Software Development License

1.       INTRODUCTION.

a.       Use of Software Subject to Agreement.  Your use of our software (referred to collectively as the “Software” in this document) is subject to the terms of this agreement between you and us, as amended from time to time (the “Agreement”).

b.       Acquisition of Licenses.  You acquire Licenses and related services subject to this Agreement by submission of a Purchase Order(s) and payment of amounts due thereunder or by making a credit card payment specifying the type, quantity and License Term of the Software, as a result of which you are entitled to the rights set forth in this Agreement.

c.       Parties.  The term “You” or “you” means the individual, company, entity or organization which is executing or otherwise taking action to be bound by this Agreement; “we” or “us” means Absio Corporation, a Colorado corporation, and “both of us” means both you and us.

2.       ACCEPTING THIS AGREEMENT.

a.       Agreement to Terms.  Your use of our Software is subject to your acceptance of the terms of the Agreement whether by (i) clicking to accept or agree to this Agreement, where this option is made available to you; (ii) by executing a Purchase Order referring to this Agreement; (iii) by paying an invoice referring to this Agreement; (iv) by executing this Agreement; or (v) by actually using the Software.

b.      Acceptance of Terms by a Company, Entity or Organization.  If you are entering into this Agreement on behalf of an entity, company or organization, you represent that you have the authority to bind your company, entity or organization to this Agreement.

 3.       DEFINITIONS.  The following terms used in this Agreement have the specific meanings set forth below:

a.       "Add-on Module" means the portion of the Software, if made available, that adds new functionality to the SDK, but is not required to be installed to ensure continued functioning of Application(s).

b.       "Agreement" is defined in section 1(a).

c.       "Application" is a software application you create which incorporates the Software.

d.       "Broker™" means the portion of the Software, if required, enabling user identity management, storage of public encryption keys, the routing and sharing of Content and, if applicable, the backup storage of Content or private encryption keys.

e.       "Business Days" means days that occur Monday through Friday, exclusive of observed holidays.  If any event occurs during a Business Day, and the response is designated in “Business Days,” the deadline for such event to occur shall be prior to the end of the Standard Support Hours on that number of following Business Days.  For example, an event occurring on Monday (at any time) for which one Business Day response is committed is due to be responded to by 7:00 pm Mountain Time Tuesday.  An event occurring on Monday for which five Business Days response is committed to is due to be responded to by 7:00 pm Mountain Time on the subsequent Monday.

f.       "Business Hours" has the following meaning:  if any event occurs during Standard Support Hours, and the response is designated in “Business Hours,” such time period shall mean actual hours (even if such period extends beyond the normal end of Standard Support Hours).  If any event occurs outside of Standard Support Hours, and the response is designated in “Business Hours,” such time period shall mean actual hours commencing upon the opening of business on the next Business Day

g.       "Customer" means your customer to whom you sell or license the Application(s).

h.       "Developer" means an individual person engaged in the development of Application(s), whether or not such Developer uses the Software directly in the course of his or her work.

i.       "Extraordinary Circumstances" include fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, strikes, lockouts, labor difficulties, generalized internet interruptions (through denial of service, worms, telecommunications problems and the like) or any other cause beyond our reasonable control.

j.       "Feedback" is defined in section 10(b).

k.       "License" means the acquisition of the particular use rights (via payment and agreeing to the terms of this Agreement), and with the rights the responsibilities, provided in this Agreement.

l.       "License Term" means the period for which you have acquired the right to use the Software, pursuant to this Agreement and any Purchase Order.

m.      "Licensee" means you and/or any of your Customer(s) using your Application(s).

n.       "Location" means a physical or virtual location where an Application is used.

o.       "Major Release" means a change to the Software which requires a change to the Application to consume.

p.       "Minor Release" means a change to the Software provided according to a normal development cycle, which does not generally require a change to the Application to consume.

q.       "Patch Release" means a change to the Software provided outside the normal development cycle, which does not generally require a change to the Application to consume.

r.       "Purchase Order" means a separate document itemizing the Software you are licensing pursuant to this Agreement, the License Term and the cost of such License(s).

s.       "Sale" or "sell" and other similar terms, when used in connection with the marketing and distribution of any of the Software shall mean the licensing of such materials, and shall not be deemed for any purpose to mean a transfer of title or other rights of ownership to the Software.

t.       "SDK" means the portion of the Software enabling, among other functions, and as applicable to your Application(s), user registration, user or device authentication, private /public encryption key generation, Content encryption/decryption, Content access and use controls, and the obfuscated storage of encrypted Content and encryption keys.

u.       "Software" is defined in section 1(a).

v.       "Standard Support Hours" means from 8:00 am to 5:00 pm, Mountain Time, Monday through Friday, exclusive of observed holidays.

w.       "Trial License" is defined in section 4(c)(iii).

x.       "Trial Purchase Order" provides the terms and conditions of a Trial License.

 y.       "Updates" means Major Releases, Minor Releases and Patch Releases.

4.       LICENSE FROM US.

a.       Grant of License – Usage in General.  Subject to this Agreement, we give you a personal, worldwide, non-exclusive right to use the Software in object code form only (except as otherwise specifically set forth below) for the purposes set forth below, depending on the particular license you have acquired.  You may use the Software solely for the purpose of designing, developing and testing your Application(s) and (as subject to the provisions below) using such Application(s) internally or making them accessible or distributing them to third parties.

You may distribute the Application(s) you make containing our Software subject to the limitations of and type of use set forth below and in any Purchase Order, and subject to the following conditions:  (i) you may not permit further redistribution of our Software by your Customer(s); (ii) you must distribute your Application(s) under a written agreement that prohibits reverse engineering, decompilation or disassembly of the Application(s) and requires your Customer(s) of the Application(s) to abide by the conditions stated in this Agreement; and (iii) without our consent, or as required below, you may not use our name, logo or trademarks to market your Application(s).

b.       License Grant – Length of Term.  The provisions of this Agreement are effective unless terminated.  Following the expiration of the applicable License Term, you may no longer deploy new units of Application(s) incorporating the Software.  Unless otherwise expressly prohibited by this Agreement, however, your Customer(s) continue to have the right to use Application(s) incorporating the Software supplied to them prior to the expiration of the related License Term.  Any use of the Software beyond the scope of this Agreement or any Purchase Order is subject to payment of additional License fees.

 c.       Licensing Models.

i.       In General.  The Software includes the SDK and may include Add-on Modules and Broker™, if applicable. Your License requirements will be determined by the number of your Developers and whether the Application(s) are installed in a single Location or multiple Locations. The purchase price(s) for your License to the Software are specified on a Purchase Order.

ii.       Trial Option.  We may supply “Trial Licenses” for evaluation by you prior to purchasing a paid License. If your Software is designated as supplied under a Trial License, the terms of that Trial License will be specified on a Trial Purchase Order.

iii.       U.S. Government End Users.  The Software is “Commercial Computer Software” as defined in DFARS 252.227-7014, and “Restricted Computer Software” as defined in FAR 52.227-14, Rights in Data-General, including Alternate III, as applicable, with “Limited Rights,” in accordance with this Agreement’s terms and conditions.  We must be notified in advance of any license grants to United States Federal Governmental entities.

5.       LIMITATION ON YOUR USE.

a.       Restrictions on Use.  You may not (and you may not permit anyone else, on your behalf or otherwise to) copy, disassemble, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof.

b.      Compliance with Laws.  You agree to use the Software only for purposes, and in a manner, permitted by (i) this Agreement and (ii) any applicable law, regulation or generally accepted practices or guidelines in the relevant jurisdictions including, without limitation, any regulations of the United States Bureau of Export Administration and other applicable governmental agencies (including all applicable US export restrictions).

c.       Restrictions on Sublicense or Assignment.  This Agreement and any license granted under this Agreement are personal to you, and do not include the right to sublicense your rights under this Agreement to any third party.  You may not transfer or assign, by operation of law or otherwise, this Agreement or your License to any third party without our prior written consent, which may be withheld in our sole discretion for any reason or no reason.  Notwithstanding the foregoing, you may permit your employees, consultants or other third-party service providers (collectively, “Personnel”) to access and use the Software on your behalf; provided that you shall be responsible for ensuring that your Personnel comply with this Agreement and any applicable end user license agreement or terms and conditions to which they assent.  If you acquire a third party entity or acquire substantially all the assets or equity of a third party entity, or are acquired by a third party, in each case, whether by merger, change in control, sales of assets, consolidation or otherwise, such event shall be considered an assignment of this Agreement for this purpose.  Any assignment or attempted assignment in violation of this Agreement shall be of no effect, and shall constitute a breach of this Agreement and result in the immediate and automatic termination of your license rights under this Agreement; any renewal of such rights shall, if then available, be at our sole discretion, and will be on terms and conditions applicable at the time of such renewal.  You may not create a library that exposes or wraps functionality of the Software to a non-licensed party.

d.       Additional Restrictions.

i.       Maximum Number of Applications per License.   Your License permits you to incorporate our Software into Applications you build.  Your Purchase Order(s) will specify the maximum number of Applications you may build with a single License.

ii.       Building Custom Applications for Multiple Customers.  If you build custom/bespoke Applications for multiple Customers, you must purchase a separate License for each Customer.

 6.       SUBSEQUENT OR PREVIOUS VERSIONS OF THE SOFTWARE; MULTIPLE PHYSICAL COPIES.

a.       Future Versions.  The License granted to you under this Agreement is for the current version of the Software as of the time we make such version available to you under this Agreement.  We may release future versions of the Software under this Agreement or a different agreement.  Nothing in this Agreement is a commitment to you of compatibility between the Software and any future versions of the Software. This Agreement shall apply to any such updated Software made available to you except as otherwise expressly agreed in connection with such updated Software.

b.      Upgrades of Previous Versions.  If the Software provided to you is an upgrade or revised version of the Software previously provided to you under this Agreement or a predecessor agreement, you may not loan, rent, lease or otherwise transfer the original non-upgraded Software to another user or a separate computer.  If the Software is an upgrade of a component of a package of software programs that you licensed as a single product, the Software may be used and transferred only as part of that single product package and may not be separated for use by another user or on a separate computer.

c.       Multiple Physical Copies.  You may receive the Software in more than one medium.  Receipt of more than one copy of the Software (either on physical media or by multiple downloads or otherwise) does not entitle you to any additional rights to the Software.  Your rights to use the Software derive from this Agreement and the License related hereto, not from any rights to ownership of tangible media, which if provided is only provided for your convenience.

7.       SUPPORT OBLIGATIONS.  The following provisions set forth your rights concerning maintenance and support of the Software.  Any such services are provided only during the License Term.

a.       General.  Our support obligations for the Software are comprised of the following:

i.       Updates.  We will make available to you, at no additional charge, all Updates to the Software which we make generally available to our customers during your License Term.

ii.       Versions Supported.  We will not be responsible for support services for any version of the Software other than the current and previous Major Release of the Software, provided that we will support each Major Release (and the latest Minor Release(s) and Patch Release(s) made available with respect thereto) for a period of not less than one year from initial release of the Major Release.

iii.       Problem and Error Resolution.  We will investigate all potential errors related to the Software’s nonconformance to any documentation we provide, so long as you have notified us in writing (including via email and via submission to a support site or portal we make available to you) during the License Term.  We will make commercially reasonable attempts to substantiate the existence of the problem or error, evaluate the seriousness of the problem’s effect on you and provide a workaround or resolution within the time frame established in the Error Reporting and Priority Guidelines.  This does not guarantee that the resolution will include an update to the Software that will resolve or fix the reported issue.

iv.       Telephone Consultation.  We will provide reasonable telephone consultation to assist in the implementation and utilization of the Software during our Standard Support Hours.  We may require that you submit a support request through a web support portal, depending on the classification of assistance required.

b.      Error Reporting and Priority Guidelines.

i.       Contacting our Support.  Requests, other than bug submissions, may be made by telephone at (720) 836-1225, or via email at support@absio.com.

ii.       Submitting Bugs.  Bug submissions must be made to our submission portal at https://github.com/Absio/absio-secured-container/issues.

iii.       Classification of Errors.  Upon receipt of requests for support, we classify support calls on the following basis:

 
 

Priority

1

2

3

 

4

5

Priorities Assigned Under These Guidelines

Licensing issues related to deployment of the Software

Produces an emergency situation in which the Software is inoperable, or fails catastrophically

Produces a detrimental situation in which performance (throughput or response) of the Software degrades substantially under reasonable loads, such that there is a severe impact on use; one or more main functions or commands is inoperable; or the use is otherwise significantly impacted; licensing issues not related to the deployment of the user’s product.

Produces an inconvenient situation in which the Software is usable, but does not provide a function in the most convenient or expeditious manner or produces incorrect results, and the user suffers little or no significant impact.

Any other support issue, including requests for enhancement of documentation changes.

 

iv.       Response Time.  We shall, after receipt and classification, use commercially reasonable efforts to respond during Standard Support Hours to each notification as indicated below, with a resolution of the issue as indicated below:

 
 

Priority

1

2

3

4

5

Receipt Acknowledged

4 Business Hours

4 Business Hours

4 Business Hours

4 Business Hours

4 Business Hours

Resolution Goal

1 Business Day – correction to be issued when tested and available

2 Business Days – correction to be issued when tested and available

Correction to be issued when tested and available

Correction to be included in a future release, on a business justifiable basis

Request may or may not be include in a future release, at our discretion

 

 

  • ·         Receipt Acknowledged:  time for our operational staff to respond to your notification and resolution commences.

  • ·         Resolution Goal:  if availability is not restored by this time, the issue will be escalated to a manager.

  •  

THESE RESPONSE TIMES AND RESOLUTION GOALS ARE NOT APPLICABLE TO TRIAL LICENSES.

c.       Conditions for Support Provided by Us.  We provide a second level of support for those problems that you cannot reasonably be expected to resolve for yourself.  Accordingly, our performance under the above criteria is conditioned upon your compliance with the following conditions of support:

i.       You must provide (or at least disclaim any requirement of ours to provide) first line support to your users (and your Customer(s)’ users);

ii.       You must ensure that the Software is used only in combination with other software, devices or hardware recommended or specified by us as being compatible with the Software, and ensure a stable network environment with adequate capacity.  In addition, you are expected to provide a technically qualified single point of contact for coordination of support with us;

iii.       You must install (or cause your Customer(s) to install) all Updates we make available to you.  We are not responsible for support services with respect to the Software if you (or the Customer(s)) have refused to permit updating of the Software by all applicable Minor Releases and Patch Releases or if you have not ensured that hardware and network services are correctly configured and operating according to specifications, and operating system software and other third party software is current, and has all manufacturer/supplier-recommended updates and patches;

iv.       You must provide us with reasonable access (remote or on-site, as needed by us) to the equipment, the Software and all relevant documentation and records related to a reported issue, and such reasonable assistance as we may request, including sample output and other diagnostic information, in order to assist us in providing support;

v.       We are not responsible for support services to the extent arising in connection with Extraordinary Circumstances.

 d.      Services not Included.  Support services do not include any of the following:

i.       Custom programming services;

ii.       On-site support, including installation of hardware or any third party software;

iii.       Support of any Software not covered by this Agreement; or

iv.       Training.

8.       PUBLICITY.  You agree to be identified as a customer of ours and agree that we may refer to you by name, trade name and trademark, if applicable, and may briefly describe your business in our marketing materials and website.  Your hereby grant us a license to your name and any of your trade names and trademarks solely in connection with the rights granted to us pursuant to this section.

9.       PAYMENT.

a.       Payment.  You agree to pay all charges, recurring fees, applicable taxes and other charges at the rates in effect for the billing period in which those charges are incurred based on the applicable License(s) and/or Purchase Orders.  All payments shall be made at our address indicated in this Agreement or at such other address as we may from time to time indicate by proper notice hereunder.  All invoices are due and payable within thirty (30) days of our date of invoice.  Interest shall be payable at the rate of one and one-half percent (1.5%) per month or at the maximum rate permitted by law, whichever is less, on all overdue and unpaid invoices until paid in full.  All fees are denominated and to be paid in United States Dollars and are exclusive of any applicable taxes.  You shall pay, indemnify and hold us harmless from all sales, use, value added or other taxes of any nature, other than personal property or taxes on or measured by our net or gross income, including penalties and interest, and all government permit or license fees assessed upon or with respect to any fees.

b.      Billing Disputes.  You must inform us of any billing problems or discrepancies within ninety (90) days after they first appear on your account statement or invoice.  If you do not bring them to our attention within ninety (90) days, you agree that you waive your right to dispute such problem or discrepancies.

c.       Consequences of Nonpayment.  In the event we are unable to collect payment from you in accordance with this Agreement, in addition to reserving all other rights we may have hereunder, this Agreement shall terminate and the provisions of Section 11(c) shall apply.

 10.   PROPRIETARY RIGHTS.

a.       Ownership of Intellectual Property.  We (or our licensors) own all legal right, title and interest in and to the Software, including any intellectual property rights that subsist in the Software (whether those rights happen to be registered or not, and wherever in the world those rights may exist).  The Software may contain information that is confidential to us (including, without limitation, any information so designated) and you shall not disclose such information to any third party without our prior written consent.

b.      ContentSuggestions.  You may voluntarily provide suggestions, comments or other feedback (“Feedback”) to use with respect to items or information provided by us under this Agreement.  We are not required to hold your Feedback in confidence, and your Feedback may be used by us for any purpose without obligation of any kind.  Incorporation of your Feedback into our materials or products does not affect our exclusive ownership of such materials by us.

c.       Notices/Protection of Proprietary Rights.  You may not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) that may be affixed to or contained within the Software.  In using the Software, you will not use any trademark, service mark, trade name, or logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos.  Nothing in this Agreement gives you a right to use any of our trade names, trademarks, service marks, logos, domain names, and other distinctive brand features without obtaining, in each instance, our prior written consent.

11.     TERM.

a.       Term.  This Agreement is effective until terminated as set forth in this section.

b.      Termination for Cause.  Either party may terminate this Agreement for cause upon thirty (30) days written notice in the event the other party breaches a material provision of this Agreement, which breach is not cured within such thirty (30) day period.

c.       Effect of Termination.  Upon any termination of this Agreement, your right to use the Software terminates.  Notwithstanding the foregoing, the following provisions of this Agreement survive any termination:  section 5, “Limitation on Your Use;” section 10, “Proprietary Rights;” section 12, “Exclusion of Warranties;” section 13, “Indemnification”; section 14, “Limitation of Liability;” section 16, “General Terms”.

12.    EXCLUSION OF WARRANTIES.  THE SOFTWARE IS MADE AVAILABLE “AS IS, AS AVAILABLE.”  WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND RELATING TO THE SOFTWARE, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  WE DO NOT PROMISE THAT YOUR USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE.  YOU ALONE SHALL BEAR THE RISK AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM YOUR USE OF THE SOFTWARE.  WE EXPRESSLY DISCLAIM ANY WARRANTIES THAT MAY BE IMPLIED OR OTHERWISE ARISE FROM USAGE OF TRADE OR COURSE OF DEALING, OUR COURSE OF PERFORMANCE.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.

 13.    INDEMNIFICATION.

a.       By Absio.  We shall indemnify, hold harmless and defend you, and your shareholders, directors, officers, employees, agents and/or representatives, from and against any and all actions, disputes, proceedings, claims, damages, expenses, liabilities, losses and costs, including reasonable attorney fees, arising from or relating to any claim that the Software infringes or misappropriates any United States intellectual property right.  We will have no obligations under this section for any claim that results from:  (i) any modification, alteration or change to the Software by you or by a third party on your behalf without our written consent; (ii) your use of the Software in a manner not authorized by this Agreement, or otherwise in writing by us; (iii) the unlicensed or unauthorized use or distribution by you of the Software; (iv) use of a superseded or altered release of the Software if infringement would have been avoided by the use of a current unaltered release of the Software that we provide you at our expense; or (v) any combination of the foregoing.

b.      By You.  You agree to indemnify, hold harmless and defend us, and our shareholders, directors, officers, employees, agents and/or representatives, from and against any and all actions, disputes, proceedings, claims, damages, expenses, liabilities, losses and costs, including reasonable attorney fees, arising from or relating to any use of the Software by you or your Customers in violation of this Agreement, or any third party claims made against us based upon use of the Software by you or your Customers.

c.        General Indemnification Terms.  The indemnifying party will defend at its expense any action described in this Indemnification section brought against any indemnified party and will pay any costs and damages finally awarded against the indemnified party in such action or in settlement of such claim; provided that the indemnified party shall not be required to pay any settlement to which it has not consented, which consent shall not be unreasonably withheld.  As a condition to receiving any such indemnification, the indemnified party must promptly notify the indemnifying party in writing of such claim and permit the indemnifying party to control the defense of any such claim, which consent shall not be unreasonably withheld.  The indemnified party shall have the right, at its own expense, to participate in the defense of any such claim through counsel of its own choosing.  The indemnified party shall cooperate reasonably, at the indemnified party’s expense, with the indemnifying party in defense of such claim.

14.   LIMITATION OF LIABILITY.  EXCEPT FOR OUR INFRINGEMENT OBLIGATIONS HEREUNDER, OUR CUMULATIVE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY YOU PURSUANT TO ALL PURCHASE ORDERS IN EFFECT WITHIN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE ACT GIVING RISE TO THE LIABILITY.  IN NO EVENT WILL WE BE LIABLE FOR DIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUES, DATA, USE, ANY OTHER ECONOMIC ADVANTAGE OR COST OF COVER INCURRED BY YOU OR ANY CUSTOMER ARISING OUT OF THIS AGREEMENT, UNDER ANY THEORY OF LIABILITY, WHETHER IN AN ACTION IN CONTRACT, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL OR EQUITABLE THEORY, EVEN IF WE KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.

15.   ACKNOWLEDGEMENT OF ALLOCATION OF RISK.  The Software provided to you hereunder is to be incorporated by you into Applications over which we have no control, provided to Customers we have no right to evaluate, and with whom we have no right to communicate or negotiate.  You, and not we, therefore, have essential control over circumstances that will enable you to assess and mitigate risk associated with the use of the Software.  The provisions of this Agreement are designed to allocate risk consistent with these realities.  You accordingly acknowledge that you understand that an essential purpose of the exclusion of warranties, the indemnification and limitation of liability provided in this Agreement is allocation of risks between both of us, which allocation of risks is reflected in the applicable fees and other arrangements between both of us in the Agreement, and that we would not be willing to enter into this Agreement with you and license the Software to you if we were required to bear any additional risk.

16.   GENERAL TERMS.

a.       Waiver, Amendment or Modification. The waiver, amendment or modification of any provision of this Agreement or any right, power or remedy hereunder shall not be effective unless in writing and signed by authorized representatives of the parties. The terms of this Agreement may not be amended or changed by the terms of any purchase order, service order, acknowledgment, invoice or similar document even though a party may have signed or accepted such document.  No failure or delay by either party in exercising any right, power or remedy with respect to any of the provisions of this Agreement shall operate as a waiver thereof.

b.      Severability. In the event that any provision of this Agreement is found by an arbitrator or court of competent jurisdiction to be invalid, void or unenforceable, the parties agree that unless it materially affects the entire intent and purpose of the Agreement, the invalidity, voidness, or unenforceability shall affect neither the validity of this Agreement nor the remaining provisions herein, and the provision in question shall be deemed to be replaced with a valid and enforceable provision most closely reflecting the intent and purpose of the original provision.

c.       Notices. Any notice or other communication required or permitted hereunder shall be in writing. Notice shall be deemed given on the date of receipt - as evidenced in the case of electronic or written delivery confirmation.  Notices to each party shall be sent to the address set forth for each party on the most recent Purchase Order, or to such other place as such party may designate by written notice to the other party.

d.      Limitations, Governing Law, Forum Selection. Any claim for breach of contract, negligence, or other alleged wrongful act arising out of this Agreement must be commenced not later than one (1) year after the alleged breach, negligent act, or other wrongful act.  The validity, construction and performance of this Agreement shall be governed by and construed in accordance with the United States federal common law.  The sole and exclusive jurisdiction for the resolution of any dispute or claim arising out of or under this Agreement shall be the United States federal courts, and the parties expressly consent to the personal jurisdiction and venue in those courts located in Denver, Colorado for this purpose.

e.      Relationship. Nothing herein shall be construed as creating a partnership, employment relationship, or agency relationship between the parties, or as authorizing either party to act as agent for the other. Each party shall maintain its separate identity.

f.        Entire Agreement. This Agreement, including any Purchase Orders, constitutes the final and exclusive statement of the terms of the agreement between the parties concerning its subject matter, and supersedes any and all prior or contemporaneous oral or written agreements, proposals, representations, statements, understandings between the parties concerning its subject matter. The parties expressly state that no information or materials aside from the terms specifically stated in this Agreement, including without limitation, advertising and marketing materials, statements and representations of salespeople or other individuals, form or are otherwise a part of the basis of the parties’ bargain.

g.       Other Remedies. Any and all rights and remedies of a party upon the other party’s breach of or default under this Agreement (whether expressly conferred by this Agreement or otherwise) will be deemed cumulative with and not exclusive of any other right or remedy conferred by this Agreement, and the exercise of any one remedy will not preclude the exercise of any other.

h.      Binding Upon Successors, Permitted Assigns. This Agreement will be binding upon, and inure to the benefit of, the permitted successors-in-interest or assigns of a party hereto, subject to the restrictions set forth in section 5(c) herein.

i.         No Third Party Beneficiary. This Agreement is made and entered into for the sole protection and benefit of the parties hereto and is not intended to convey any rights or benefits to any third party, nor will this Agreement be interpreted to convey any rights or benefits to any person except the parties hereto.

j.        Verification, Audit Rights. At our request, you shall promptly furnish us with written certification verifying that the Software is being used in accordance with this Agreement, including, if applicable, the number of your developers, the number of Installed Instances, the number of Applications being built with the Software, and the number of Customers for whom you may be building custom/bespoke Applications.  You shall give us reasonable access to your books, records and systems solely to verify that the Software is being used pursuant to this Agreement.