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END USER LICENSE AGREEMENT

IMPORTANT – READ CAREFULLY: BY DOWNLOADING, INSTALLING, AND/OR USING THE SOFTWARE (DEFINED BELOW), YOU (DEFINED BELOW) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT (DEFINED BELOW). IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST NOT DOWNLOAD, INSTALL, OR USE THE SOFTWARE, AND YOU MUST DELETE OR RETURN THE UNUSED SOFTWARE.

This End User License Agreement (the “Agreement”) is hereby entered into and agreed upon by you, either an individual or an entity, and your Affiliates (“You” or “Company”) and VIP Software Corporation (“VIP”) for the Software.

1.DEFINITIONS

“Affiliates” means an entity controlled by, under common control with, or controlling such party, where control is denoted by having fifty percent (50%) or more of the voting power (or equivalent) of the applicable entity. Subject to the terms and conditions of this Agreement, Affiliates may use the license granted hereunder. All references to VIP shall be deemed to be references to VIP and its Affiliates, and all references to Company, You, or Your shall be deemed to be references to Company and its Affiliate(s).

“Computer”means the hardware, if the hardware is a single computer system, whether physical or virtual, or means the computer system with which the hardware operates, if the hardware is a computer system component.

“Content” means certain content, information and/or materials owned or licensed by You, Your vendors, end users, customers or other third parties which may be used in connection with the Software including, but not limited to, internet protocol address, hardware identifying information, operating system, application software, peripheral hardware, and Software usage statistics or any other data relevant to the operation and function of the Software.

“Documentation”means the official user documentation provided by VIP to You on the use of the Software. For the avoidance of doubt, any installation guide or end user documentation not prepared or provided by VIP; any online community site; unofficial documentation, videos, white papers, or related media; or feedback does not constitute Documentation.

“Early Termination” shall have the meaning agreed to between VIP and You as set forth in an applicable Purchase Order.

“Early Termination Fee” shall have the meaning agreed to between VIP and You as set forth in an applicable Purchase Order.

“MMI” means the monthly minimum invoice amount agreed to be You pursuant to a Purchase Order entered into with VIP.

“PPI” means price per invoice agreed to be You pursuant to a Purchase Order entered into with VIP.

Purchase Order” means any purchase order entered into between VIP and You setting forth the purchase by You of the Software identified therein and the applicable MMI, PPI, Term of service or other obligations of the parties as specifically identified therein, all of which shall be incorporated herein and made a part of this Agreement.

“SLA” means a Service Level Agreement entered into between You and VIP with respect to the provisions of the Software and services hereunder.

“Software”means the object code versions of the product, together with the updates, new releases or versions, modifications or enhancements, owned and provided by VIP to You pursuant to this Agreement.

“Term” shall mean any applicable term agreed to by you and VIP as set forth in an applicable Purchase Order.

2. GRANT OF LICENSE.

Production License.Upon payment of the applicable fees for the Software set forth in any Purchase Order and continuous compliance with the terms and conditions of this Agreement, VIP hereby grants You a limited, perpetual, nonexclusive, nontransferable license to use the object code of the Software and Documentation subject to the terms contained herein:

  • For each Software license that You purchase from VIP, You may: (i) use the Software on any single Computer, unless the Documentation clearly indicates otherwise; and (ii) copy the Software for back-up and archival purposes, provided any copy must contain all of the original Software’s proprietary notices and a notice that it will not be used for transfer, distribution or sale.
  • The Software is in use on a Computer when it is loaded into temporary memory or installed in permanent memory (hard drive, CD-ROM or other storage device). You agree to use Your reasonable efforts to prevent and protect the contents of the Software and Documentation from unauthorized use or disclosure, with at least the same degree of care that You use to protect Your own confidential and proprietary information, but in no event less than a reasonable degree of care under the circumstances. You agree that You will register this Software only with VIP and that You will only install a Software license key obtained directly from VIP.

Software Evaluation License.If the Software is provided to You for evaluation purposes, VIP grants to You a nonexclusive, limited, royalty-free, nontransferable evaluation license to use the Software solely for evaluation prior to purchase (an “Evaluation License”). The Evaluation License shall terminate on the end date of the pre-determined evaluation period or immediately upon notice from VIP at its sole discretion. Notwithstanding any other provision contained herein, Software provided pursuant to an Evaluation License is provided to You “AS IS” without indemnification, support, or warranty of any kind, express or implied. Except to the extent such terms conflict with the specific Evaluation License terms set forth in this Section, all other terms of this End User License shall apply to Software licensed under an Evaluation License.

High Availability and/or Disaster Recovery Purpose License.If You are obtaining a redundant version of the Software solely for high availability and/or disaster recovery purposes for use on Your disaster recovery Computer, You represent and warrant that (i) You may actively run the redundant version of the Software on a Computer, provided it is not running on a primary production Computer, unless (a) the primary production Computer related to the primary production version of the Software fails, (b) the Software or Computer associated with the primary production license is being upgraded or replaced, or (c) other temporary reasons that disrupt all or a material part of Your business operations; (ii) You will not utilize the redundant version of the Software to monitor any items not being monitored by the primary production Computer; and (iii) You will promptly get the primary production Computer hosting the primary production license operating correctly in order to support Your daily activities.

3. LICENSE RESTRICTIONS.

Proper Use Only. You may not: (i) provide, make available to, or permit other individuals to use the Software or Documentation, except under the terms listed above, either in whole or part; (ii) modify, translate, reverse engineer, decompile, disassemble, create derivative works, or otherwise attempt to derive the source code based upon the Software or Documentation; (iii) copy, reproduce, republish, upload, post, or transmit the Software or Documentation (except for back-up or archival purposes, which will not be used for transfer, distribution, or sale); (iv) license, sell, rent, lease, transfer, sublicense, distribute, or otherwise transfer rights to the Software or Documentation; (v) remove any proprietary notices or labels on the Software or Documentation; or (vi) license the Software if You are a direct competitor of VIP for the purposes of monitoring the Software’s availability, performance, or functionality or for any other benchmarking or competitive purposes. Any such forbidden use shall immediately terminate Your license to the Software. You will (A) be responsible for compliance with this Agreement, the Purchase Order and VIP’s Privacy Policy and Terms of Use (the “VIP Policies”) by Your vendors and end users, (B) be responsible for the accuracy, quality and legality of its Content and the means by which You acquire such Content, (C) use commercially reasonable efforts to prevent unauthorized access to or use of Software and Content, and notify VIP promptly of any such unauthorized access or use, and (D) use the Software and Content only in accordance with this Agreement, any applicable Purchase Order and the VIP Policies and applicable laws and government regulations. The Software, including its monitoring, managing, auditing and other features, are intended only for use with public domain or properly licensed third party materials. You might need a third party license or permission from your vendors to create, copy, download, record or save third-party content files for use with this Software or to serve or distribute such files to be used with the Software. All responsibility for obtaining such a license is Yours, and VIP shall not be responsible for Your failure to do so.

VIP Trademarks.You may not delete, remove, hide, move or alter any trademark, logo, icon, image or text that represents the company name of VIP, any derivation thereof, or any icon, image, or text that is likely to be confused with the same. All representations of the company name or mark “VIP”, “VIP Software” or any of its Affiliates’ names or marks must remain as originally distributed regardless of the presence or absence of a trademark, copyright, or other intellectual property symbol or notice.

Export Restrictions.The Software and Documentation delivered to You under this Agreement are subject to U.S. export control laws and regulations and may also be subject to import and export laws of the jurisdiction in which it was obtained, if outside the U.S. You shall abide by all applicable export control laws, rules and regulations applicable to the Software and Documentation. You agree that You will not export, re-export, or transfer the Software or Documentation, in whole or in part, to any country, person, or entity subject to U.S. export restrictions. You specifically agree not to export, re-export, or transfer the Software or Documentation (i) to any country to which the U.S. has embargoed or restricted the export of goods or services, or to any national of any such country, wherever located, who intends to transmit or transport the products back to such country; (ii) to any person or entity who You know or have reason to know will utilize the Software or portion thereof in the design, development, production or use of nuclear, chemical or biological materials, facilities, or weapons; or (iii) to any person or entity who has been prohibited from participating in U.S. eport transactions by any federal agency of the U.S. government.

Compliance with Applicable Laws.The Software and Documentation are protected by the intellectual property laws and other laws of the United States and international laws and treaties, including intellectual property laws. You agree that You shall use the Software and Documentation solely in a manner that complies with all applicable laws in the jurisdictions in which You use the Software and Documentation, including, but not limited to, applicable restrictions concerning copyright and other intellectual property rights.

Service Level Agreement. You agree to abide by all terms and conditions of the SLA. VIP will provide You written notification of any changes to the SLA. Continued use of the Software fifteen (15) days after provisions of such notice constitutes Your agreement to abide by the terms of any revised SLA.

Updates and Upgrades. VIP may from time to time, in its sole discretion, develop updates and upgrades. VIP shall make updates and upgrades available to You at no charge as they become generally available. You hereby agree that all updates and upgrades shall be automatically implanted with respect to Your account without any requirement of consent by You. VIP shall provide You with reasonable notice of any material update or upgrade to their account. Such update or upgrade shall be deemed part of the Software and shall be subject to all the terms and conditions of this Agreement.

Subscriptions. Unless otherwise provided in an applicable Purchase Order, (a) Software and services are purchased as subscriptions, (b) subscriptions may be added during the Term at the pricing set forth in an applicable Purchase Order, prorated for the portion of that subscription Term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions in such applicable Purchase Order unless otherwise agreed between You and VIP.

4. RIGHTS RESERVED.THE SOFTWARE IS LEASED AND/OR LICENSED, NOT SOLD. Use herein of the word “purchase” in conjunction with licenses, license keys, or the Software shall not imply a transfer of ownership. Unless as conveyed herein, this Agreement does not grant You any rights, title, or interest in or to Software, Documentation, trademarks, service marks, or trade secrets, or corresponding intellectual property (including without limitation any images, photographs, animations, video, audio, music, and text incorporated into the Software, the accompanying printed materials, and any copies of the Software) of VIP or its suppliers, and all rights, title, and interest in and to the Software, Documentation, and corresponding intellectual property shall remain the property of VIP, its suppliers, or are publicly available. All rights not expressly granted under this Agreement are reserved by VIP, its suppliers, or third parties. All title, rights, and interest in and to content, which may be accessed through the Software, is the property of the respective owner and may be protected by applicable intellectual property laws and treaties. This Agreement gives You no rights to such content, including use of the same. VIP agrees that any data and information (including without limitation, computer software, computer database, computer software documentation, specifications, design drawings, reports, blueprints, and the like) generated by the Software from Your proprietary Content shall be and remain Your sole property.

5. DATA RIGHTS.You agree that VIP will collect and track technical and related information about You and Your use of the Software, which may include Your Content, as part of the operation and function of the Software, the provision of updates, support, invoicing, marketing by VIP or its agents, and research and development. You hereby grant, and shall cause your vendors, and end users to grant, to VIP a nonexclusive, nontransferable, royalty-free license to use, reproduce, distribute and display the Content solely in connection with VIP’s provision of the Software under the terms of this Agreement. You shall work with VIP work to provide for the integration of the Software to provide VIP with automatic access to such Content or other data reference above so that VIP can create and deliver to You all required reports, data or other information agreed to in connection with the provision of the Software. You represent and warrant to VIP that (a) You own or possess sufficient rights to the Content to provide it to VIP hereunder and to allow VIP to use such Content as contemplated by the Software; and (b) the Content is free from viruses or destructive properties. Notwithstanding the foregoing, VIP shall only reproduce, distribute, analyze or otherwise use the Content in accordance with this Agreement and shall maintain the confidentiality of all Content and shall permit access solely to You and Your authorized vendors and end users specifically granted access to such Content by You. Any possession by VIP of such Content shall be in accordance with VIP Privacy Policy, which is incorporated herein by reference. As a reminder, VIP’s Privacy Policy can be found here: (http://www.billauditpro.wpengine.com/privacy-policy), and VIP may update its Privacy Policy from time to time.

6. FEES AND PAYMENT.

Fees. You shall pay all fees and charges (“Fees”) specified in the applicable Purchase Order. Fees will vary in accordance with any Purchase Order then in effect. In the event any taxes are payable in connection with the Software and services provided, You will be wholly responsible for and shall pay any such taxes.

Billing. VIP shall commence billing for Software and services as specified in the applicable Purchase Order. Any non-recurring charges, administration fees, service deposits, or other initial fees shall be invoiced upon executive of the applicable Purchase Order. Fees are billed one (1) month in arrears and the first billing cycle may include a partial month and one or two full month charges, if the Software is installed and activated in the middle of any month. All Fees and charges are payable for the duration of the Term, regardless of whether You actually use the Software. If VIP is unable to deliver the Software due to any delay or other reason caused by You, VIP may commence an additional monthly or recurring delivery charge for such Software, as determined by VIP in its reasonable discretion.

Payment. Payment is due in U.S. Dollars within thirty (30) days after the date of invoice. Your accounts are in default if payment is not received within thirty (30) days after the date of the invoice. Payment shall be remitted to VIP at its principal offices, unless otherwise notified in writing by VIP. VIP may, at any time, modify the payment terms or require a deposit or other acceptable form of security if it reasonably deems itself insecure with respect to Your ability to pay.

Delinquent Accounts. In the event any payment is past due, VIP may, at its sole discretion, (i) apply a late charge equal to the lesser of 1.5% or the highest rate permitted by applicable law on the unpaid balance per month; (ii) require You to provide a service deposit or other form of security to guarantee payment for the Software; and/or (iii) take any action in connection with any other right or remedy VIP has under this Agreement, at law or in equity, including suspension of the license granted hereunder and access to the Software and services.

Disputed Payments. If You wish to dispute any charge billed to You by VIP (a “Disputed Amount”), You must submit a good faith claim regarding the Disputed Amount with documentation as may reasonably be required to support the claim within sixty (60) days of the receipt of the initial invoice sent by VIP regarding the Disputed Amount. If You do not submit a documented claim within sixty (60) days of receipt of the initial invoice sent by VIP regarding such Disputed Amount, notwithstanding anything in this Agreement or the applicable Purchase Order to the contrary, You hereby waive all rights to dispute such Disputed Amount and waive all rights to file a claim thereafter of any kind relating to such Disputed Amount (and You also waive all rights to otherwise claim that You do not owe such Disputed Amount or to seek any set-offs or reimbursements or other amounts of any kind based upon or relating to such Disputed Amount). To the extent You file any claims for a Disputed Amount in connection with any invoice and such invoice additionally contains claims which You does not dispute, You will pay all fees which are not the Disputed Amount in accordance with the time frames set forth herein and in any applicable Purchase Order.

7. LIMITED WARRANTY.VIP warrants to You that for a period of thirty (30) days following the initial purchase and delivery of the Software to You that the Software will perform substantially in conformance with the Documentation. VIP does not warrant that the Software will meet all of Your requirements or that the use of the Software will be uninterrupted or error-free. The foregoing warranty applies only to failures in operation of the Software that are reproducible in standalone form and does not apply to: (i) Software that is modified or altered by You or any third party that is not authorized by VIP; (ii) Software that is otherwise operated in violation of this Agreement or other than in accordance with the Documentation; or (iii) failures that are caused by other software or hardware products. To the maximum extent permitted under applicable law, as VIP’s and its suppliers’ entire liability, and as Your exclusive remedy for any breach of the foregoing warranty, VIP will, at its sole option and expense, promptly repair or replace any Software that fails to meet this limited warranty or, if VIP is unable to repair or replace the Software, refund to You the applicable Fees paid upon return, if applicable, of the nonconforming item to VIP. The warranty is void if failure of the Software has resulted from accident, abuse, or misapplication. Any replacement Software under this limited warranty will be warranted for thirty (30) days.

EXCEPT AS EXPRESSLY STATED IN THIS SECTION, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, VIP IS PROVIDING AND LICENSING THE SOFTWARE TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.

8. INTELLECTUAL PROPERTY INDEMNIFICATION.VIP will indemnify and hold You harmless from any third party claim brought against You that the Software, as provided by VIP to You under this Agreement and used within the scope of this Agreement, infringes or misappropriates any U.S. patent, copyright, trademark, trade secret, or other intellectual property rights of a third party, provided (i) use of the Software by You is in conformity with the Agreement and Documentation; (ii) the infringement is not caused by modification or alteration of the Software or Documentation; and/or (iii) the infringement was not caused by a combination or use of the Software with products not supplied by VIP. VIP’s indemnification obligations are contingent upon You: (i) promptly notifying VIP in writing of the claim; (ii) granting VIP sole control of the selection of counsel, defense, and settlement of the claim; and (iii) providing VIP with reasonable assistance, information and authority required for the defense and settlement of the claim. This Section states VIP’s entire liability (and shall be VIP’s sole and exclusive remedy) with respect to indemnification to VIP.

9. YOUR INDEMNIFICATION OBLIGATIONS. You shall indemnify, defend and hold VIP, its affiliates, officers, directors, employees, agents, successors and assigns (each, a “VIP Indemnitee”) harmless from and against any and all losses, liabilities, damages and costs and all related costs and expenses (including reasonable attorneys’ fees) (collectively, “Losses”) arising out of or relating to: (i) any claim alleging that any Content infringes upon the intellectual property rights of any third party; (ii) Your failure to comply in any material respect with applicable law; (iii) any claim relating to or arising out of any Content or Software displayed, distributed or otherwise disseminated by You, Your vendors or end users (including any third-party Content of vendors or end users) in any way connected to or through the Software; (iv) any malicious act or act in violation of any laws committed by You, Your vendors or end users, including without limitation any malicious or unlawful act affecting any computer, network equipment or Internet service; or (v) any claim arising out of the malfunction of any VIP Software or materials caused by Your Content or Your personnel. VIP will notify You promptly in writing of the claim, provide reasonable assistance in connection with the defense and/or settlement thereof, and permit You to control the defense and/or settlement thereof.

10. TERM. The Term of this Agreement shall commence on the date set forth in any Purchase Order and terminate on the date that all Purchase Orders between You and VIP are no longer in effect, unless terminated sooner in accordance with this Section 9.

11. TERMINATION FOR CAUSE.

By Either Party. Either You or VIP may terminate this Agreement for cause by delivering written notice to the other upon the occurrence of any of the following events: (i) a receiver is appointed for the other party or its property; (ii) either party makes a general assignment for the benefit of its creditors; (iii) the other party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor’s relief law which proceedings are not dismissed within 60 days; (iv) the other party is liquidated or dissolved; (v) the other party ceases to do business or otherwise terminates its business operations; or (vi) the other party defaults or fails to perform any material obligation hereunder in any material respect, which default or failure is not cured within thirty (30) days after written notice thereof (other than Your payment obligations discussed below) from the non-defaulting party stating its intention to terminate this Agreement by reason thereof.

By VIP. VIP may suspend the license to the Software or terminate this Agreement, effective upon notice, should Your use of the Software, Content, or Your transmitted or transferred material directly or indirectly, actually or allegedly (i) violate any United States, state, local or other applicable law, regulation, rule or order of any applicable regulatory authority or court of competent jurisdiction, (ii) infringe or constitute the unauthorized use of any patent right, copyright, trademark, service mark, trade name or other intellectual property right of any third party, (iii) constitute or involve the misappropriation of any trade secret or other intellectual property right of any third party, or (iv) be used for or involved in any defamatory, threatening or obscene purpose or in violation of any U.S. community standard or otherwise violate the VIP Policies or the SLA.

By VIP for Non-Payment. In the event You fail to pay any fees or charges within forty-five (45) days of the invoice date, VIP may immediately terminate this Agreement and/or the Software at VIP’s sole discretion. Termination for non-payment shall not relieve Your responsibilities under this Agreement including, but not limited to, Your obligation to pay Fees (plus any default interest) up to the date of termination and any Early Termination Fees due and owing at the date of termination.

Effect of Termination. Except as specifically provided in this Agreement, upon termination of this Agreement for any reason, all obligations of VIP to provide the Software shall cease. In the event of Your Early Termination of this Agreement without cause, any service deposit, if applicable, shall be applied to any unpaid balance or Fees and any remaining balance will be billed to You in addition to the Early Termination Fee, if applicable. Any unused portion of any service deposit or unused Fees will be promptly refunded to You. In the event of termination of this Agreement by VIP for cause, You hereby agree that it will be impractical and extremely difficult to determine the actual damages suffered by VIP. Therefore, You agree that, in addition to all other remedies, monetary damages, and equitable relief to which VIP may be entitled, VIP shall be entitled to liquidated partial damages equal to any amounts remaining to be paid to VIP pursuant to this Agreement or any Purchase Orders. Such partial liquidated damages shall be cumulative and non-exclusive, and shall be in addition to any and all other remedies that VIP may have.

No Liability for Termination. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR DAMAGES OF ANY KIND UPON THE EXPIRATION OR TERMINATION OF THIS AGREEMENT OTHER THAN FOR CAUSE, AND OTHER THAN THE EARLY TERMINATION FEE (AND ANY REMAINING RECURRING FEES DUE UNDER THE AGREEMENT SHOULD YOU TERMINATE THE AGREEMENT WITHOUT CAUSE PRIOR TO TERM EXPIRATION) PAYABLE IN THE EVENT OF TERMINATION BY YOU WITHOUT CAUSE. BOTH PARTIES WAIVE ANY RIGHT THEY MAY HAVE TO RECEIVE ANY COMPENSATION OR REPARATIONS UNDER THE LAW OF ANY JURISDICTION IN THE EVENT OF SUCH AN EXPIRATION OR TERMINATION OTHER THAN FOR CAUSE. HOWEVER, ALL AMOUNTS EARNED AND UNPAID BY EITHER PARTY TO THE OTHER AS OF THE DATE OF ANY TERMINATION, INCLUDING EARLY TERMINATION FEES, SHALL BE DUE AND PAYABLE TO THE OTHER PARTY IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT.

Survival. The rights and obligations contained in Sections 4 (RIGHTS RESERVED); 5 (DATA RIGHTS); 8 (INTELLECTUAL PROPERTY INDEMNIFICATION), 9 (YOUR INDEMNIFCIATION OBLIGATIONS), 11(f) (SURVIVAL); 12 (LIMITATION OF LIABILITY); and 13 (MISCELLANEOUS), shall survive any termination or expiration of this Agreement.

12. LIMITATION OF LIABILITY.TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL VIP, ITS DIRECTORS, OFFICERS, AGENTS, SUPPLIERS AND LICENSORS, BE LIABLE TO YOU (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) (I) FOR MORE THAN THE AMOUNT OF LICENSE FEES THAT YOU HAVE PAID TO VIP IN THE PRECEDING (6) SIX MONTHS FOR THE APPLICABLE SOFTWARE OR (II) FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE,OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST BUSINESS OPPORTUNITIES, LOSS OF USE OF THE SERVICE OFFERING, LOSS OF GOODWILL, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS, OR OTHER ECONOMIC DAMAGE , ARISING OUT OF THIS AGREEMENT OR THE USE OR INABILITY TO USE THE SOFTWARE OR DOCUMENTATION, EVEN IF VIP OR A DEALER AUTHORIZED BY VIP HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

13. MISCELLANEOUS

Third Party Programs.To the extent the Software is bundled with third party software programs; these third party software programs are governed by their own license terms, which may include open source or free software licenses. Nothing in this Agreement limits an end user’s rights under, or grants the end user rights that supersede, the terms of any such third party software.

Choice of Law and Venue.This Agreement shall be governed by the laws of the State of Florida and of the United States, without regard to any conflict of laws provisions, except that the United Nations Convention on the International Sale of Goods shall not apply. The parties agree that the provisions of the Uniform Computer Information Transactions Act shall not apply to this Agreement. You hereby consent to jurisdiction of the courts of both the state or federal courts of Florida. The prevailing party in any such dispute shall be entitled to recover from the other party actual fees and costs incurred in connection with such action (including the fees of attorneys, experts and other professionals).

Complete Agreement.This Agreement along with the Documentation, VIP Policies, each Purchase Order and the SLA constitute the entire agreement between the parties and supersedes all prior or contemporaneous communications, agreements and understandings, written or oral, with respect to the subject matter hereof. If any provision of this Agreement is held to be unenforceable, that shall not affect the enforceability of the remaining provisions.

No Third-Party Beneficiaries. Except as otherwise expressly provided in this Agreement, there are no third-party beneficiaries to this Agreement, including but not limited to the insurance providers for either party or Your customers, vendors or end users.

Force Majeure. Neither party will be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of strikes, shortages, riots, insurrection, fires, flood, storm, explosions, war, governmental action, labor conditions, earthquakes, terrorism or threat of terrorism, or any other cause which is beyond the reasonable control of such party.

Relationship of Parties. Neither this Agreement nor the parties’ business relationship established hereunder will be construed as a partnership, joint venture or agency relationship or as granting a franchise. Neither party will attempt to, or will have the right to, legally obligate the other party.

Vendors and Subcontractors. VIP may provide all or part of the Software through its vendors, affiliates or subcontractors.

Waiver and Modification. The failure of either party to require performance by the other party of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by either party of a breach of any provision hereof be taken or held to be a waiver of the provision itself.

Severability. In the event that any provision of this Agreement shall be unenforceable or invalid under any applicable law or be so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such provisions within the limits of applicable law.

Assignment. This Agreement shall be binding and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Neither party shall assign any of its rights nor delegate any of its obligations under this Agreement to any third party without the express written consent of the other except that, either party may assign this Agreement in conjunction with a merger, consolidation, sale of substantially all or a material part of its assets, sale or spin-off of a division, or reorganization, provided that the transferee agrees to be bound by al the terms and conditions of this Agreement.

Conflict of Terms. In the event of a conflict between the terms of this Agreement and any schedules or other documents referenced herein that cannot be effectively reconciled, the conflict will be resolved in the following order of precedence: (a) the terms of this Agreement, (b) the terms of the applicable VIP Policy, and (c) the terms of the SLA, and (d) the terms of any applicable Purchase Order.

Non-Exclusive. You an VIP each acknowledge and agree that, except as may be expressly agreed in writing between the parties, the rights granted to each other in this Agreement are granted on a non-exclusive basis, and that nothing in this Agreement prevents either party from entering into similar agreements with third parties at any time at the sole discretion of each party.