System Initiative

--- title: Terms & Conditions --- # SOFTWARE LICENSE AGREEMENT TERMS AND CONDITIONS Welcome, and thank you for your interest in System Initiative, Inc. (“**System Initiative**”) and System Initiative’s server and database management software. Please read these Software License Agreement Terms and Conditions (“**T&Cs**”) carefully. To access our Software, the Customer must execute an ordering document with System Initiative that references these T&Cs or mutually executed ordering document that references these T&Cs is hereafter referred to as an “**Order**”). As part of the ordering process, you must identify the applicable entity that is designated as the customer (“**Customer**”). Each Order will also identify which of System Initiative’s commercially available downloadable software product(s) may be used by Customer pursuant to such Order (the “**Software**”) and the applicable deployment model. Currently, permitted deployment models for Software licenses that can be Ordered under this Agreement are “Server” (i.e. for installation on Customer’s own server(s)) or “Bring Your Own Cloud (BYOC)” (i.e. for installation in Customer’s hosted environment on a third-party cloud service). For clarity, all references to “Software” in this Agreement include any bug fixes, patches, major or minor releases, changes, enhancements, or modifications to the Software that System Initiative makes available to Customer as part of Support and Maintenance under the applicable Order (“**New Releases**”). These T&Cs, together with the Order(s), any applicable Support Policy (as identified in each Order), and any other policies and terms referenced in the Documentation for the Software, the terms of which are hereby incorporated by reference, collectively constitute the “**Agreement**”. THIS AGREEMENT SETS FORTH THE LEGALLY BINDING CONTRACT BETWEEN SYSTEM INITIATIVE AND CUSTOMER THAT GOVERNS USE OF THE SOFTWARE AND IS LEGALLY BINDING ON THE PARTIES. BY CLICKING “I ACCEPT,” OR EXECUTING AN ORDER, YOU REPRESENT AND WARRANT THAT YOU: (1) WISH TO USE THE SOFTWARE ON BEHALF OF, OR WITHIN YOUR CAPACITY AS, A REPRESENTATIVE, AGENT, OR EMPLOYEE OF THE ENTITY THAT IS DESIGNATED AS THE CUSTOMER AT THE TIME OF REGISTRATION OR SUBMISSION OF THE APPLICABLE ORDER, AND (2) HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE CUSTOMER. BY CHECKING “I ACCEPT”, EXECUTING OR SUBMITTING AN ORDER, OR OTHERWISE AGREEING TO BE BOUND BY THE TERMS HEREOF, CUSTOMER IS ACCEPTING AND AGREEING TO BE BOUND BY OF ALL OF THE PROVISIONS OF THIS AGREEMENT. > If System Initiative has made the Software (or any portion thereof) available to Customer under a “unpaid” license tier or otherwise on a “no cost”, “free trial”, “pilot” or “pre-release” basis, then unless expressly indicated in the applicable Order and notwithstanding anything to the contrary in this Agreement: (i) System Initiative will be free to terminate or suspend Customer’s license to such Software for any reason at any time and without liability of any kind, and Customer agrees to promptly cease using such Software upon request, and (ii) System Initiative’s limited warranties set forth in Section 8, System Initiative’s obligations under Section 7, and any Support Policies will not apply to such Software. Notwithstanding any other provision of this Agreement, any such access or Software is provided on an “AS IS” and “AS AVAILABLE” basis without warranty or support of any kind, express or implied. IF CUSTOMER SUBSEQUENTLY PURCHASES A LICENSE TO SUCH SOFTWARE, CUSTOMER’S TRIAL OR PRE-RELEASE ACCESS SHALL IMMEDIATELY TERMINATE AND CUSTOMER EXPRESSLY AGREES THAT, UNLESS CUSTOMER HAS A SEPARATE SIGNED AGREEMENT GOVERNING CUSTOMER’S ACCESS TO AND USE OF THE SOFTWARE, THIS AGREEMENT, AND THE TERMS AND CONDITIONS HEREIN, SHALL GOVERN CUSTOMER’S USE OF SUCH VERSION OF THE SOFTWARE. This Agreement is subject to occasional revision, and System Initiative reserves the right to modify fees for accessing or using the Software in the future. See Section 9.5 of these T&Cs for further information about changes to these T&Cs. Customer acknowledges and agrees that the Software is intended for use in a business or commercial capacity, and is not intended for use by consumers or in a personal capacity. Customer hereby represents and warrants to System Initiative that it is entering into this Agreement, and intending to use the Software, solely in a business or commercial capacity. ## 1. OVERVIEW; REGISTRATION **1.1 Generally.** This Agreement governs Customer’s use of and access to the Software and any related Support and Maintenance that is set forth in one or more Order(s). The Software and its permitted use are further described in System Initiative’s standard, published documentation for the Software (which may be accessible via System Initiatives’ website or from within System Initiative’s application), as may be updated by System Initiative from time to time in its sole discretion (the “**Documentation**”). An Order may also identify other limitations on use of the Software, such as the number of resources that the Software can be connected to or other applicable restrictions on use (collectively, the “**Use Limitations**”). For clarity, System Initiative will not be required, by virtue of this Agreement or otherwise, to provide to Customer any other software, services, features or functionality which are not expressly covered by an Order. Additionally, Customer acknowledges that this Agreement does not apply to (i) any of System Initiative’s software-as-a-service or cloud based offerings that are hosted by or on behalf of System Initiative, or (ii) any software that System Initiative expressly licenses under different license terms. For clarity, System Initiative’s “BYOC” Software offering is intended to be hosted on behalf of Customer in Customer’s hosting environment with a third party service provider, and accordingly, notwithstanding the foregoing subpart (i), Customer and System Initiative acknowledge and agree that the terms of this Agreement will apply to Orders for BYOC Software. **1.2 Accounts.** Customer may be asked to create an account with System Initiative to place Orders or download Software (each, an “**Account**”) and Customer agrees to provide all information as prompted in the account registration process. Customer represents and warrants that: (i) all required Account registration information submitted is truthful and accurate; and (ii) Customer will maintain the accuracy of such information. Customer is responsible for maintaining the confidentiality of all Account login information and is fully responsible for all activities that occur under Customer’s Account. System Initiative will collect and use any information provided by Customer as part of the Account creation process in accordance with its Privacy Policy, currently located [http://auth.systeminit.com/legal/privacy](http://systeminit.com/legal/privacy). **1.3. Authorized Users.** Customer will only permit the Account and the Software to be accessed by Customer’s employees and contractors that are authorized by Customer to access the Software or Account for Customer’s internal business purposes (“**Authorized Users**”), provided that Customer shall remain liable for all acts and omissions of such users. Customer will use reasonable efforts to prevent any unauthorized access or use of the Account and the Software. Customer agrees to immediately notify System Initiative of any unauthorized use, or suspected unauthorized use, of the Account or Software. Additionally, if there is unauthorized access or use by anyone who obtained access directly or indirectly through Customer’s Account, Customer will also take all steps reasonably necessary to terminate the unauthorized access. System Initiative will not be liable for any loss or damage arising from any unauthorized use of the Account or Customer’s failure to comply with the above requirements. Customer will ensure and be solely responsible for its Authorized Users’ compliance with the terms of this Agreement and use of the Software, including what Customer’s Authorized Users do with Customer’s data, for all fees incurred by Authorized Users, and for enforcing any of Customer’s internal policies regarding its Authorized Users’ use of the Software. ## 2. Software License and Restrictions **2.1. Software License.** Subject to Customer’s ongoing compliance with this Agreement (including timely payment of all applicable fees), System Initiative grants Customer a non-exclusive, non-transferable, non-sublicensable license, during the applicable License Term (as defined in Section 3.1 below), to download, install and use the Software and Documentation solely for Customer’s own, internal business purpose and in accordance with the Documentation and the applicable Use Limitations. **2.2. Delivery.** System Initiative will make the Software available for download (and provide license keys, as applicable) after System Initiative receives payment of any applicable pre-paid fees (as identified in the Order). All deliveries under this Agreement will be electronic. Customer is responsible for accessing its Account to determine that System Initiative has received payment and that the Order is processed. For the avoidance of doubt, Customer is responsible for installation of the Software. **2.3 Integration with the Customer Environment.** Customer is solely responsible for ensuring that its systems meet the hardware, software and any other applicable system requirements for the Software as specified in the Documentation. While System Initiative may make Software available to Customer to enable Customer to connect and integrate the Software with Customer’s servers, cloud-hosting environments, and/or resources, as applicable (collectively, the “**Customer Environment**”), Customer will be solely responsible for integrating and implementing the Software with the Customer Environment. Customer is solely responsible for determining if a Customer Environment is appropriate for use with the Software and for obtaining all necessary consents, permissions, approvals, or licenses to access and use the Customer Environment any data, information, materials and content stored in or accessible via such Customer Environment (collectively, “**Customer Data**”). Customer assumes all risks associated with use of Customer Data and any Customer Environment, and for any issues caused by Customer’s use of any third party hardware, software or services not provided by System Initiative. For clarity, Customer will be solely responsible for backing up Customer Data and ensuring any Customer Data is adequately encrypted or protected. **2.4. Restrictions.** The Software and Documentation are made available to Customer solely for its own internal business purpose and use. To the maximum extent permitted by applicable law, Customer shall not, directly or indirectly, and shall not authorize any person to: (i) decompile, disassemble, reverse engineer or attempt to reconstruct or discover any source code, structure, ideas, algorithms, or other hidden or non-public elements of (provided that the foregoing shall not apply if, but only to the limited extent that, applicable law expressly prohibits the same and requires System Initiative to give Customer a limited right to do so to render the Software interoperable with other software, provided however that in this case, Customer must first request such source code from System Initiative, and System Initiative may in its sole discretion either provide such source code to Customer or permit Customer to derive such source code itself and impose reasonable conditions on the use of such source code); (ii) translate, adapt, or modify; (iii) write or develop any program based upon or incorporate into any product or service Customer provides to a third party; (iv) use in any manner for the purpose of developing, distributing or making accessible products or services that compete with; (v) sell, sublicense, transfer, assign, lease, rent, distribute, or grant a security interest in any rights in, (vi) make the available on a service bureau basis, or otherwise access or use for the benefit of a third party; (vii) allow unauthorized persons to have access to; (viii) transmit unlawful, infringing or harmful data, content or code to or from; (ix) interfere with any license key mechanism in or otherwise circumvent any mechanism intended to limit use of; (x) alter or remove any trademarks or proprietary notices contained in or on; (xi) perform or publish any performance or benchmark tests or analyses relating to; or (xii) otherwise use except as expressly permitted hereunder, in each case of (i) – (xii), in whole or in part, the Software and Documentation. **2.5. Third Party Open Source Software.** Notwithstanding anything to the contrary set forth herein, the Software may include third party open source software. To the extent required by the applicable third party open source licensor, such third party open source will be governed by the applicable open source licenses and terms as linked to or provided [here](https://auth.systeminit.com/legal/oss). **2.6. Support and Maintenance.** Each Order will identify if it includes Support and Maintenance, and if so, which Support and Maintenance Policy is applicable to the Order (“**Support Policy**”). During the License Term for each Order that includes Support and Maintenance, System Initiative will use commercially reasonable efforts to provide Support and Maintenance for the Software in accordance with the applicable Support Policy. As used herein, “**Support and Maintenance**” means System Initiative’s support and maintenance services for the Software, as further described in the applicable Support Policy. Support and Maintenance for Software includes access to New Releases, if and when made generally commercially available to System Initiative’s other users of the Software that have purchased the same Support and Maintenance package. ## FEES; PAYMENT **3.1. License Term and Renewals.** The duration of Customer’s initial license term for the Software set forth in each Order will be as set forth in such Order (“**Initial License Term**”). Unless otherwise indicated in the Order, the License Term will automatically renew for additional consecutive terms (typically monthly or annually) at the cadence set forth in the Order (as applicable, a “**Renewal License Term**”) until terminated or not renewed by Customer or System Initiative as set forth below. The Initial License Term of an Order, together with any applicable Renewal License Term(s) for such Order, are collectively referred to as the “**License Term**.” All renewals are subject to the applicable Software and/or Support and Maintenance continuing to be offered and will be charged at System Initiative’s then-current published rates. **3.2. Canceling Renewing Subscriptions.** Unless otherwise set forth in an Order, either party may opt not to renew an Order by providing the other party with at least twenty (20) days’ notice of its intent not to renew. Customer should send notices of non-renewal to [si-sales@systeminit.com](mailto:si-sales@systeminit.com) or in the billing section on their Account. If either party opts to not renew an Order as set forth above, then Customer will continue to have access to the Software and Support and Maintenance as set forth in the Order until completion of Customer’s then-current License Term, provided that Customer has timely paid all applicable fees and remains in compliance with the terms of this Agreement. **3.3. Fees.** Customer agrees to pay to System Initiative any fees for each the Software and Support and Maintenance that Customer purchases or uses (including any overages based on consumption or usage) in accordance with the pricing and payment terms set forth in the Order, as may be updated for Renewal License Terms in accordance with this Section. For licenses that automatically renew, the billing cycle (typically monthly or annually) will be indicated in the applicable Order, and in such case, the applicable fees for any Renewal License Term will be charged at System Initiative’s then-current published rates. Unless otherwise expressly set forth in an Order, any overage fees will be billed to Customer monthly in arrears. Customer will be billed for all amounts due under this Agreement using the billing method Customer selects through its Account management page or other Customer-provided payment method on file. Customer must provide current, complete, and accurate information for Customer’s billing account and promptly update all information to keep Customer’s billing account current, complete, and accurate. Fees paid by Customer are non-refundable, except as provided in this Agreement or when required by applicable law. Customer must terminate any automatically renewing License Term before it renews in accordance with this Agreement in order to avoid billing of the recurring fees to Customer. By choosing an automatically renewing subscription plan, Customer acknowledges that the Order has a recurring payment feature and Customer accepts responsibility for all recurring charges prior to termination. If there are no valid payment methods on file for Customer, System Initiative may send Customer invoices for the balance of any amounts due. **3.4. Increased Scope of Use.** During Customer’s License Term, Customer may increase its Use Limitations (e.g., to add additional resources) by placing a new Order. Any increases to Customer’s Use Limitations or actual usage that exceeds the Use Limitations will be subject to additional fees, as set forth in the applicable Order, and Customer acknowledges that the Software may include software protection mechanisms designed to track usage and notify System Initiative of Customer’s actual usage. Customer agrees to promptly notify System Initiative in writing if its actual usage of the Software exceeds the Use Limitations set forth in the applicable Order. Customer shall include in such notice the amount of excess use and the date on which such excess use began. Without limiting System Initiative’s rights or remedies under this Agreement, System Initiative may invoice Customer for such excess use in arrears. **3.5. Taxes.** Prices do not include, and Customer must pay or reimburse System Initiative for, all federal, state, local, sales, use, value added, excise, or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes based on System Initiative’s net income). If System Initiative has a legal obligation to pay or collect any such tax, System Initiative will calculate the tax based upon the billing information it has about Customer and charge Customer that amount (which, if Customer’s billing information is incomplete or inaccurate, may be the highest prevailing rate then in effect), unless Customer timely provides System Initiative with a valid tax exemption certificate acceptable to the appropriate taxing authority.** ** **3.6. Overdue Amounts.** System Initiative may charge Customer interest on overdue fees at the rate of 1.5% per month (or the highest rate permitted by applicable law, if less) on the amount overdue. ## 4. TERM AND TERMINATION **4.1. Term.** This Agreement will start on the effective date of Customer’s first Order and, unless terminated earlier in accordance with this Agreement, will continue until all Orders hereunder have expired or been terminated for ninety (90) days. Additionally, in the event that all Orders have expired or terminated, then either party may terminate this Agreement upon written notice to the other party. System Initiative may close Customer’s Account upon termination of this Agreement. **4.2. Termination for Cause.** System Initiative may terminate this Agreement and/or any applicable Order, in whole or in part, by written notice if Customer fails to pay within ten (10) days after notice of nonpayment any amounts owed to System Initiative. Additionally, ether party may terminate this Agreement and all Orders in the event that: (i) the other party is in material breach of this Agreement and (only if such breach is remediable) the breach is not cured within 30 days after written notice of such breach; or (ii) to the fullest extent permitted by applicable law, the other party files for or is adjudicated bankrupt or suffers any other analogous event in any jurisdiction. **4.3. Effect of Termination.** Upon the effective date of expiration or termination of this Agreement for any reason: (i) all outstanding Orders and licenses to the Software and Support and Maintenance will automatically terminate; (ii) all outstanding payment obligations of Customer become due and payable immediately; and (iii) Customer will delete or destroy all copies of the Software and Documentation (and certify to System Initiative in writing the fact of such destruction or deletion). All definitions and the following provisions will survive the expiration or termination of this Agreement for any reason: Sections 2.4, 3,4.3 and 5 through 9. ## 5. OWNERSHIP **5.1. Ownership.** The Software and Documentation are made available on a limited license or access basis, and no ownership right is conveyed to Customer. System Initiative and its licensors will retain all right, title and interest, including all intellectual property rights, in and to the Software and Documentation. ALL RIGHTS NOT EXPRESSLY GRANTED HEREUNDER ARE RESERVED BY SYSTEM INITIATIVE. **5.2. Feedback.** Customer hereby grants to System Initiative a worldwide, irrevocable, perpetual, sublicensable, royalty-free right and license to use and exploit without restriction all feedback and suggestions provided by Customer and its Authorized Users (collectively, “**Feedback**”), including, without limitation, any information about operating results, known or suspected bugs, errors or compatibility problems, suggested modifications, and user-desired features, regarding the Software, Documentation, or any portion thereof. ## 6. CONFIDENTIALITY **6.1. Definition of Confidential Information.** “**Confidential Information**” means (i) any information disclosed, directly or indirectly, by one party (“**Disclosing Party**”) to the other party (“**Receiving Party**”) pursuant to this Agreement that is designated as “confidential,” or in some other manner to indicate its confidential nature, and (ii) information otherwise reasonably expected to be treated in a confidential nature under the circumstances of disclosure or by the nature of the information itself. Without limiting the foregoing, the non-public features of the Software are the Confidential Information of System Initiative. However, Confidential Information does not include any information which (a) is or becomes generally known and available to the public through no act or omission of the Receiving Party; (b) was already in the Receiving Party’s possession at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s contemporaneous records; (c) is lawfully obtained by the Receiving Party from a third party who has the express right to make such disclosure; or (d) is independently developed by the Receiving Party without use of, or reference to, the Disclosing Party’s Confidential Information. **6.2. Use and Maintenance of Confidential Information.** Neither party shall use the Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under this Agreement. Neither party shall disclose any Confidential Information of the other party, except to employees, contractors, and representatives of the Receiving Party with a need to know that are subject to written obligation of confidentiality at least as protective of the Disclosing Party’s Confidential Information as those in this Agreement. Each party will take reasonable measures to protect the secrecy of, and avoid disclosure and unauthorized use of, the Confidential Information of the other party. A Receiving Party will use reasonable efforts to provide timely notice of compelled disclosure to facilitate confidential treatment of Disclosing Party’s Confidential Information, and will furnish only that portion of Confidential Information that it is legally required to disclose, after exercising reasonable efforts to obtain assurance that such information will receive confidential treatment. Notwithstanding anything to the contrary set forth in this Agreement, System Initiative may list Customer as a customer in its promotional and marketing materials, including its website. ## 7. INDEMNIFICATION **7.1. By System Initiative.** Subject to the terms set forth in the preamble to these T&Cs, System Initiative will defend at its expense any suit brought against Customer, and will pay any settlement System Initiative makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that Software, when used as authorized in this Agreement during the License Term, constitutes a direct infringement of such third party’s copyright or trade secret; provided that Customer provides System Initiative with (1) prompt written notice of; (2) sole control over the defense and settlement of; and (3) all information and assistance reasonably requested by System Initiative in connection with the defense or settlement of, any such claim. If any such claim is brought or threatened, System Initiative may, at its sole option and expense: (a) procure for Customer the right to continue to use the Software; (b) modify the Software to make it non-infringing; (c) replace the Software with non-infringing technology having substantially similar capabilities; or (d) if none of the foregoing is commercially practicable, terminate the applicable Order(s) and/or this Agreement and provide a pro-rata refund of any applicable prepaid but unused license fees for such Software. Notwithstanding the foregoing, System Initiative will have no liability to Customer for any claim arising out of or related to (I) the use of the Software in combination with software, technology, products, data or services not provided by System Initiative, including without limitation any Customer Environment, (II) Customer’s or its Authorized Users’ use the Software other than in accordance with this Agreement and the Documentation, (III) any modifications to the Software made at the request of Customer or by any party other than System Initiative, or (IV) use of any specified release of the Software after System Initiative notifies Customer that continued use of such release may subject Customer to a claim of infringement, if System Initiative provides a replacement release. **7.2. Disclaimer.** SECTION 7.1 STATES THE ENTIRE LIABILITY OF SYSTEM INITIATIVE, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS BY THE SOFTWARE, DOCUMENTATION OR ANY PART THEREOF. **7.3. By Customer.** Notwithstanding anything to the contrary in Section 7.1, Customer shall indemnify, defend and hold harmless System Initiative and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (collectively, the “**System Initiative Entities**”) from and against any third party claim, loss, or damage (including reasonable attorney’s fees), arising out of or relating to (i) anything described in subparts I-IV of Section 7.1 above, or (ii) Customer’s violation or alleged violation of Section 2.4. System Initiative will provide Customer with (a) prompt written notice of; (b) control over the defense and settlement of; and (c) all information and assistance reasonably requested by Customer in connection with the defense or settlement of, any such claim. Notwithstanding the foregoing, System Initiative will at all times have the option to participate in any matter or litigation, including but not limited to participation through counsel of its own selection, if desired, the hiring of such separate counsel being at System Initiative’s own expense. ## 8. WARRANTIES; DISCLAIMER; LIMITATION OF LIABILITY **8.1. General Warranties.** Each party represents and warrants that it has the legal power and authority to enter into this Agreement. **8.2. Limited Performance Warranty.** Subject to the terms set forth in the preamble to these T&Cs, System Initiative warrants that for at least ninety (90) days from the date of initial delivery of the Software to Customer (“**Warranty Period**”), the Software will perform in all material respects in accordance with its Documentation. In the event of a breach of the foregoing warranty, System Initiative’s sole obligation, and Customer’s sole and exclusive remedy, shall be for System Initiative to (i) correct any failure(s) of the Software to perform in all material respects in accordance with the Documentation, or (ii) if System Initiative is unable to provide such a correction within thirty (30) days of receipt of notice of the applicable non-conformity, Customer may elect to terminate this Agreement. The warranty set forth in this Section 8.2 does not apply to the extent a non-conformity results from the applicable Software or any portion thereof: (a) being altered, except by System Initiative; (b) not being used, installed, operated, repaired, or maintained in accordance with this Agreement and/or the Documentation; (c) being subjected to misuse, negligence, or accident; or (d) being used on equipment, products, or systems not meeting specifications identified by System Initiative in the Documentation. Additionally, the warranties set forth herein only apply when notice of a warranty claim is provided to System Initiative during the applicable Warranty Period, and do not apply to any bug, defect or error caused by or attributable to software, services or hardware not supplied by System Initiative or that results from Customer’s failure to use any New Release made available by System Initiative. **8.3. Limited Virus Warranty.** Subject to the terms set forth in the preamble to these T&Cs, System Initiative further represents and warrants that it will take reasonable commercial efforts to ensure that the Software, in the form and when provided to Customer, will be free of any viruses, malware, or other harmful code. For any breach of the foregoing warranty, Customer’s sole and exclusive remedy, and System Initiative’s sole obligation, is to provide a replacement copy of the Software promptly upon notice. **8.4. Disclaimer.** TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT: (i) THE SOFTWARE AND DOCUMENTATION IS PROVIDED ON AN “AS IS” BASIS; (ii) THE SYSTEM INITIATIVE ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY OR IMPLIED, RELATING TO THE SOFTWARE AND DOCUMENTATION, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, NON-INFRINGEMENT, LOSS OF DATA, INACCURATE DATA, ACCURACY OF RESULTS, OR ARISING FROM COURSE OF DEALING, USAGE, TRADE OR RELIANCE. THE SYSTEM INITIATIVE ENTITIES DO NOT WARRANT ANY THIRD PARTY WEBSITE CONTENT, SOFTWARE, SERVICES, OR FUNCTIONALITY. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY SET FORTH IN SECTION 8.3, THE SYSTEM INITIATIVE ENTITIES DO NOT WARRANT THAT THE SOFTWARE OR USE THEREOF WILL BE SECURE, UNINTERRUPTED OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. NO ADVICE OR INFORMATION (INCLUDING WITH RESPECT TO SYSTEM OPTIMIZATION RECOMMENDATIONS OR AUTOMATED ACTIONS/DECISIONS), WHETHER ORAL OR WRITTEN, OBTAINED BY CUSTOMER OR ITS AUTHORIZED USERS FROM SYSTEM INITIATIVE OR THE SOFTWARE, WILL CREATE ANY WARRANTY THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. SYSTEM INITIATIVE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF SYSTEM INITIATIVE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SYSTEM INITIATIVE ENTITIES ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM CUSTOMER’S OR ITS AUTHORIZED USERS’ USE OF OR ACCESS TO THE SOFTWARE OR ANY RESULTS OR RECOMMENDATIONS THAT ARE GENERATED VIA THE SOFTWARE. CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER’S AND ITS AUTHORIZED USERS’ USE OF THE SOFTWARE IS AT CUSTOMER’S OWN DISCRETION AND RISK, AND THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE SYSTEM INITIATIVE ENTITIES ARE NOT RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER’S PROPERTY, INCLUDING ANY CUSTOMER ENVIRONMENTS, USED IN CONNECTION WITH THE SOFTWARE OR FOR ANY LOSS OF DATA OR CUSTOMER CONTENT. THE SOFTWARE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE AS ON-LINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES, OR WEAPONS SYSTEMS, IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE. THE SYSTEM INITIATIVE ENTITIES SPECIFICALLY DISCLAIM ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH ACTIVITIES. NOTWITHSTANDING THE FORGOING THE SYSTEM INITIATIVE ENTITIES DO NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT THE SYSTEM INITIATIVE ENTITIES ARE PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW. **8.5. Limitation of Liability.** NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE THE LIABILITY OF EITHER PARTY FOR: (i) DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE, (ii) FRAUD OR FRAUDULENT MISREPRESENTATION, OR (iii) ANY OTHER LIABILITY THAT CANNOT BE LAWFULLY EXCLUDED. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE SYSTEM INITIATIVE ENTITIES BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, TREBLE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, WASTED EXPENDITURE, LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF DATA OR LOSS OF OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR RELATING TO THIS AGREEMENT, HOWEVER CAUSED AND WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER THEORY OF LIABILITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL THE SYSTEM INITIATIVE ENTITIES’ TOTAL LIABILITY (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE GREATER OF ONE HUNDRED DOLLARS ($100) OR THE AMOUNTS ACTUALLY PAID BY CUSTOMER UNDER THIS AGREEMENT DURING THE 12-MONTH PERIOD PRIOR TO THE DATE THE CLAIM AROSE. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT FOR ANY ACTION BY SYSTEM INITIATIVE FOR NON-PAYMENT, NEITHER PARTY MAY BRING ANY ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MORE THAN 12 MONTHS AFTER THE DATE THE CLAIM AROSE. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY. ## 9. GENERAL PROVISIONS **9.1. Assignment.** Except as expressly set forth in this Agreement, neither party may assign this Agreement, or any of its rights or obligations under this Agreement, without the prior written consent of the other party, except that System Initiative may assign this Agreement without the written consent of Customer as part of a corporate reorganization, upon a change of control, consolidation, merger, reincorporation, sale of all or substantially all of its assets related to this Agreement or a similar transaction or series of transactions. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their respective permitted successors and assigns. **9.2. Force Majeure.** Except for the obligation to pay money, neither party will be liable for any failure or delay in its performance under this Agreement due to any cause beyond its reasonable control, including without limitation an act of war, terrorism, act of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet. The delayed party shall give the other party notice of such cause and shall use its reasonable commercial efforts to correct such failure or delay in performance. **9.3. Audit Rights.** Customer shall maintain complete and accurate records of its use of the Software during the term of this Agreement and for 2 years thereafter. Upon 10 days’ written notice, and no more than once per calendar year, Customer shall provide System Initiative with reasonable access to Customer’s premises during normal business hours to conduct an audit of Customer’s records and systems to verify compliance with this Agreement, including without limitation, verification regarding any restrictions on use of the Software and calculation of fees. System Initiative shall bear the costs of any such audit, except that if Customer is found to have violated the terms of this Agreement, in addition to any and all remedies available to System Initiative in law or equity, Customer shall reimburse System Initiative for all reasonable audit expenses. **9.4. Governing Law.** To the fullest extent permitted by applicable law and without prejudice to any rights that either party may have at law, this Agreement and any action related thereto (including any dispute relating to its existence, validity or termination, or any contractual or non-contractual obligation) will be governed and interpreted by and under the laws of the State of California, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. To the fullest extent permitted by applicable law, any legal action, suit or proceeding arising out of or related to this Agreement must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in Santa Clara County, California, USA, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Santa Clara County, California, USA, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. **9.5. Modifications to this Agreement.** System Initiative may update the Documentation and any terms linked or referenced therein by posting the updates on System Initiative’s website or making such updates available via the Account, effective as of the time of posting. System Initiative may modify these T&Cs and Support Policy from time to time by giving notice to Customer through System Initiative’s online user interfaces, by sending Customer an email to the e-mail address last provided to System Initiative (if any), by prominently posting notice of the changes to Customer’s Account, or in any other manner permitted by this Agreement. In the event that the last e-mail address that Customer has provided is not valid, or for any reason is not capable of delivering to Customer the notice described above, System Initiative’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Unless a shorter period is specified by System Initiative (e.g. due to changes in the law or exigent circumstances), the modifications to the T&Cs and/or Support Policy, as applicable, become effective upon renewal of Customer’s current License Term or entry into a new Order. If System Initiative specifies that the modifications to these T&Cs or Support Policy will take effect prior to Customer’s next renewal or Order and Customer notifies System Initiative in writing at [si-sales@systeminit.com](mailto:si-sales@systeminit.com) of Customer’s objection to the modifications within thirty (30) days after the date of such notice, System Initiative (at its option and as Customer’s exclusive remedy) will either: (i) permit Customer to continue under the existing version of the Agreement until expiration of the then-current License Term (after which time the modified Agreement will go into effect), or (ii) allow Customer to terminate this Agreement and receive a pro-rata refund of any pre-paid but unused fees allocable to the terminated portion of the applicable License Term. Customer may be required to click to accept or otherwise agree to the modified T&Cs in order to continue using the Software, and, in any event, continued use of the Software after the modified version of this Agreement becomes effective will constitute Customer’s acceptance of such modified version. **9.6. Export Controls; Government Rights.** The Software is subject to export restrictions by the United States government and may be subject to import restrictions by certain foreign governments, and Customer agrees to comply with all applicable export and import laws and regulations related to Customer’s download of, access to, and use of the Software. Customer shall not (and shall not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the Software, Documentation or any direct product thereof or technical information about the foregoing: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Denied Persons, Entity, or Unverified Lists or the U.S. Treasury Department’s list of Specially Designated Nationals and Consolidated Sanctions list (collectively, “**Prohibited Persons**”); (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. Customer represents and warrants that Customer is not located in, under the control of, or a national or resident of any such prohibited country. Customer also certifies that Customer is not a Prohibited Person nor owned, controlled by, or acting on behalf of a Prohibited Person. Customer agrees not to use or provide the Software for any prohibited end use, including to support any nuclear, chemical, or biological weapons proliferation, or missile technology, without the prior permission of the United States government. The Software and Documentation is deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction release, performance, display or disclosure of the Software and Documentation by the U.S. Government shall be governed solely by the terms and conditions of this Agreement and shall be prohibited except to the extent expressly permitted by the terms of this Agreement. **9.7. Miscellaneous.** This Agreement is the sole agreement of the parties concerning the subject matter hereof, and it supersedes all prior agreements and understandings with respect to said subject matter. In the event of any conflict between the terms of an Order and the terms of these T&Cs, the terms of these T&Cs will apply unless the Order expressly indicates that a provision of the Order should supersede contrary language in these T&Cs. No terms of any purchase order, acknowledgement or other form provided by Customer will modify this Agreement, regardless of any failure of System Initiative to object to such terms. Any ambiguity in this Agreement shall be interpreted equitably without regard to which party drafted hereof. Except as set forth in Section 9.5 or as provided in Sections 3.1 or 3.3, this Agreement may only be amended by a writing signed by both parties. This Agreement may be executed in counterparts. The headings in this Agreement are inserted for convenience and are not intended to affect the interpretation of this Agreement. Any required notice shall be given in writing by customary means with receipt confirmed. Notices to Customer should be sent to the address set forth on the Order or designated in the Account. In the event that the last e-mail address that Customer has provided is not valid, or for any reason is not capable of delivering to Customer the notice described above, System Initiative’s dispatch of the e-mail containing such notice will nonetheless constitute notice. Notices to System Initiative should be given to System Initiative, Inc., 548 Market St., Suite 66061, San Francisco, California 94104-5401, [si-sales@systeminit.com](mailto:si-sales@systeminit.com). System Initiative may substitute its address for notice by providing written notice thereof to Customer. Notices will be deemed to have been given at the time of actual delivery in person, 1 day after delivery to an overnight courtier service, or 3 days after deposit in the mail, or, for notices sent via email to Customer as described above, at the time the notice is sent. The relationship between the parties shall be that of independent contractors. System Initiative may use subcontractors. Waiver of any term of this Agreement or forbearance to enforce any term by either party shall not constitute a waiver as to any subsequent breach or failure of the same term or a waiver of any other term of this Agreement. Any provision found to be unlawful, unenforceable or void shall be severed from the remainder of this Agreement, and the Agreement will continue in full force and effect without said provision. This Agreement is made and entered into for the sole protection and benefit of the parties hereto, and no other person or entity shall be entitled to enforce or otherwise rely on any of the terms of this Agreement.