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 1. CERTAIN DEFINITIONS

As used in this Agreement, the following terms have the following meanings:

1.1   “Affiliate” means, with respect to a specified Person, any Person which directly or indirectly controls, is controlled by, or is under common control with the specified Person as of the date of this Agreement, for as long as such relationship remains in effect.
1.2    “Authorized User” means, with respect to a Customer electing SaaS Services under the Proposal, Customer’s account administrator or employees, representatives, consultants, contractors, agents and any third party to whom the Customer gives permission to access the  SaaS Services via user identification and password combination or any method requiring authentication of an individual’s identity.
 1.3    “Confidential Information” means all business information disclosed by one party to the other in connection with this Agreement unless it is or later becomes publicly available through no fault of the other party or it was or later is rightfully developed or obtained by the other party from independent sources free from any duty of confidentiality. Without limiting the generality of the foregoing, Confidential Information will include Customer's data and the details of Customer's computer operations and will also include Proprietary Items of iRely.  Confidential Information will also include the terms of this Agreement and the Proposals, but not the fact that this Agreement has been signed, the identity of the parties hereto or the identity of the products licensed or services provided under this Agreement.
1.4    “Documentation” means iRely’s written specifications for the Software, in the form provided by iRely to Customer.
1.5    “Hosting Services” means, for a Customer electing iRely-Hosted Software services under the Proposal, the hosting services by which iRely provides access to and use of the Software from a hosting network, as may be further described in the Proposal.
1.6    “including” means including but not limited to.
1.7    “Person” means any individual, sole proprietorship, joint venture, partnership, corporation, company, firm, association, cooperative, trust, estate, government, governmental agency, regulatory authority or other entity of any nature.
1.8    “Professional Services” means, collectively, the support and professional services provided by iRely under this Agreement, including all installation, training, consulting, custom modification programming, support relating to custom modification programming and other professional services, as applicable, specified in applicable Proposals and otherwise as provided under this Agreement.
1.9    “Proposals” means, collectively, the initial Proposal from iRely to Customer, as executed by iRely and Customer and as such describes the type of service (Customer-Installed Software, iRely-Hosted Software, or SaaS services) provided to Customer; all other mutually agreeable written quotes, proposals and statements of work issued under this Agreement; and all other Customer requests for Professional Services, whether oral or written, to the extent such are accepted by iRely.
1.10  “Proprietary Items” means, collectively, the Software and Documentation, all deliverables provided as a result of or in connection with this Agreement, the object code and the source code for the Software, the visual expressions, screen formats, report formats and other design features of the Software, all development tools and methodologies used in connection with the Software, SaaS Services and Professional Services, as applicable, all ideas, methods, algorithms, formulae and concepts used in developing and/or incorporated into the Software, Documentation or deliverables provided as a result of or in connection with this Agreement, all future modifications, revisions, updates, releases, refinements, improvements and enhancements of the Software, Documentation or deliverables provided as a result of or in connection with this Agreement, all derivative works (as such term is used in the U.S. copyright laws) based upon any of the foregoing and all copies of the foregoing.
 1.11  “SaaS Services” means, for a Customer electing SaaS Services under the Proposal the services by which iRely provides access to and use of the Software from a hosting network, as may be further described in the Proposal.
 1.12  “Software” means, collectively, the iRely software identified in the Proposal, including all applicable interfaces supplied by iRely hereunder, and all applicable additional iRely and third-party software identified in the Proposal and made available by iRely hereunder, such additional software subject to the terms of this Agreement and applicable written software license agreement(s) third-party vendors, as the case may be.

2. LICENSE AND SOFTWARE SERVICES 

2.1   Grant of License.  If Customer will have  elected under the Proposal the Customer-Installed Software or iRely-Hosted Software options, as applicable, iRely hereby grants to Customer a personal, non-transferable (except as provided herein), non-exclusive, limited-scope license to use, in accordance with this Agreement, one (1) copy of the Software on one (1) server, and to create one (1) copy of the Software solely for archival purposes, as the Software may be periodically modified, revised and updated in accordance with this Agreement. Customer may use the Software and Documentation only in the ordinary course of its business operations and for its own business purposes. The Software will be installed and used only at Customer’s location(s) and by the number of users specified in the Proposal. If Customer will previously have been issued by iRely a license for the Software and has requested the iRely-Hosted Software service option under the Proposal, the license granted hereunder will replace the previously granted license.
2.2   Hosting Services.  If Customer will have elected the iRely-Hosted Software services option under the Proposal, in addition to the license granted by iRely under Section 2.1, iRely hereby grants Customer a subscription to receive the Hosting Services in accordance with the terms and conditions of this Agreement.  
2.3   SaaS Services.  If Customer will have elected the SaaS Services option under the Proposal, iRely hereby grants Customer a subscription to receive the SaaS Services in accordance with the terms and conditions of this Agreement.  Customer may use the SaaS Services only in the ordinary course of its business operations and for its own business purposes. 
2.4   Authorized Users.  Customer is responsible for the compliance by all Authorized Users with this Agreement and for all use of Authorized User accounts and confidentiality of passwords. Customer will promptly notify iRely in the event that an Authorized User’s password has been lost, stolen or otherwise compromised.  Customer will use commercially reasonable efforts to prevent unauthorized access to or use of the Hosting Services or SaaS Services, as applicable, and will notify iRely promptly of any such unauthorized access or use.  The numbers and location of Authorized Users may be limited in the applicable Proposals.
 

3.     DELIVERY, SUPPORT AND PROFESSIONAL SERVICES

3.1   Delivery. If Customer will have elected the Customer-Installed Software option under the Proposal, iRely will deliver to Customer a copy of the Software and Documentation on or before the date specified in the Proposal, or if no specific date is provided in the Proposal, within a commercially reasonable time. 
3.2   Maintenance and Support Services.  If Customer will have elected, as applicable, the Customer-Installed Software or iRely-Hosted Software service options under the Proposal, iRely will provide to Customer the Software maintenance and support Services set forth in the Proposal.  Such Services will relate to the then current version of the Software and the two (2) releases immediately preceding such current release.  iRely will use commercially reasonable efforts to support other older Software release at iRely’s then current time and materials rates and otherwise on the terms set forth in this Agreement.  If Customer will have elected the SaaS Services option under the Proposal, iRely shall use commercially reasonable efforts to investigate problems with the SaaS Services reported by Customer. If iRely determines that the SaaS Services problem is the result of a material reproducible error, defect, or malfunction in the SaaS Services, and such problem represents a material nonconformance with iRely’s specifications for the SaaS Services, iRely will make commercially reasonable efforts to correct the problem. An iRely representative will provide Customer with a correction, a report/determination that further research is required, or confirmation that the SaaS Services work in accordance with iRely specifications.  Maintenance and SaaS services will be adjusted annually for yearly escalation of costs.  The yearly annual increase will typically be about 2.5% per year, but this may fluctuate depending on economic factors. 

3.3   Professional Services. In addition to iRely’s Services under Section 3.2, at Customer's reasonable request, iRely will provide installation, training, consulting, custom modification programming, support relating to custom modifications and other Professional Services, as and when described in applicable Proposals and at the fees and on the other terms and conditions set forth in such Proposals.  All such Proposals will be subject to the terms and conditions of this Agreement.  Service rates may increase yearly based on market conditions and the cost/value of billable time.  

 3.4   Acceptance.  Applicable Software deliverables under all Proposals will be accepted by Customer when the acceptance criteria, if any, specified in applicable Proposals have been met.  Where no Software acceptance criteria are specified, such deliverables will be deemed accepted upon the earlier of:  (a) thirty (30) days after delivery to Customer, provided that Customer does not notify iRely of any material defects in such deliverables; or (b) the date upon which such deliverables are used in production by Customer.  SaaS Services and Hosting Services will be deemed accepted upon use in production by Customer. 

3.5   Other Terms of Services.  All subsequent Proposals will include the following items:  (a) a description of the Professional Services and other services to be performed; (b) any deliverables and/or milestones; (c) the tasks and resources Customer will provide; and (d) pricing and payment terms.  Customer will not engage or use any non-iRely personnel in connection with any Professional Services, other than Customer personnel reasonably required in connection with such Professional Services, without the prior written consent of iRely.

4. CUSTOMER'S OTHER OBLIGATIONS 

Customer will cooperate with iRely as reasonably necessary for iRely to perform its obligations under this Agreement.  Customer will devote all equipment, facilities, personnel and other resources identified in the Proposals or otherwise reasonably required to install, implement and use the Customer-Installed Software and to implement and use the iRely-Hosted Software services.  iRely will not be responsible for any delays or additional fees and costs associated with Customer’s failure to timely perform its obligations under this Section 4.

 

5. PAYMENTS 

5.1    Fees Specified in the Proposals.  Customer will pay to iRely, as applicable, the Software license fees, Hosting Services subscription fees, SaaS Services subscription fees, Professional Services fees and other fees as set forth in applicable Proposals and as and when specified in Section 5.4.

5.2   Additional Fees.  Unless otherwise expressly provided in applicable Proposals, Professional Services fees will be billable to Customer at iRely’s then current standard time and materials rates.  Customer will promptly reimburse iRely for all reasonable travel, lodging and per diem expenses incurred by iRely personnel in connection with their performance of the Professional Services. 

5.3   Taxes.  The fees and other amounts payable by Customer to iRely under this Agreement do not include any taxes of any jurisdiction that may be assessed or imposed in connection with the services provided hereunder and, as applicable, upon the copies of the Software and Documentation delivered to Customer, the license granted under this Agreement and the services provided hereunder, or any taxes otherwise assessed or imposed in connection with the transactions contemplated by this Agreement, including sales, use, excise, value added, personal property, export, import and withholding taxes, excluding only taxes based upon iRely's net income.  Customer will directly pay any such taxes assessed against it, and Customer will promptly reimburse iRely for any such taxes payable or collectable by iRely.

5.4    Payment Terms.  All fees will be invoiced by iRely as and when incurred.  All invoices will be sent to Customer's address stated on the first page of this Agreement, unless otherwise agreed by the parties. Payments will be made by automated clearing house (ACH) electronic funds transfer in accordance with ACH instructions provided in writing by iRely. Interest at the rate of eighteen percent (18%) per annum (or, if lower, the maximum rate permitted by applicable law) will accrue on any amount not paid by Customer to iRely when due under this Agreement, and will be payable by Customer to iRely on demand. All fees and other amounts paid by Customer under this Agreement are non-refundable.

5.5    Audit.  iRely or its representatives may inspect and audit Customer’s servers and facilities to determine Customer’s compliance with the Software license and Authorized Users limitations set forth inSection 2 and otherwise provided in this Agreement.  If iRely determines that a noncompliance has occurred, in addition to iRely’s other remedies,  Customer will promptly pay iRely, as applicable, all additional software license and service fees due iRely, together with all reasonable out-of-pocket costs and expenses of such audit.  

5.6   Certain Remedies for Nonpayment.  If Customer fails to pay to iRely, within ten (10) days after iRely makes written demand therefor, any past-due amount payable under this Agreement (including interest thereon) that is not the subject of a good faith dispute, in addition to all other rights and remedies which iRely may have at law or in equity, iRely may, in its sole discretion and without further notice to Customer, immediately suspend all applicable SaaS Services, Hosting Services,  Professional Services and the performance of any or all of its other obligations under this Agreement, and iRely will have no liability with respect to Customer’s use of the applicable Software, SaaS Services, Hosting Services, Professional Services or other iRely services hereunder until all past due amounts are settled.  iRely reserves the right to impose a reconnection fee in the event Customer’s access to the SaaS Services is suspended and thereafter Customer requests renewed access to the SaaS Services. For the purposes of this Agreement, a “good faith dispute” means a good faith dispute by Customer of certain amounts invoiced under this Agreement.  A good faith dispute will be deemed to exist only if (a) Customer has given written notice of the dispute to iRely promptly after receiving the invoice and (b) the notice explains Customer's position in reasonable detail.  A good faith dispute will not exist as to an invoice in its entirety merely because certain amounts on the invoice have been disputed.

5.7  Marketing Material.  Our overall pricing has been discounted with the assumption that customers will allow use of their name on various announcements and marketing materials for iRely.  If Customer does not allow this activity, built-in price discount will be considered null and void and overall pricing will be higher.  

 6.     DISCLAIMERS, EXCLUSIONS AND LIMITATIONS

 

 6.1   Force Majeure. Neither party will be liable for, nor will either party be considered in breach of this Agreement due to, any failure to perform its obligations under this Agreement (other than its payment obligations) as a result of a cause beyond its control, including any act of God or a public enemy or terrorist, act of any military, civil or regulatory authority, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including the Internet or other networked environment), power or other utility, labor problem, unavailability of supplies, extraordinary conditions or any other cause, whether similar or dissimilar to any of the foregoing, which could not have been prevented by the non-performing party with reasonable care.

6.2   Disclaimer. THE SOFTWARE, HOSTING SERVICES, SAAS SERVICES, PROFESSIONAL SERVICES AND OTHER GOODS AND SERVICES PROVIDED TO CUSTOMER HEREUNDER ARE “AS IS”, AND iRELY MAKES NO REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, QUALITY OF INFORMATION, QUIET ENJOYMENT OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INTERFERENCE, OR NON-INFRINGEMENT WITH RESPECT TO THE SOFTWARE, HOSTING SERVICES, SAAS SERVICES, PROFESSIONAL SERVICES AND OTHER GOODS AND SERVICES PROVIDED TO CUSTOMER HEREUNDER OR WITH RESPECT TO ANY OTHER MATTER PERTAINING TO THIS AGREEMENT. CUSTOMER’S USE OF THE SOFTWARE, HOSTING SERVICES, SAAS SERVICES, PROFESSIONAL SERVICES AND OTHER GOODS AND SERVICES PROVIDED TO CUSTOMER HEREUNDER WILL NOT BE DEEMED LEGAL, TAX OR INVESTMENT ADVICE. 

6.3    Limitations.  iRELY'S TOTAL LIABILITY UNDER THIS AGREEMENT WILL UNDER NO CIRCUMSTANCES EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO iRELY UNDER THIS AGREEMENT DURING THE THREE (3) MONTHS PRIOR TO THE EVENT OF LIABILITY, LESS ALL AMOUNTS PAID BY iRELY TO CUSTOMER UNDER OR IN CONNECTION WITH THIS AGREEMENT.

6.4    Consequential Damage Exclusion.  UNDER NO CIRCUMSTANCES WILL iRELY (OR ANY iRELY AFFILIATES PROVIDING SOFTWARE, HOSTING SERVICES, SAAS SERVICES, PROFESSIONAL SERVICES AND OTHER GOODS AND SERVICES PROVIDED TO CUSTOMER HEREUNDER) BE LIABLE TO CUSTOMER, ANY AUTHORIZED USER OR ANY OTHER PERSON FOR LOST REVENUES, LOST PROFITS, LOSS OF BUSINESS, TRADING LOSSES, OR ANY INCIDENTAL, INDIRECT, EXEMPLARY, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING SUCH DAMAGES ARISING FROM ANY BREACH OF THIS AGREEMENT OR ANY TERMINATION OF THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE AND WHETHER OR NOT FORESEEABLE, EVEN IF iRELY HAS BEEN ADVISED OR WAS AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.

6.5    Interruptions and Delays. Customer acknowledges that the Hosting Services and SaaS Services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. iRely is not responsible for any delays, delivery failures, improper delivery, service interruptions or other damage resulting from such problems, including interruptions and delays due to planned and unscheduled maintenance. 

6.6    Open Negotiation.  Customer and iRely have freely and openly negotiated this Agreement and all Proposals, including the pricing, with the knowledge that the liability of iRely is to be limited in accordance with the provisions of this Agreement. 

6.7    Freedom to Develop.  Customer acknowledges that iRely is engaged in the development of software for clients other than Customer, and that iRely can and will develop software and provide services for its other customers and will utilize and market Proprietary Items, including those developed under this Agreement, without any restrictions hereunder.6.8    Other Limitations.  In addition to the other limitations and exclusions under this Agreement, iRely will have no liability to Customer under the following circumstances:  Customer fails to follow iRely’s instructions relating to, as applicable, the Software, Hosting Services or SaaS Services; and/or the Software, Hosting Services or SaaS Services, as applicable, are used in violation of this Agreement; as applicable, the Software is configured, customized, installed or maintained by anyone other than iRely; as applicable, Customer modifies any Software without the prior written consent of iRely; and/or the Software, Hosting Services or SaaS Services are used in conjunction with any hardware, software, products or interfaces not specified by iRely.  The obligations of iRely under this Agreement run only to Customer and not to its Affiliates, Authorized Users or any other Persons. Under no circumstances will any Affiliate, Authorized User or client of Customer or any other Person be considered a third-party beneficiary of this Agreement or otherwise entitled to any rights or remedies under this Agreement, even if such Affiliates, Authorized Users, clients or other Persons are provided access to any Hosting Services, SaaS Services or Professional Services.  Customer will have no rights or remedies against iRely except as specifically provided in this Agreement. No action or claim of any type relating to this Agreement may be brought or made by Customer more than one (1) year after Customer first has knowledge of the basis for the action or claim.

7.     CONFIDENTIALITY AND OWNERSHIP

 

7.1    Confidential Information.  During the term of this Agreement and in perpetuity thereafter, each party will keep in confidence all of the Confidential Information of the other party, and will not use such Confidential Information of the other party without such other party’s prior written consent.  No party will disclose the Confidential Information of any other party to any Person, except to its own employees, agents and independent contractors to whom it is necessary to disclose the Confidential Information for the sole purpose of performing their duties and/or exercising their rights under this Agreement, and who have agreed to receive it under terms at least as restrictive as those specified in this Agreement.  Each party will maintain the confidentiality of the Confidential Information, with not less than the standard of care that an ordinarily prudent business would exercise to maintain the secrecy of its own most confidential information. Each party will immediately give notice to the other party of any unauthorized use or disclosure of any Confidential Information.  Each party agrees to assist the other party in remedying such unauthorized use or disclosure of Confidential Information.  Upon either party’s request, the other party will return all copies of Confidential Information and proprietary materials or information, and all copies and notes made thereof, received from hereunder, or destroy all Confidential Information and copies and notes made thereof, and provide a certification in writing to such effect.

7.2    Proprietary Items and Ownership. The Proprietary Items are trade secrets and proprietary property of iRely, having great commercial value to iRely.  All Proprietary Items provided to Customer under this Agreement are being provided on a strictly confidential and limited use basis. Customer will not, directly or indirectly, communicate, publish, display, loan, give or otherwise disclose any Proprietary Item to any Person, or permit any Person to have access to or possession of any Proprietary Item.  Title to all Proprietary Items and all related patent, copyright, trademark, trade secret, intellectual property and other ownership rights will be and remain exclusively with iRely, even with respect to such items that were created by iRely specifically for or on behalf of Customer. This Agreement is not an agreement of sale, and no title, patent, copyright, trademark, trade secret, intellectual property or other ownership rights to any Proprietary Items are transferred to Customer by virtue of this Agreement.  All copies of Proprietary Items in Customer's possession will remain the exclusive property of iRely and will be deemed to be on loan to Customer during the term of this Agreement.

7.3    Use Restrictions.  Customer will not do, attempt to do, nor permit any other Person to do, any of the following:  (a) use any Proprietary Item for any purpose, at any location or in any manner not specifically authorized by this Agreement; (b) make or retain any copy of any Proprietary Item except as specifically authorized by this Agreement; (c) create or recreate the source code for the Software, or re-engineer, reverse engineer, decompile or disassemble the Software; (d) modify, adapt, translate or create derivative works based upon the Software or Documentation, or combine or merge any part of the Software or Documentation with or into any other software or documentation; (e) refer to or otherwise use any Proprietary Item as part of any effort either to develop a program having any functional attributes, visual expressions or other features similar to those of the Software or to compete with iRely or its Affiliates; (f) remove, erase or tamper with any copyright or other proprietary notice printed or stamped on, affixed to, or encoded or recorded in any Proprietary Item, or fail to preserve all copyright and other proprietary notices in any copy of any Proprietary Item made by Customer; or (g) sell, market, license, sublicense, distribute or otherwise grant to any Person, including any outsourcer, vendor, consultant or partner, any right to use any Proprietary Item, whether on Customer's behalf or otherwise. 

7.4    Notice and Remedy of Breaches.  Each party will promptly give written notice to the other of any actual or suspected breach by it of any of the provisions of this Section 7, whether or not intentional, and the breaching party will, at its expense, take all steps reasonably requested by the other party to prevent or remedy the breach.

7.5    Enforcement. Each party acknowledges that the restrictions in this Agreement are reasonable and necessary to protect the other's legitimate business interests.  Each party acknowledges that any breach of any of the provisions of this Section 7 will result in irreparable injury to the other for which money damages could not adequately compensate.  If there is a breach, then the injured party will be entitled, in addition to all other rights and remedies which it may have at law or in equity, to have a decree of specific performance or an injunction issued by any competent court, requiring the breach to be cured or enjoining all Persons involved from continuing the breach.  The existence of any claim or cause of action that a party or any other Person may have against the other party will not constitute a defense or bar to the enforcement of any of the provisions of this Section 7.

8.     TERM AND TERMINATION

 

8.1   Term.  This Agreement, and Customer’s subscription to the Hosting Services or SaaS Services, as applicable, begins on the date set forth on the first page hereof and continues for the term specified in the initial Proposal.  Upon expiration of such initial term, the term and Customer’s subscription for the Hosting Services or SaaS Services will renew for successive one (1) year renewal terms, unless either party delivers to the other written notice of termination at least ninety (90) days before expiration of the then current term. If Customer will have elected the Customer-Installed Software or iRely-Hosted Software options, as applicable, Customer’s Software license hereunder continues until terminated in accordance with this Agreement.  Either party may terminate this Agreement at any time in accordance with Sections 8.2 or 8.3, as the case may be.  The term of subsequent Proposals (i.e., Proposals other than the initial Proposal) continues until the Professional Services under such Proposals are deemed complete by iRely or until such Proposals are sooner terminated in accordance with Sections 8.2 or 8.3, as the case may be.

8.2   Termination by Customer.  Customer may terminate any Professional Services under Proposals entered into after the date of this Agreement (i.e., Proposals other than the initial Proposal) for any reason upon thirty (30) days’ prior written notice to iRely.   Customer may immediately terminate this Agreement by giving written notice of termination to iRely, upon the occurrence of any of the following events:  (a) iRely breaches any of its material obligations under this Agreement and does not cure the breach within sixty (60) days (provided that the breach is susceptible to cure) after Customer gives written notice to iRely describing the breach in reasonable detail; or (b) iRely dissolves or liquidates or otherwise discontinues all or a significant part of its business operations.

8.3    Termination by iRely.  iRely may terminate any Professional Services under Proposals entered into after the date of this Agreement (i.e., Proposals other than the initial Proposal) for any reason upon thirty (30) days’ prior written notice to Customer.   iRely may immediately terminate this Agreement by giving written notice of termination to Customer, upon the occurrence of any of the following events: (a) Customer fails to pay to iRely, within ten (10) days after iRely makes written demand therefor, any past-due amount payable under this Agreement (including interest thereon) that is not the subject of a good faith dispute; (b) Customer breaches any of its other material obligations under this Agreement and does not cure the breach within thirty (30) days (provided that the breach is susceptible to cure) after iRely gives written notice to Customer describing the breach in reasonable detail; or (c) Customer dissolves or liquidates or otherwise discontinues all or a significant part of its business operations.

8.4   Effect of Termination.  Upon a termination of this Agreement, whether under this Section 8 or otherwise, Customer will:  (a) discontinue all use of all Software, Documentation Hosting Services, SaaS Services and Professional Services, as applicable; (b) promptly return to iRely all copies of the Software and Documentation, as applicable, and all other Proprietary Items then in Customer's possession; and (c) give written notice to iRely certifying that all copies of the Software and Documentation, as applicable, have been permanently deleted from Customer’s computers. Customer will remain liable for all payments due to iRely with respect to the period ending on the date of termination.  Customer acknowledges and agrees that iRely has no obligation to retain Customer data after termination, and that such Customer data may be irretrievably deleted thirty (30) days after termination of this Agreement.  The provisions of Sections 5, 6, 7, 8.4 and 9 will survive any termination of this Agreement, whether under this Section 8 or otherwise.

9.     OTHER PROVISIONS

 

9.1   Notices.  All notices, consents and other communications under or regarding this Agreement will be in writing and will be deemed to have been received on the earlier of the date of actual receipt, the third business day after being mailed by first class certified air mail or the first business day after being sent by a reputable overnight delivery service.  Any notice may be given by facsimile, provided that a signed written original is sent by one of the foregoing methods within twenty-four (24) hours thereafter.  Customer's address for notices is stated on the first page of this Agreement.  iRely's address for notices is 4242 Flagstaff Cove, Fort Wayne, IN 46815 USA, Attention: Contract Administration.  In the case of (a) any notice by Customer alleging a breach of this Agreement by iRely or (b) a termination of this Agreement, Customer will also send a copy to iRely, attention:  COO. Either party may change its address for notices by giving written notice of the new address to the other party in accordance with this Section 9.1.

9.2    Parties in Interest. This Agreement will bind, benefit and be enforceable by and against iRely and Customer and, to the extent permitted hereby, their respective successors and assigns.  Customer will not assign this Agreement or any of its rights hereunder, nor delegate any of its obligations hereunder, without iRely’s prior written consent, except that such consent will not be required in the case of an assignment to (a) a purchaser of or successor to substantially all of Customer's business (unless such purchaser or successor is a software, data processing or computer services vendor that is a competitor of iRely or any of its Affiliates) or (b) an Affiliate of Customer, provided that the scope of the license granted under this Agreement, as applicable, does not change and Customer guarantees to iRely in writing the obligations of the assignee. Any assignment by Customer in breach of this Section 9.2 will be void.  Any express assignment of this Agreement, any change in control of Customer, any acquisition of additional business by Customer (by asset acquisition, merger or otherwise by operation of law) and any assignment by merger or otherwise by operation of law, will constitute an assignment of this Agreement by Customer for purposes of this Section 9.2.

9.3    Relationship.  The relationship between the parties created by this Agreement is that of independent contractors and not partners, joint venturers or agents.

9.4    Entire Understanding; Counterparts.  This Agreement, which includes and incorporates the Proposals and any other addenda hereto, states the entire understanding between the parties with respect to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the parties with respect to the subject matter of this Agreement.  This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which together will constitute one and the same instrument. If this Agreement is executed via facsimile, each party hereto will provide the other party with an original executed signature page within five (5) days following the execution of this Agreement.

9.5    Modification, Waiver and Conflicts.  No modification of this Agreement, and no waiver of any breach of this Agreement, will be effective unless in writing and signed by an authorized representative of the party against whom enforcement is sought.  This Agreement may not be modified or amended by electronic means without written agreement of the parties with respect to formats and protocols.  No waiver of any breach of this Agreement, and no course of dealing between the parties, will be construed as a waiver of any subsequent breach of this Agreement. In the event of any conflict between this Agreement and the Proposals, the terms of this Agreement will govern.

9.6    Severability.  A determination that any provision of this Agreement is invalid or unenforceable will not affect the other provisions of this Agreement.

9.7    Headings. Section headings are for convenience of reference only and will not affect the interpretation of this Agreement.

9.8    Negotiated Terms.  The parties agree that the terms and conditions of this Agreement are the result of negotiations between the parties and that this Agreement will not be construed in favor of or against any party by reason of the extent to which any party or its professional advisors participated in the preparation of this Agreement.

9.9    Non-Solicitation.  Customer will not, directly or through one or more Customer Affiliates, hire or offer to hire any programmer, trainer or member of a data processing or customer support team of iRely at any time when such Person is employed or engaged by iRely or during the twelve (12) months after such employment or engagement ends.  For purposes of this provision, “hire” means to employ as an employee or to engage as an independent contractor, whether on a full-time, part-time or temporary basis.  This provision will remain in effect during the term of this Agreement and for a period of one (1) year after expiration or termination of this Agreement.

9.10  Governing Law; Arbitration; Exclusive Jurisdiction.  This Agreement, for all purposes, shall be construed in accordance with the substantive laws of the State of Indiana, without regard to conflicts-of-law principles. The parties agree that any dispute, controversy or claim arising out of or related to this Agreement, including without limitation the formation or validity of the Agreement or this arbitration provision, or any breach of this Agreement, shall be submitted to and decided by binding arbitration in Fort Wayne, Indiana, administered by the American Arbitration Association.  Any arbitral award determination shall be final and binding upon the parties and may be entered as a judgment in a court of competent jurisdiction.  Nothing in this arbitration provision shall limit the right of either party to invoke the jurisdiction of an appropriate court to seek and to obtain injunctive or other emergency relief enforcing this Agreement, or to seek an order compelling arbitration or enforcing an arbitration award.  Any action or proceeding by either party with respect to this Agreement shall be brought only in the state courts located in the State of Indiana, Allen County or the United States District Court for the Northern District of Indiana.  The parties hereby irrevocably submit to the exclusive jurisdiction of such courts and waive the defense of inconvenient forum to the maintenance of any such action or proceeding in such venue.

9.11  Export Laws; Restricted Rights. Customer will comply with all applicable United States export laws and regulations.  Customer will not export or re-export directly or indirectly (including via remote access) any part of the Software or Documentation, as applicable, or any Proprietary Items or Confidential Information to any jurisdiction outside the United States.  If Customer is an agency of the U.S. Government, the Software, Hosting Services and SaaS Services, as applicable, are provided with “Restricted Rights” and that their use, duplication or disclosure is governed by DFARS 252.227-7103 (c)(1)(ii) or FAR 52.227-19m, as applicable.

10.     EVALUATION AGREEMENT

10.1  iRely Evaluation Offering. iRely grants you a nonexclusive, nontransferable, revocable, time-limited license to use the software product(s) ("Software"), in object code format, and any included documentation, free of charge for the Evaluation Term for the sole and limited purpose of evaluating the Software.

10.2 Evaluation Term. The evaluation right and license terminates as of the date agreed to in the proposal or other form of written documentation, but terminates no later than one year from the date of first access.  Upon or prior to termination, user agrees to either: (a) Purchase a full license for the Software or purchase a SaaS offering pursuant to the terms in this Customer Master Agreement; or (b) Return any access information provided; or upon request by iRely, destroy the access information of Software and all copies of any accompanying documentation and certify in writing that it has been destroyed.  At the end of the Evaluation Term, iRely will terminate access to the environment if a SaaS offering.  iRely may immediately terminate this Agreement upon written notice if breach of any terms or conditions of this Agreement occurs.  In such event, user will cease using the service or return or destroy the access information and software, as specified above.

10.3 Ownership; Confidentiality. The Software and SaaS Offering is owned and copyrighted by Vendor.  All right, title, and interest, including all intellectual property, are and shall remain the sole property of Vendor.  Other than as specified in this Agreement, user obtains no right in and to the Software.  User agrees not to remove from view ay copyright legend, trademark or confiedentiality notice appearing on the Software or SaaS offering.  User further agrees not to reverse engineer, reverse compile, translate the Software or make any attempt to discover the source code of teh Software, now will user permit any third party to do the same.  The iRely Software and SaaS Offering are confidential information of iRely and user agrees not to disclose the Software or SaaS Offering or the results of any performance or functional evaluation or test of the Software or SaaS Offering to any third party without the prior written approval of iRely.

10.4 Content. User assumes sole responsibility for acquiring any authorization(s) necessary for interfaces and hypertext links to third party systems or websites and the accuracy of materials published via iRely's Software and SaaS Offering, including without limitation, user's content, descriptive claims, warranties, guarantees, nature of business and the address of where business is conducted. User assumes sole responsibility that the content uploaded and published via iRely's Software and SaaS Offering does not infringe upon or violate any third party rights or includes the intellectual property of a third party without the prior written consent of such third party. In no event shall iRely or its licensors be responsible for any content, products, or other materials on or available from third-party sites which is not provided by iRely.  Notwithstanding the foregoing, iRely reserves the right, in its sole discretion, to exclude or remove from the iRely Software and SaaS Offering any interfaces or hypertext links to third party systems, websites, any content or other content not supplied by iRely which, in iRely’s sole reasonable discretion, may violate or infringe any law or third party rights, provided that such right shall not place an obligation on iRely to monitor or exert editorial control over the iRely Software and SaaS Offering. iRely does not own any data, information or material that you submit to and publish via iRely's Software and SaaS Offering in the course of using the iRely Software and SaaS Offering.  You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all your content, and iRely shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any content.  iRely reserves the right to withhold, remove and/or discard content without notice for any breach, including, without limitation, non-payment.  Upon termination for cause, your right to access or use content immediately ceases, and iRely shall have no obligation to maintain or forward any your content.

10.5 Limited Warranty and Limitations of Liability. Please refer to Section 6 of this agreement.

10.6 General. User may not assign or otherwise transfer, by operation of law or otherwise, any rights under this Agreement without iRely's prior written consent. This Agreement constitutes the entire understanding between the parties regarding the subject matter hereof and supersedes any prior agreements or understandings, whether written or oral. This Agreement shall be governed by the laws of the State of Indiana without regard to conflicts of law provisions and both parties submit to the exclusive jurisdiction of courts of the State of Indiana.

 

 

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