Software Subscription License Agreement

LICENSE AND/OR SUBSCRIPTION GENERAL TERMS AND CONDITIONS

BY SIGNING AN ORDER OFFERED BY US, WHICH REFERENCES THESE TERMS OR BY INDICATING YOUR ACCEPTANCE THROUGH AN “I ACCEPT” BUTTON OR SIMILAR ELECTRONIC ACCEPTANCE METHOD, YOU (“LICENSEE” OR “CUSTOMER” OR “YOU”) ACCEPT THE ORDER AND AGREE TO BE BOUND BY THE AGREEMENT. THESE TERMS, TOGETHER WITH ANY ACCEPTED ORDER BETWEEN YOU AND THE COMPANY COMPRISE THE AGREEMENT BETWEEN YOU AND THE COMPANY. CAPITALIZED TERMS USED IN THIS AGREEMENT SHALL HAVE THE MEANINGS SET FORTH HEREIN OR AS DEFINED IN THE ORDER. THE AGREEMENT GOVERNS YOUR USE OF THE SOFTWARE. WE SHALL MAKE THE SOFTWARE AVAILABLE TO YOU AS A LICENSE OR SERVICE IN ACCORDANCE WITH THE APPLICABLE ORDER. THE FEES COVER THE USE OF THE SOFTWARE (IN ACCORDANCE WITH THE LICENSE GRANTED HEREIN) AND THE PROVISION OF SUPPORT SERVICES, AS FURTHER DESCRIBED IN THE AGREEMENT. THESE TERMS DO NOT APPLY IN RESPECT OF ANY ADDITIONAL SERVICES SUCH AS ANY INSTALLATION, INTEGRATION, PARAMETRIZATION AND/OR ADAPTION SERVICES RELATED TO THE SOFTWARE. 

UNDER THIS AGREEMENT, YOU MAY UTILIZE THE SOFTWARE EITHER PURSUANT TO AN ON-PREMISES LICENSE (“LICENSE” AS DEFINED HEREUNDER) OR AS A SERVICE (“SERVICE” AS DEFINED HEREUNDER). THE TERMS “LICENSE” AND “SERVICE” MAY BE USED INTERCHANGEABLY WITHIN THIS AGREEMENT AND SHOULD BE INTERPRETED IN THE CONTEXT OF THE SPECIFIC MODEL UNDER WHICH THE SOFTWARE IS PROVIDED. IN THE LICENSE MODEL, YOU ARE GRANTED A NON-EXCLUSIVE, NON-TRANSFERABLE, REVOCABLE LICENSE TO INSTALL AND USE THE SOFTWARE ON YOUR PREMISES FOR YOUR INTERNAL BUSINESS PURPOSES. IN THE SERVICE, YOU ARE GRANTED A NON-EXCLUSIVE, NON-TRANSFERABLE, REVOCABLE RIGHT TO ACCESS AND USE THE SOFTWARE, HOSTED BY THE COMPANY, VIA THE INTERNET FOR YOUR INTERNAL BUSINESS PURPOSES. ALL TERMS AND CONDITIONS OF THIS AGREEMENT APPLY EQUALLY TO BOTH MODELS, EXCEPT WHERE EXPLICITLY STATED OTHERWISE.

1. The License grant, SaaS Services, and Customer’s Restricted Use of the Software  

1. The License and support. During the Subscription Term, and subject to the terms of the Order Form and the Agreement, the Company (“Company”, or “Sanjer”, “We” or “Us”) shall provide to Customer and its User(s) as and Customer hereby purchases and accepts: (i) a non-exclusive, non-transferable, revocable right to use the Software (“”License”), including any enhancement, alteration, modification, change, updates, and upgrades thereto, as shall be released by the Company to the market in general from time to time at the discretion of Company (“Software” or “Platform” hereunder), only for its own internal purpose (which specifically excludes any analysis of third-party data and any use of the Software for other companies/organizations is prohibited) and as applicable (ii) a subscription-based right to access and use the Software as a hosted Software-as-a-Service (SaaS), delivered remotely by the Company, including any enhancements, alterations, modifications, changes, updates, and upgrades thereto, as released to the market at Company’s discretion (”Services”). The License or Services shall be provided in accordance with Company’s policies, documentation, and service descriptions as updated from time to time. Support services related to the Software (whether licensed or provided as a Service) shall be rendered in accordance with Company’s instructions and any marketing, technical, or other materials related to the Software issued or published by the Company. You are responsible for all acts and omissions in breach of the Agreement by any Users, and accordingly, You will ensure that all Users are made aware of the terms of the Agreement applicable to Your use of the Software and Services. 
2. Delivery. If you purchase the software as a License, We shall make available to You the Software for download by the date specified in the Order; and this shall be the date the Software is deemed delivered to You. In respect of new releases, delivery shall be deemed completed on the date We make the applicable new release available to You by download. Alternatively, We may at our discretion provide You access to the Platform using a different format without affecting Your use of the Software.. In the event of changes to the rights granted to You pursuant to an applicable Order (e.g. extension of the Subscription Term, additional metrics, etc.), We shall provide You with a new certificate and will deactivate Your previously issued access key.
3. Restrictions.  Unless expressly permitted in this Agreement, You shall not, and shall not permit any third party to: (i) copy, reproduce, assign, sublicense, transfer, pledge, lease, rent, distribute, share, or otherwise exploit the Platform, Services, or any related materials; (ii) develop derivative works, modify, frame, republish, disseminate, resell, or otherwise profit from any data extract derived from the Platform or Services without a separate written agreement with the Company; (iii) decompile, disassemble, reverse engineer, reverse compile, attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats, programming, or interoperability interfaces by any means; (iv) remove, alter, or destroy any proprietary markings, legends, or security mechanisms within the Platform or Services; (v) use the Platform or Services for timesharing, service bureau purposes, or for the benefit of any third party, including through unauthorized pooling, multiplexing, or virtualization; (vi) circumvent any security or access control mechanisms of the Platform or Services or interfere with their integrity or performance; (vii) harvest, collect, mine, or otherwise extract information about users of the Platform or Services; (viii) separate or use any component part of the Platform or Services on unauthorized equipment, hardware, systems, or networks; (ix) allow User Accounts to be shared by more than one individual per Authorized User, except for reassignment to replace an individual no longer using the Services; or (x) use the Services to send unauthorized or unsolicited commercial communications. Any attempt to engage in any of the foregoing activities shall constitute a material breach of this Agreement.
4. Additional Terms for Generative AI Features. As you utilize the Software with Generative AI features, your use of such features is subject to the Additional Terms for Generative AI features as set in [add link – Company’s DPA URL]. By accessing or using any Generative AI features, you agree to comply with these additional terms, which are hereby incorporated into and made part of this Agreement by reference.

5. Licensee Responsibilities.  Licensee shall not use the Platform in a manner that violates any applicable laws and regulations. Licensee shall cooperate with and assist the Company in facilitating the License and grant Company any required consents  and rights in order for it to perform its obligations under the Agreement. Licensee shall be solely responsible for procuring and maintaining in proper working order, throughout the Term and at Licensee’s own expense, the hardware, operating environment (including operating system software), third party software, database management systems and services, backup means and infrastructure necessary for installation and operation of the Platform (including without limitation uninterruptible power systems and electrical back-up devices), including without limitation the requirements as set forth in Exhibit B attached hereto. Licensee shall be solely responsible for preventing any virus infections, security breaches, and other disabling events from damaging the Platform. To the extent Licensee provides Company with tools, data or materials, Licensee has the right to permit Company to use such tools, data or materials and Company shall use them solely for purposes of this Agreement. Licensee shall promptly inform Company in writing from time-to-time as to any problems encountered with the Platform, if any, and any breaches or potential breaches of this Agreement by any third party of which Licensee becomes aware or by Licensee. 
6. License to Use Customer Data. Subject to the terms of this Agreement, Customer grants Company a non-exclusive, non-transferable, non-sublicensable, and non-assignable (except as expressly permitted herein), worldwide, royalty-free license to access, use, copy, process, store, transmit, distribute, perform, transform, and display Customer Data and its derivatives solely as necessary to provide the Services and to comply with applicable laws during the Subscription Term. For purposes of this Agreement, “Customer Data” means any materials, information, data, text, images, and other content submitted or uploaded to the Platform by Customer or its Authorized Users. Also, Company may collect and process information regarding Customer’s and its Authorized Users’ use of the Platform and Services, including, without limitation, access logs, session replays, clickstream data, errors, crashes, and other diagnostic and performance-related data (collectively, the “Usage Data“), as further detailed in the Company Privacy Policy available at [add link – Company’s Privacy Policy URL]. Usage Data is processed and utilized internally for purposes such as service development, operational enhancements, error detection and resolution, performance monitoring, security improvements, and overall optimization of the Services
7. Acceptable Customer Data Policy. Customer is solely responsible and liable for any Customer Data submitted, stored, or used within the Platform or Services, and shall ensure that neither it nor any Authorized User submits any Customer Data that: (a) violates any third-party rights, including intellectual property, confidentiality, or privacy rights; (b) is defamatory, false, misleading, or deceptive; (c) is obscene, offensive, hateful, inflammatory, or otherwise inappropriate; (d) bullies, insults, intimidates, or humiliates any individual or entity; (e) promotes or distributes sexually explicit material; (f) encourages, incites, or glorifies violence; (g) promotes discrimination based on race, gender, religion, nationality, disability, sexual orientation, or age; (h) misleads or deceives any individual or entity through fraudulent representations or omissions; (i) encourages, facilitates, or promotes illegal activity; (j) is in contempt of court or violates any legal obligation; (k) is threatening, abusive, invasive of privacy, or causes undue annoyance, inconvenience, or distress; (l) harasses, upsets, embarrasses, alarms, or annoys any individual; (m) results in the impersonation of any person or misrepresentation of Customer’s identity or affiliation; or (n) contains or introduces viruses, malware, Trojan horses, or any other malicious, harmful, or disruptive code or components. The Company does not monitor, verify, or endorse any Customer Data or any opinions, recommendations, or advice contained therein and expressly disclaims all liability in connection with Customer Data. If any Customer Data includes sensitive information or personal health information requiring additional safeguards or regulatory compliance, Customer shall bear sole responsibility for ensuring compliance with applicable laws and must notify the Company in writing before submitting such data.
8. Unauthorized use consequences. You will be liable to us for any damages incurred due to the unauthorized use of the Software, source code, or other materials provided by Us, including without limitation, any continued use of the Software outside the Subscription Term and any provision of the Software, source code, or other materials to unauthorized third parties

2. Ownership; Third Party Platform; Data.

2. 1. Ownership.  The Platform and all copies and derivative works thereof (by whomever created, including those changes made at the suggestion of Licensee), the associated goodwill, copyrights and know-how and any intellectual property rights, are and shall remain owned solely by Company or its licensors (including without limitation all concepts, methods, methodologies, procedures, processes, know-how, techniques and models conceived, created or reduced to practice by the Parties pursuant to this Agreement and as part of the Services). Licensee, upon its creation, automatically assigns to Company the ownership of all such derivative works and all other intellectual property therein, and Company shall own any suggestions, comments, feedback (including any feedback), or ideas provided by Licensee in respect of the Platform, without restriction and without compensation or reporting rights. Except for the license expressly granted, no other license, right, or interest in any trademark, copyright, know-how, patent, service mark or other intellectual property right in the Platform, or any part or derivative work thereof, is granted or conveyed to Licensee. Company reserves any and all rights not expressly granted to Licensee by this Agreement. “Insights” means all models, algorithms and other developments created by Company based on extraction of data from the Platform, regardless of any input by Licensee with respect to such models, algorithms and developments. For avoidance of doubt, Company does not have any right in Licensee’s Data (as defined below).

2. Third Party Software.  Certain third-party software is or may be included within or embedded in the Platform (the “Third Party Platform”). Third Party Platform is provided by Company subject to the terms of this Agreement, or the licensing, notices and other files included in the delivery of the Platform. However, Company provides no express or implied warranty, indemnity or support for Third Party Platform, and will have no liability therefore. Company undertakes to assign to Licensee any warranties, to the extent made in the license agreements accompanying such Third Party Platform, if permitted. If such assignment is not permitted, Company shall take necessary action as may be required to enforce such warranties on Licensee’s behalf. Except in copying of Third Party Platform subject to the terms of this Agreement, Licensee may not use third parties’ names or trademarks. Company may replace any Third Party Platform with other Third Party Platform with substantially-equivalent functionality. 
3. Licensee’s Data. You own all right, title and interest in and to any and all information and data uploaded to the Platform by You including information regarding Licensee’s customers to be used in connection with the Platform, (“Licensee’s Data”), the associated goodwill, copyrights and know-how and any intellectual property rights. You shall have sole responsibility and liability for (i) the legality, appropriateness, and integrity of Customer Data; (ii) the completeness, reliability, accuracy and quality of Customer Data; (iii) obtaining and maintaining all necessary licenses and consents required to use Customer Data, if any; and (iv) Your entering of Customer Data into the Software. You acknowledge that (i) We will not be held responsible in any way for any Proprietary Right or other rights’ infringement or violation or the violation of any applicable laws, arising or relating to such Customer Data and/or communications; and (ii) that any Personal Data contained in Customer Data has been collected and is maintained in compliance with applicable Data Protection Laws. Each party shall, in connection with the exercise of its rights and the performance of its obligations under the Agreement, comply with all applicable Data Protection Laws. 

3. Acceptance. Platform shall be deemed satisfactory to and accepted by Licensee (“Acceptance”) unless within seven (7) days after the submission to Licensee, Licensee ceases to make use of the Platform.
4. Prices and Payment. Company shall charge and invoice You for the License herein as per the prices set in the Order Form. Company will invoice Licensee pursuant to the fees and payment terms as stated in the Order Form. 
5. Confidentiality, Data Protection and Security

5. 1. Each party shall hold in confidence all of the other party’s Confidential Information, shall limit access to such Confidential Information to those of its employees and consultants who need to have access to such information or material and who are subject to applicable confidentiality obligations similar to those in this Agreement. Both parties undertake to treat as confidential all of the other party’s Confidential Information acquired before and in connection with performance of the Agreement and to use such Confidential Information only to perform the Agreement. Confidential Information shall not be reproduced in any form except as required to accomplish the intent of the Agreement. Any reproduction of Confidential Information of the other party shall contain any and all confidential or proprietary notices or legends which appear on the original. Each party shall protect the confidentiality of the other party’s Confidential Information with the same degree of care as for its own information of like importance, with no less than a reasonable degree of care, and shall use such Confidential Information only for exercising its rights or obligations hereunder. Notwithstanding anything to the contrary, Licensee acknowledges that the Platform constitutes valuable proprietary information of Company and its licensors and that unauthorized dissemination or disclosure of the Platform could cause Company irreparable harm. Any additional copies of the Software and other materials We make available to You are only for Your internal backup or archiving purposes. You will treat the Software and provided materials as Confidential Information and shall undertake all required activities to ensure that no third party gains any access to the Software, or provided materials.
   2. “Confidential Information” means any information which is disclosed by a party (including without limitation information of affiliates and third parties) to the other party, whether tangible or intangible, including but not limited to the terms of this Agreement, excluding information which is now available or later becomes available to the public without breach of this Agreement by the receiving party, is lawfully obtained by the receiving party from a third party or parties who are under no obligation of confidentiality to the disclosing party, or is known to the receiving party prior to such disclosure as evidenced by the receiving party’s written records. Without limiting the above, Licensee’s Confidential Information shall include Licensee’s Data, and Company’s Confidential Information shall include information relating to the Platform, improvements, enhancements, product specifications and plans, technical data, know-how, techniques, algorithms, routines, compositions, processes, formulas, methods, designs, design rules, flow charts, inventions (whether reduced to practice or not), discoveries, concepts, past, current and planned research and development, structures, modules, architectures, current and planned distribution methods and processes, customer lists, current and anticipated customer requirements, price lists and market studies. 
   3. Promptly after termination or expiration of this Agreement, all materials containing Confidential Information of a party shall be returned to it upon its written request. Notwithstanding the above, it will not be a violation by either party of this Section to disclose any information required to be disclosed by law or legal process, upon the advice of legal counsel; provided, however, that the receiving party will give as much notice as is reasonably possible to the disclosing party prior to disclosing such information and shall take such actions as are reasonably necessary to afford confidential treatment to any such information.  
   4. Notwithstanding anything to the contrary, Company may use Licensee’s name and logo for inclusion on Company’s customer list and in marketing information of the Company to be shared with its potential investors and customers, including a case study and testimonial. Company will also be allowed to refer potential clients to Licensee. Following the Effective Date of this Agreement, the parties shall issue a mutual press release, the content of which shall be approved by both parties. Neither party shall disparage the other party or its business.
   5. The obligations in this Section shall, with respect to each disclosure of Confidential Information, apply for a period of 7 (seven) years from its first disclosure, provided, however, that trade secrets shall be protected until they are no longer trade secrets under applicable law.
   6. The processing of personal data or personal information by Company on behalf of Customer, to the extent that Insights or Customer Data include personal data or personal information, shall be subject to and governed by the Company Data Processing Agreement (the “DPA”) available at [add link – Company’s DPA URL], which is incorporated into this Agreement upon execution of the MSA by both parties. Company shall implement and maintain reasonable organizational and technical safeguards, consistent with industry standards, to protect the security and confidentiality of all Customer Data, ensuring that access and distribution to any third party occur only as directed and authorized by Customer. Such safeguards shall include, but are not limited to, access and authorization controls, intrusion detection, security monitoring and logging, and anti-virus protections. Notwithstanding the foregoing, Customer is responsible for properly configuring and using the Services, including any Third-Party Services or Integrations, and for taking all necessary measures to maintain the security, protection, and backup of Customer Data. Company does not undertake to retain preservations or backups of Customer Data. Customer bears sole responsibility for the integrity, preservation, and backup of Customer Data, regardless of whether the Services include a backup feature or functionality. To the fullest extent permitted by law, Company shall have no liability for any data loss, unavailability, or other consequences related to the foregoing.

6. Limited Warranty; Indemnification.
7. 1. Company warrants to Licensee that during the term the License is in effect (the “Warranty Period”) the Platform will perform in substantial conformity with the applicable documentation provided by the Company. Company’s sole obligation and Licensee’s sole and exclusive remedy under the foregoing warranty shall be for Company to use its commercially reasonable efforts to correct or to replace with a component of similar functionality the affected Platform. If We cannot reasonably make such correction or substitution, then We may, in our sole discretion, refund You any prepaid fees covering the remainder of the Subscription Term for the affected Software and terminate Your use of the affected Software for which You have received the refund. SUCH CORRECTION, SUBSTITUTION OR REFUND CONSTITUTES YOUR SOLE AND EXCLUSIVE REMEDY, AND OUR SOLE AND EXCLUSIVE LIABILITY FOR ANY BREACH OF THE WARRANTY.
   2. The above warranty is conditioned upon the Licensee notifying Company in writing within the Warranty Period, of any alleged defect in the Platform. Licensee acknowledges that the Platform provides additional points of information and is not designed, intended, licensed or authorized to be used as an application where product failure could lead to injury or loss of life or catastrophic property damage. This warranty shall not apply to any portion of the Platform or other products that have been subject to abuse, misuse, accident, alternation, neglect, unauthorized repair or unauthorized installation, nor of the Platform that has been developed or modified by any party, other than Company or with Company’s written consent. Company shall have no obligation under the above warranty, or otherwise, if the failure of the Platform is attributable to (i) the hardware on which it is operating, third party software not embedded in the Platform or network failures, or (ii) causes that are not the responsibility of Company, (iii) use of the Platform in a manner, or in conjunction with software or equipment, not described in the documentation or any technical guidelines or instructions issued by the Company, or not permitted under this Agreement, (vi) use of a version of the Platform more than two versions behind the current version, or (v) as a result of the gross negligence or intentional misconduct of any user of the Platform (vi) cause beyond the range of the intended use of the Software; (vii) any malware, data breaches and data losses which could not have been avoided by adequate, state-of-the art security in accordance with our then-current security practices. We do not warrant any specifications other than those set out in our documentation nor that the Software will achieve Your intended results, nor that the Software have been developed to meet Your individual requirements. Based on the current state of technology, the Platform is not and can not be fully error-free, or operate without interruption. 
   3.  EXCEPT AS SET FORTH IN THIS SECTION, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WARRANTIES AND REMEDIES PROVIDED IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INTEGRATION, ABSENCE OF VIRUSES OR BUGS OR SATISFACTORY QUALITY, AS TO ANY MATTER REGARDING OR RELATING TO THIS AGREEMENT, ANY SERVICES BY OR ON BEHALF OF COMPANY OR THE PLATFORM.  YOU AGREE THAT YOUR PURCHASE OF THE SOFTWARE IS NOT CONTINGENT ON THE DELIVERY OF ANY FUTURE FUNCTIONALITY OR FEATURES, OR DEPENDENT ON ANY ORAL OR WRITTEN PUBLIC COMMENTS, STATEMENTS OR REPRESENTATIONS WE MADE REGARDING FUTURE FUNCTIONALITY OR FEATURES
   4. Company shall, at its expense, indemnify, defend and hold Licensee harmless from and against any action, claim, suit or proceeding brought by a third party against Licensee and shall pay all costs, liabilities, damages and reasonable attorney fees finally awarded against Licensee, or paid in settlement of such action, claim, suit or proceeding, to the extent such action arises from infringement by the technology underlying the Platform of any valid United States or Israeli patent or copyright. As a condition to such indemnification, Licensee must provide Company with prompt written notice of the claim, permit Company to control the defense, settlement, adjustment or compromise of any such claim and cooperate with Company in the defense and any related settlement action. 
   5. In the event the Platform furnished by Company is in such action, claim suit or proceeding and is held in and of itself to constitute infringement and its use is enjoined, or Company deems in its discretion that such Platform may be held to constitute infringement, Company, within a reasonable time, will, at its option, either (i) secure for Licensee the right to continue using the Platform by suspension of the injunction, by procuring for the Licensee a license, or by some other means, or (ii) replace the Platform with non-infringing goods. The foregoing states the entire liability and obligations of Company and exclusive remedy of Licensee regarding any alleged infringement of patent, copyright, trademark or other intellectual property right by the Platform or part thereof or service provided hereunder. Notwithstanding the above provision, Company shall not defend any action, claim, suit or proceeding and shall assume no liability for:  (i) any claim based on the use of the Platform in combination with any other products, process, equipment or materials not furnished by Company, (ii) any modification of the Platform by a party other than Company; (iii) unauthorized use of the Platform; (iv) trademark infringements involving any marking or branding not applied by or on behalf of Company; or (v) the use of other than the latest release of the Platform, if such claim could have been avoided by use of the latest release.
   6. Licensee shall, at its expense, indemnify, defend and hold Company harmless from and against any action, claim, suit or proceeding brought by a third party against Company and shall pay all costs, liabilities, damages and reasonable attorney fees finally awarded against Company, or paid in settlement of such action, claim, suit or proceeding, to the extent such action arises from Licensee’s breach or alleged breach of this Agreement.  As a condition to the above indemnification, Company must provide Licensee with prompt written notice of the claim, permit Licensee to control the defense, settlement, adjustment or compromise of any such claim and cooperate with Licensee in the defense and any related settlement action.
8. Limitation of Liability. 

7. 1. IN NO EVENT WILL COMPANY OR ITS LICENSORS BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR SPECIAL LOSSES OR DAMAGES (INCLUDING, BUT NOT LIMITED TO, ANY LOSS OR CORRUPTION OF DATA, LOST PROFITS, LOST SAVINGS, BUSINESS INTERRUPTION), RESULTING FROM OR RELATED IN ANY WAY TO USE OF, OR INABILITY TO USE, THE PLATFORM OR OTHERWISE RELATED TO ANY SERVICES BY OR ON BEHALF OF COMPANY OR TO THIS AGREEMENT, INCLUDING IN THE EVENT OF TORTIOUS CONDUCT, BREACH OF CONTRACT OR OTHERWISE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES.  
   2. WITHOUT DEROGATING FROM THE FOREGOING, THE TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT, IF ANY, OF COMPANY, ITS LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND SUPPLIERS, TO LICENSEE, ITS AUTHORIZED USERS OR ANY OTHER PERSON OR ENTITY, IN CONNECTION WITH THE PLATFORM, ANY SERVICES BY OR ON BEHALF OF COMPANY OR THIS AGREEMENT (UNDER ANY THEORY IN LAW), WILL BE LIMITED TO THE AMOUNTS PAID TO COMPANY BY LICENSEE DURING THE PRIOR SIX (6) MONTHS FOR THE ITEM OF SOFTWARE OR SERVICE GIVING RISE TO SUCH LIABILITY. HOWEVER IN THE EVENT THAT THE SOFTWARE IS PROVIDED TO CUSTOMER AT NO COST, SUCH AS DURING A FREE TRIAL OR PROOF OF CONCEPT, THE COMPANY SHALL HAVE NO LIABILITY WHATSOEVER TO CUSTOMER, WHETHER IN CONTRACT, TORT, OR OTHERWISE, FOR ANY DAMAGES OR LOSSES ARISING OUT OF OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE SOFTWARE. THE FOREGOING LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND ARE FUNDAMENTAL ELEMENTS OF THE BARGAIN BETWEEN COMPANY AND LICENSEE. 
   3. THE LIMITATIONS IN THIS SECTION SHALL NOT APPLY TO OUR IP INDEMNIFICATION OBLIGATIONS UNDER SECTION 10; LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE OR THAT OF OUR OFFICERS, EMPLOYEES, CONTRACTORS OR AGENTS; FRAUD OR FRAUDULENT MISREPRESENTATION; OR ANY OTHER LIABILITY WHICH CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW
8. Term and termination

8. 1. This Agreement shall remain in full force and effect as set in the Order Form (the “Subscription Term” or “Term”).   
   2. Should either party Company a material breach of its obligations hereunder and not cure such breach within fourteen  (14) days of written notice of breach from the other party, the other party may, at its option, terminate this Agreement by providing written notice, or immediately upon commencement by or against the other party of proceedings under any bankruptcy, reorganization, insolvency or moratorium law, or any other law or laws for the relief of debtors, or the appointment of any receiver, trustee or assignee to take possession of the other party’s properties, or if the other party makes arrangements with or for the benefit of its creditors or similar arrangements. 
   3. Upon termination of this Agreement (i) all rights and licenses granted under this Agreement will immediately terminate and Licensee shall immediately stop using the Platform, (ii) Licensee shall pay Company all license fees pursuant to the terms of this Agreement; and (iii) Licensee shall return to Company or erase and destroy all copies of the Platform then in its possession and all component parts thereof, and shall promptly confirm to Company in writing, signed by an authorized officer of Licensee, that all such copies of the Platform have been so returned or destroyed and erased. 
   4. Sections 1 (“Restrictions”), 2 (“Ownership; Third Party Platform; Licensee’s Data”), 4 (“Payment”), 5 (“Confidentiality”), 7 (“Limitation of Liability”), 8 (“Term and Termination”), 9 (“Audit”) and 10 (“General”) shall survive the expiration or termination of this Agreement.

9. AUDIT 

The Company may, with seven (7) day prior written notice, access Customer’s premises for the limited purpose of conducting an audit to determine and verify that Customer is in compliance with the terms of this Agreement and the License herein. Customer shall cooperate with the Company in the audit as reasonably necessary. If Company’s audit reveals any underpayment of fees due under this Agreement, Customer shall immediately pay Company the full amount of the underpayment (without derogating from any of the other Company’s remedies). The audit rights set forth in this Agreement shall survive the termination or expiration of this Agreement for a period of three (3) years. During this survival period, the Company shall retain the right to audit the Customer as set above including its records and systems, as applicable, to verify compliance with the terms and conditions of this Agreement.

10. GENERAL  

During the Term and one (1) year thereafter, neither party may solicit or hire the employees or consultants of the other party (or former employees or consultants unless their engagement has been terminated by the other party or at least six (6) months have elapsed since their engagement by the other party) to join such party as employees or consultants, without the other party’s prior written consent, not to be unreasonably withheld.  This Agreement may not be assigned by either party without the prior written approval of the other party, except to a successor of all or substantially all of its business. This Agreement shall apply to and bind the successors and permitted assigns of the parties. The Agreement constitutes the complete understandings between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous understandings relating thereto, whether written or oral. This Agreement may only be amended in writing signed by both parties. Nothing contained in any purchase order, invoice or any correspondence between the parties shall in any way modify, or add any additional terms to, this Agreement. The sections’ headings contained herein are for convenience of reference only and shall not be considered as substantive parts of this Agreement. This Agreement will be governed by the laws of the state of New York, without regard to its choice of law provisions. The exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the federal competent courts in state of New York. If any provision of this Agreement is held to be illegal, invalid or unenforceable, then such provision shall be limited or eliminated to the minimum extent necessary, and the remainder of this Agreement shall continue in full force and effect. The failure of either party to enforce any provision hereof shall not be deemed a waiver of that Party’s right to enforce that provision at a later date. Each party is an independent contractor and not an agent, partner, or joint venture of the other party.  Customer shall make no representations, warranties or guarantees whether express or implied, to third parties with respect to the specifications, features or capabilities of the Company’s Services. Each party is solely responsible for all of the costs and liabilities associated with its business, including without limitation in connection with its employees and representatives. All rights and remedies in the Agreement shall be cumulative and in addition to any other rights or remedies in law or in equity. Except for payments, nonperformance of either party shall be excused to the extent performance is rendered impossible due to a “force majeure”, such as governmental acts, failure of suppliers, hostilities, shortage of labor or materials, or any other causes, circumstances or contingencies, where failure to perform is beyond such party’s reasonable control. All notices and reports under the Agreement shall be in writing and deemed to have been received: (i) five (5) days after the date of mailing if sent by registered or certified mail, postage prepaid, with return receipt requested; (ii) when transmitted if sent by facsimile, provided a confirmation of transmission is produced by the sending machine and a copy of such facsimile is promptly sent by another means specified in this section; or (iii) when delivered, if delivered personally or sent by express courier service. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.