Corecon for Cancellation to take effect at the end of the current term so that no additional charges are incurred. Payments made for current and Page 2

3 prior billing periods are non-refundable. At the time when the cancellation goes into effect, Your access to any User Data stored by the Service may be permanently disabled according to the process and conditions below. Corecon shall maintain Your User Data for a minimum of thirty (30) days after the termination date. In addition, Corecon will allow You fifteen (15) days of free access to the Service to retrieve data using the built-in features of the Service. Section 5. User Data; Passwords No bailment or similar obligation on the part of Corecon is created by this Agreement or otherwise with respect to any User Data. CORECON SHALL NOT HAVE ANY RESPONSIBILITY OR OBLIGATION TO YOU OR OTHER USERS OF THE SERVICE TO MONITOR, SUPERVISE OR OVERSEE THE CONTENTS OF FILES STORED ON THE SERVICE. ADDITIONALLY, AS SET FORTH IN MORE DETAIL IN SECTIONS 11 AND 12 BELOW, CORECON (A) MAKES NO REPRESENTATION OR WARRANTY CONCERNING THE ACCESSIBILITY, INTEGRITY, AND/OR PRESERVATION OF YOUR USER DATA, AND (B) SHALL HAVE NO LIABILITY WHATSOEVER IN CONNECTION WITH LOSS, DAMAGE, CORRUPTION, INACCESSIBILITY, OR OTHER PROBLEMS CONCERNING YOUR USER DATA. Corecon may store the information provided by You in the Service registration process, and provide aggregate statistical (non-personally-identifiable) information about You to potential advertisers and other third parties. Corecon may use the information provided by You to inform You about other publications, products and services. However, no one other than Corecon or others necessary to provide access to the Service will receive Your name, address, phone number, address, or other specific personal information, without Your consent. For more details, see our Privacy Policy at You are solely responsible for maintaining the confidentiality of User IDs and restricting use of the Service to only Your licensed Users. You shall be responsible for all use of the Service accessed through User IDs issued to You and/or Your Users. WITHOUT THE CORRECT USER ID AND PASSWORD, YOUR USER DATA WILL REMAIN ENCRYPTED AND INACCESSIBLE. You agree to comply with the procedures specified by Corecon from time to time regarding obtaining and updating User IDs assigned to You and/or Your licensed Users. Use of any User ID is subject to cancellation or suspension by Corecon at any time, including any misuse of any assigned User ID in any way. The reissuance or reactivation of a User ID may be subject to Corecon's standard charges. You will use Your best efforts to prevent any third party from obtaining any User ID assigned to You and/or Your licensed Users, and You will inform Corecon immediately of any actual or potential unauthorized access to such User IDs or to the Service. Section 6. Obligations and Restrictions You shall not use the Service for storage, possession, creation or transmission of any information, the storage, possession, creation or transmission of which violates any state, local or federal law and/or constitutes an infringement of any rights or misappropriation of any property of any other person or entity. You hereby consent to any disclosure of User Data by Corecon as required by law or legal process. You are responsible for and must provide all telephone, Internet access, and other equipment and services necessary to access the Service. You, not Corecon, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all User Data, and Corecon shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any User Data. In the event this Agreement is terminated (other than by reason of Your breach), Corecon will convey to You Your User Data under the termination process contained herein. Corecon reserves the right to withhold, remove and/or discard User Data without notice for any breach, including, without limitation, Your non-payment. Upon termination for cause, Your right to access or use User Data immediately ceases, and Corecon shall have no obligation to maintain or forward any User Data. You may not (and shall not allow any other person to): (i) reverse engineer, decompile or disassemble any portion of the Content or other products or processes accessible through the Service Web Site, except and only to the extent that this limitation is expressly prohibited by applicable law; (ii) access or disclose any Content not in human- Page 3

4 readable form, all of which constitutes trade secrets and Confidential Information (as defined below) of Corecon; (iii) license, sublicense, sell, resell, transfer, assign, distribute, provide commercial hosting services with, or otherwise commercially exploit or make available to any third party, the Service or the Content in any way, whether or not for payment or other consideration; (iv) modify or make derivative works based upon the Service or the Content; (v) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (vi) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service. No use of the Service other than expressly permitted by this Agreement is permitted. Requests for use of the Content for any purpose other than as permitted in this Agreement should be directed to information@corecon.com. You agree to cooperate with Corecon in connection with its efforts to protect its legal rights in and to the Service and related intellectual property. Corecon may, at its expense, perform an audit of Your use of the Service to verify Your compliance with the requirements and limitations set forth in this Agreement. Any such audit shall be made upon reasonable prior written notice to You. If the audit reveals that You are using the Service beyond the scope of the license herein granted, You shall take all reasonable measures requested by Corecon to remedy such unauthorized use and to pay Corecon s reasonable expenses and retroactive license fees associated with such audit and Your unauthorized use. If You fail to take such measures, Corecon may immediately terminate the license granted pursuant to this Agreement and exercise any other rights or remedies provided under law and/or this Agreement. You and/or Your licensed Users may from time to time provide suggestions, comments regarding usability, bug reports, test reports and/or other feedback (collectively, "Feedback") to Corecon with respect to the Service. Corecon does not solicit Feedback, and all Feedback is and shall be given entirely voluntarily. Upon transmission of any Feedback to Corecon, Corecon shall become the sole and exclusive owner of such Feedback, and may thereafter freely use, disclose, reproduce, license, distribute and otherwise commercialize the Feedback in any product, technology, service, specification or other documentation without restriction or payment of any fees whatsoever. Section 7. Access; Interference If You operate a web site and desire to link to the Service Web Site, You may link only to the home page, or the generated TeamLink Portal URL that can be found in Corecon V7 s Settings area. Linking to any other page or subdomain of the Service Web Site is not allowed. You may not use any device, software or routine to interfere or attempt to interfere with the proper working of the Service, neither may You take any action that imposes an unreasonable or disproportionately large load on the Service infrastructure, nor use any data mining, robot, spider, crawler, cancelbots, Trojan horse, or any data gathering or extraction method or manual process in connection with Your use of the Service. Section 8. Effect of Termination Upon the termination of this Agreement, You and Your licensed Users shall cease use of the Service, and if so requested, promptly certify to Corecon the destruction of all full or partial copies of any Content obtained by You. All payment obligations and the terms of the following Sections shall survive termination or expiration of this Agreement: Sections 3 8 and Section 9. Maintenance and Training Corecon will maintain the Service as Corecon, in its sole discretion, deems necessary and advisable. Corecon and/or a Corecon Channel Partner designated by Corecon will provide such training and services to You and/or Your licensed Users as are included as part of Corecon s standard customer service offering, subject to the terms and conditions of this Agreement. Corecon is not obligated to provide any services to You that are not included in the Service or this Agreement, regardless of any representation made by others, including a Corecon Channel Partner. Page 4

5 Section 10. Intellectual Property Rights Corecon reserves all rights not expressly granted to You in this Agreement. All Content, as well as its selection and arrangement, is protected by copyright and other intellectual property laws and treaties, and all title and intellectual property rights therein and thereto are owned by Corecon and/or its licensors. Except as expressly and unambiguously licensed herein, Corecon owns all rights, title and interests in and to the Content and all copies, portions and derivative works thereof (by whomever produced) and all copyrights, patent rights, trade secret rights and all other intellectual property and proprietary rights therein anywhere in the world. All title and intellectual property rights in and to Your User Data which may be accessed through use of the Service are Your property. If the Service contains documentation provided only in electronic form, You may print one copy of such electronic documentation. Your access to or use of the Service does not transfer to You any ownership, title, or registrable interest of any kind to the intellectual property in the Service, and You will not acquire any rights to the Service or any related software except as expressly set forth in this Agreement. Any use of the Content other than to process Your User Data as authorized in this Agreement is not licensed and is strictly prohibited. You may not download, transmit, reproduce, distribute or in any way exploit any Content or other Corecon intellectual property without first obtaining the express written permission to do so from Corecon. This Agreement does not constitute a license to use either party s trade names, service marks or any other trade insignia. Any use of any of either party s trade names, services marks or any other trade insignia shall require prior written consent by the consenting party. You acknowledge and agree that Content and the Service (including the ideas and algorithms therein) contain valuable trade secrets and proprietary information belonging to Corecon and its licensors, and that such materials constitute confidential information of Corecon and its licensors (collectively, Confidential Information ). You shall: (i) not use or disclose any Confidential Information or copies thereof, except as permitted by this Agreement; (ii) disclose Confidential Information only to Your employees and agents only to the extent required to use the Service under the terms of this Agreement; and (iii) bind Your employees, consultants, agents and other third parties in writing to maintain the confidentiality of Confidential Information and not use or disclose Confidential Information except as permitted by this Agreement. Section 11. Limited Warranty and Disclaimers (A) Limited Warranty. Corecon shall use commercially reasonable efforts to assure the Service is accessible from the Internet no less than 99% of the time, averaged over a 90-day period. Such availability excludes any scheduled maintenance, downtime related to requests by You, Your actions or inactions, and other events beyond the commercially reasonable control of Corecon. In the event that the uptime commitment set forth in this Section 11(A) is not met in any 90-day period, Corecon shall provide You with a credit equal to one month s subscription fees. (B) WARRANTY DISCLAIMER. THE SERVICE IS DEEMED ACCEPTED BY YOU. EXCEPT AS PROVIDED IN SECTION 11(A) ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CORECON AND ITS RESELLERS, LICENSORS AND SUPPLIERS PROVIDE THE SERVICE AND OFFERING UNDER OR PURSUANT TO THIS AGREEMENT AS IS AND WITH ALL FAULTS, AND CORECON AND ITS RESELLERRS, LICENSORS AND SUPPLIERS HEREBY DISCLAIM ALL WARRANTIES AND CONDITIONS EXCEPT THOSE CONTAINED IN THIS AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY (IF ANY) IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF RELIABILITY OR AVAILABILITY, OF ACCURACY OR COMPLETENESS OF RESPONSES, OF RESULTS, OF WORKMANLIKE EFFORT, OF ACCESSIBILITY, OF LACK OF VIRUSES, AND OF LACK OF NEGLIGENCE, ALL WITH REGARD TO THE SERVICE, AND THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER PRODUCTS OR SERVICES, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SERVICE OR OTHERWISE ARISING OUT OF THE USE OF THE SERVICE. ALSO, THERE IS NO WARRANTY OR CONDITION OF TITLE, QUIET ENJOYMENT, QUIET POSSESSION, CORRESPONDENCE TO DESCRIPTION OR NON-INFRINGEMENT WITH REGARD TO THE SERVICE. Page 5

6 ALTHOUGH CORECON MAY PROVIDE INTEGRATION SERVICES WITH, OR SUPPORT THE EXPORT OF DATA TO, OR THE IMPORT OF DATA FROM THIRD-PARTY PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMTATION MICROSOFT OUTLOOK, INTUIT QUICKBOOKS, SAGE 50 CANADA, SAP BUSINESS ONE, XERO OR OTHERS, IT CAN NOT WARRANTY THAT THESE SERVICES WILL BE AVAILABLE IN THE FUTURE SINCE THIRD-PARTY PRODUCTS OR THEIR RELATED INTEGRATION SERVICES COULD BE DISCONTINUED WHICH WOULD BE OUT OF CORECON S CONTROL. THE ENTIRE RISK AS TO THE QUALITY, OR ANYTHING ARISING OUT OF THE USE OR PERFORMANCE OF THE SERVICE AND ANY SUPPORT PRODUCTS, REMAINS WITH YOU. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. (C) DATA DISCLAIMER. YOU ACKNOWLEDGE THAT ANY DATA ENTRY, CONVERSION OR STORAGE IS SUBJECT TO THE LIKELIHOOD OF HUMAN AND MACHINE ERRORS, MALICIOUS MANIPULATION, OMISSIONS, DELAYS, AND LOSSES, INCLUDING, BUT NOT LIMITED TO, INADVERTENT LOSS OF DATA OR DAMAGE TO MEDIA THAT MAY RESULT IN LOSS OR DAMAGE TO YOU AND/OR YOUR PROPERTY, AND/OR YOUR DETRIMENTAL RELIANCE ON MALICIOUSLY MANIPULATED DATA. EXCEPT AS PROVIDED IN SECTION 13, CORECON SHALL NOT BE LIABLE FOR ANY SUCH ERRORS, OMISSIONS, DELAYS, OR LOSSES. YOU ARE RESPONSIBLE FOR ADOPTING REASONABLE MEASURES TO LIMIT THE IMPACT OF SUCH PROBLEMS, INCLUDING BACKING UP DATA, ADOPTING PROCEDURES TO ENSURE THE ACCURACY OF INPUT DATA, EXAMINING AND CONFIRMING RESULTS PRIOR TO USE, ADOPTING PROCEDURES TO IDENTIFY AND CORRECT ERRORS AND OMISSIONS, REPLACING LOST OR DAMAGED MEDIA, AND RECONSTRUCTING DATA. YOU ARE ALSO RESPONSIBLE FOR COMPLYING WITH ALL LOCAL, STATE, AND FEDERAL LAWS PERTAINING TO THE USE AND DISCLOSURE OF ANY DATA. (D) DISCLAIMER CONCERNING CORECON CHANNEL PARTNERS. ANY CORECON CHANNEL PARTNER OR OTHER RESELLER IS NOT AFFILIATED WITH CORECON IN ANY CAPACITY OTHER THAN AS A RESELLER OR CONSULTANT FOR CORECON S PRODUCTS AND HAS NO AUTHORITY TO BIND CORECON OR MODIFY ANY LICENSE OR WARRANTY. CORECON MAKES NO REPRESENTATION, WARRANTY, ENDORSEMENT OR GUARANTEE WITH RESPECT TO THE SKILLS OR QUALIFICATIONS OF ANY CORECON CHANNEL PARTNER OR OTHER RESELLER, AND YOU ARE ENCOURAGED TO INDEPENDENTLY INVESTIGATE THE SKILLS AND QUALIFICATIONS OF ANY CORECON CHANNEL PARTNER OR OTHER RESELLER WITH WHOM YOU ASSOCIATE. Section 12. Exclusion of Incidental, Consequential and Certain Other Damages TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL CORECON OR ITS RESELLERS, LICENSORS OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, OR CONFIDENTIAL OR OTHER INFORMATION, FOR BUSINESS INTERRUPTION, FOR PERSONAL INJURY, FOR LOSS OF PRIVACY, FOR FAILURE TO MEET ANY DUTY INCLUDING OF GOOD FAITH OR OF REASONABLE CARE, FOR NEGLIGENCE, FOR ANY FAILURE OF THE SERVICE TO INTEGRATE WITH, AND/OR SUPPORT THE EXPORT OF DATA TO, OR THE IMPORT OF DATA FROM, ANY THIRD-PARTY PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION MICROSOFT OUTLOOK, INTUIT QUICKBOOKS, MYOB, SAGE, SAP, OR ANY OTHERS, INCLUDING ANY DATA LOSS OR CORRUPTION RESULTING FROM ANY FAILED INTEGRATION, IMPORT OR EXPORT IN CONNECTION WITH ANY THIRD-PARTY PRODUCTS OR SERVICES, AND FOR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF OR INABILITY TO USE THE SERVICE, THE PROVISION OF OR FAILURE TO PROVIDE SUPPORT OR OTHER PRODUCTS, INFORMATION, SOFTWARE, AND RELATED CONTENT THROUGH THE SERVICE OR OTHERWISE ARISING OUT OF THE USE OF THE SERVICE OR CONTENT OR OTHERWISE UNDER OR IN CONNECTION WITH ANY PROVISION OF THIS AGREEMENT, EVEN IN THE EVENT OF THE FAULT, TORT (INCLUDING NEGLIGENCE), MISREPRESENTATION, STRICT LIABILITY, BREACH OF CONTRACT OR BREACH OF WARRANTY OF CORECON OR ANY RESELLER, LICENSOR OR SUPPLIER, AND EVEN IF CORECON OR ANY Page 6

7 RESELLER, LICENSOR OR SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. Section 13. Limitation of Liability and Remedies EXCEPT AS EXPRESSLY PROVIDED IN THE UPTIME LIMITED WARRANTY SET FORTH IN SECTION 11(A), NOTWITHSTANDING ANY DAMAGES THAT YOU MIGHT INCUR FOR ANY REASON WHATSOEVER (INCLUDING, BUT NOT LIMITED TO, ALL DAMAGES REFERENCED HEREIN AND ALL DIRECT OR GENERAL DAMAGES IN CONTRACT OR ANYTHING ELSE), THE ENTIRE LIABILITY OF CORECON AND ANY OF ITS RESELLERS, LICENSORS AND SUPPLIERS UNDER ANY PROVISION OF THIS AGREEMENT AND YOUR EXCLUSIVE REMEDY HEREUNDER SHALL BE LIMITED TO THE ACTUAL DAMAGES YOU INCUR IN REASONABLE RELIANCE ON THE SERVICE UP TO BUT NOT EXCEEDING THE AMOUNT ACTUALLY PAID BY YOU FOR THE SERVICE. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF ANY REMEDY FAILS ITS ESSENTIAL PURPOSE. Section 14. Governing Law; Jurisdiction This Agreement shall be construed and controlled by the laws of the State of California, and You consent to exclusive jurisdiction and venue in the state or federal courts in Orange County, California. You hereby waive all defenses of lack of personal jurisdiction and forum non conveniens. Process may be served on either party in the manner authorized by applicable law or court rule. Section 15. Attorneys Fees If either party retains attorneys to enforce any rights arising out of or relating to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys' fees, costs and other expenses. Section 16. U.S. Government Rights All Content is a commercial item, as that term is defined in 48 C.F.R , consisting of commercial computer software and commercial computer software documentation, as such terms are used in 48 C.F.R Consistent with 48 C.F.R and 48 C.F.R through , if You are or act on behalf of an agency or other instrumentality of the U.S. Government, You acquire only those rights in the Content that are expressly provided by this Agreement. You agree to ensure that any reproduction of any portion of the Content is labeled to reflect the foregoing. Section 17. Export Restrictions You acknowledge that the Content is subject to U.S. export jurisdiction. You agree to comply with all applicable international and national laws that apply to the Content, including, but not limited to, the U.S. Export Administration Regulations, as well as end-user, end-use, and destination restrictions issued by U.S. and other governments. Section 18. Severability If any provision of this Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. Section 19. Indemnification Page 7

8 You hereby indemnify and hold harmless Corecon, its affiliates, resellers, suppliers and licensors and their respective officers, directors, shareholders, and employees and agents (each, an Indemnitee ) from and against any liability or loss, including, but not limited to, reasonable attorneys' fees and costs and expenses, incurred by an Indemnitee as a result of any liability resulting from or arising out of Your or Your Users use of the Service or User Data (or the use by persons using any User ID assigned to You and/or Your licensed Users), or resulting from or arising out of Your breach of this Agreement. Corecon reserves the right, at its own expense, to participate in the defense of any matter otherwise subject to indemnification by You, but shall have no obligation to do so. You shall not settle any such claim or liability without the prior written consent of Corecon, which shall not be unreasonably withheld. Section 20. Amendment Notwithstanding anything to the contrary, any term or condition in any purchase order voucher, letter, , or other communication or memorandum of Yours that is in any way inconsistent with, or adds to, the provisions of this Agreement is null and void. Neither the course of conduct between parties nor trade practice shall act to modify the provisions of this Agreement. This Agreement may not be amended except as stated in Section 2 or by a writing referencing this Agreement signed by Corecon and You. Section 21. Equitable Relief. You agree that a material breach of this Agreement adversely affecting Corecon s and/or its licensors proprietary rights in the Service, which necessarily includes, without limitation, any breach of any of the confidentiality provisions set forth in Section 10, would cause irreparable injury to Corecon and/or its licensors for which monetary damages would not be an adequate remedy and that Corecon and/or its licensors shall be entitled to equitable relief, including, without limitation, injunctions, without the posting of a bond, with respect to any such breach or potential breach in addition to any remedies it may have at law. Page 8