Legal

This Software and Services License Agreement is entered into by and between you ("Licensee") and nQuest Corporation, a Delaware Corporation, with offices located at 3001 Bishop Drive, Suite 300, San Ramon, CA 94583 ("Licensor"). Licensor and Licensee may be referred to herein collectively as the "Parties" or individually as a "Party."

WHEREAS, Licensor desires to license the Software and Services to Licensee; and

WHEREAS, Licensee desires to obtain a license to use the Software and Services for its internal business purposes, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Definitions. "Action" means any allegation, claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.

   "Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term "control" (including the terms "controlled by" and "under common control with") means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise/ownership of more than 50% of the voting securities of a Person.

   "Authorized User" means each of the individuals that: (a) Licensee has authorized to use the Software and access the Services, and (b) have been issued unique login credentials by Licensor to access the Software and Services.

   "Business Day" means a day other than a Saturday, Sunday, or other day on which commercial banks in New York City are authorized or required by Law to be closed for business.

   "Documentation" means Licensor's user manuals, handbooks, and installation guides relating to the Software, end user documentation relating to the Software and/or Services that Licensor provides or makes available to Licensee in any form or medium which describe the functionality, components, features, or requirements of the Software and/or Service, including any aspect of the installation, configuration, integration, operation, or use of the Software.

   "Error" means any failure of the Software or Service to operate in all material respects in accordance with this Agreement.

   "Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights Laws, and all similar or equivalent rights or forms of protection, in any part of the world.

   "Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction applicable to this Agreement.

   "Licensee Data" means information, data, and other content provided by Licensee or its Authorized User(s) into the Software and/or Services.

   "Losses" means all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.

   "Update" means any update, upgrade, release, or other adaptation or modification of the Software or Services, including any updated Documentation, that Licensor may provide to Licensee from time to time during the Term, which may contain, among other things, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the Software or Services, but does not include any New Version.

   "New Version" means any new version of the Software or Services that Licensor may from time to time introduce and market generally as a distinct licensed product (as may be indicated by Licensor's designation of a new version number), and which Licensor may make available to Licensee at an additional (or lower) cost under a separate written agreement.

   "Open-Source Components" means any software component that is subject to any open-source license agreement, including any software available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open-Source Initiative.

   "Person" means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.

   "Representatives" means, with respect to a Party, a Subcontractor or agent acting on a Party's behalf.

   "Software" means the investigation management software, including a desktop application, screenshot browser extension, and website(s), and any Updates thereto provided, directly or indirectly, to Licensee, residing on Licensee's or its Authorized User's computing device.

   "Services" means the investigation management services provided by Licensor through the Software via the Internet.

   "Territory" means the United States.

   "Third-Party Materials" means materials and information, in any form or medium, that are not proprietary to Licensor, including any third-party: (a) documents, data, content or specifications; (b) Open-Source Components or other software, hardware or other products, facilities, equipment or devices; and (c) accessories, components, parts or features of any of the foregoing.

   "Trial Period" means the period starting on the Effective Date and ending on the later of ninety (90) days thereafter or such later date as determined by Licensor in its sole discretion.

2. License.

   2.1. Trial License Grant. To the extent the Licensee elects for a trial license, Licensor hereby grants to Licensee a non-exclusive, non-transferable, limited license to use a single copy of the Software and access the Services during the Trial Period in accordance with the Documentation solely for Licensee's internal evaluation purposes.

   (a) No Fees. During the Trial Period, the Software and Services will be provided to Licensee at no charge. Licensee will bear all expenses of installation of the Software.

   (b) Termination/Extension of Trial Period. Either Party shall have the right to terminate this Agreement for any reason during the Trial Period immediately upon providing written notice to Licensor. Licensor may extend the Trial Period to such later date as determined by Licensor in its sole discretion.

   (c) Automatic Conversion to Full License. The day after the Trial Period ends, if neither Party has terminated this Agreement, then the license granted in section 2.1 will be converted to a license to fully use the Software and Services pursuant to section 2.2.

   (d) Trial Period Indemnification. During the Trial Period only, Section 9.1 is hereby deleted in its entirety, and Section 9.2 is replaced with the following:

   "Section 9.2. Licensee Indemnification. Licensee will be solely responsible for, and will indemnify, defend, and hold Licensor free and harmless from all damages, liabilities, charges, and expenses (including reasonable attorneys' fees) from all claims, lawsuits, or other proceedings arising out of or relating to:

   A. Licensee's use of the Software and Services in a manner not permitted by this Agreement, not permitted by Licensor, and not in violation of any applicable Law or third-party right; B. any acts or omissions of Licensee, its employees, agents, or any person or entities who have access through Licensee to the Software and Services; and C. an infringement of any right resulting in any way from the use of the Software and Services, or in combination with other software or services not provided by Licensor."

   (e) Assignment. During the Trial Period, Section 14.8 is replaced with the following: i. Neither this Agreement nor any of the rights, interests or obligations under this Agreement may be assigned or delegated, in whole or in part, by operation of law or otherwise, by Licensee without the prior written consent of Licensor, and any such assignment without such prior written consent will be null and void. Licensor may assign this Agreement during the Trial Period to any third party for any reason without any obligation to notify Licensee. This Agreement will be binding upon and inure to the benefit of the parties named herein and their respective successors and permitted assigns.

   2.2. License Grant. Licensor hereby grants to Licensee and its Authorized Users a non-exclusive, non-sublicensable, and non-transferable (except in compliance with 14.8) license to use the Software and access the Services in accordance with the Documentation solely for Licensee's internal use in the Territory during the Term.

   2.3. Scope of Licensed Access and Use. Each Authorized User may install, use, and run a copy of the Software on the Authorized User's computing device and access the Services. Authorized User(s) at a time may remotely access and use the Software or Service. For each Authorized User designated by Licensee, Licensee shall provide Licensor the name of the Authorized User and other reasonable information, and of any individuals who are no longer Authorized Users, promptly after adding, removing, or replacing any Authorized User.

   2.4. Reservation of Rights. Licensor reserves the right, in its sole discretion, to make any changes to the Services and/or Software that it deems necessary or useful, including but not limited to: (a) maintaining or enhance: (i) the quality or delivery of Licensor's Software and/or Services; (ii) the competitive strength of or market for Licensor's Software and/or Services; or (iii) the Software's or Services' cost efficiency or performance; or (b) comply with applicable Law.

   2.5. Open-Source Licenses. The Software and Service includes Open-Source Components licensed under certain open-source licenses (each, an "Open-Source License"). Any use of the Open-Source Components by Licensee is governed by, and subject to, the terms and conditions of the Open-Source License(s). The Software and Service does not use Open-Source Components in a manner that requires the disclosure or distribution of any source code.

   2.6. Security Measures. The Software and/or Service may contain technological measures designed to prevent unauthorized or illegal use of the Software or Service. Licensee acknowledges and agrees that: (a) Licensor may use these and other lawful measures to verify Licensee's compliance with the terms of this Agreement and enforce Licensor's rights, including all Intellectual Property Rights, in and to the Software or Service; (b) Licensor may deny any individual access to and/or use of the Software or Service if Licensor, in its sole discretion, believes that person's use of the Software would violate any provision of this Agreement, regardless of whether Licensee designated that person as an Authorized User; and (c) Licensor and its Representatives may collect, maintain, process and use diagnostic, technical, usage and related information, including information about Licensee's computers, systems and software, that Licensor may gather periodically to improve the performance of the Software or Services, or develop Updates. This information will be treated in accordance with Licensor's privacy policy, as amended from time to time, which can be viewed at: (https://static.nquest.io/legal/privacy_policy.html) or a successor website address.

   2.7. Subcontractors. Licensor may from time to time in its discretion engage third parties to perform Services (each, a "Subcontractor").

   2.8. Suspension of Services. Licensor may suspend, or otherwise deny Licensee's, any Authorized User's, or any other Person's access to or use of all or any part of the Services or Software without incurring any resulting obligation or liability, if: (a) Licensor receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Licensor to do so; or (b) Licensor believes, in its reasonable discretion, that: (i) Licensee or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Software or Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement; (ii) Licensee or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services or Software; or (iii) this Agreement expires or is terminated. This Section 2.8 does not limit any of Licensor's other rights or remedies, whether at law, in equity, or under this Agreement.

3. License Restrictions. Except as this Agreement expressly permits or Licensor agrees to in writing, and subject to 2.5 with respect to Open-Source Components, Licensee shall not, and shall not permit any other Person to: (a) copy the Software or Services, in whole or in part; (b) modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of any Software or Services; (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software or Services to any third party; (d) reverse engineer, disassemble, decompile, decode, or adapt the Software, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part; (e) bypass or breach any security device or protection used for or contained in the Software, Service or Documentation; (f) remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, terms of the Documentation, warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks, or serial numbers on or relating to any copy of the Software, Service or Documentation; (g) use the Software or Service in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable Law; (h) use the Software or Service for purposes of: (i) benchmarking or competitive analysis of the Software or Service; (ii) developing, using, or providing a competing software product or service; or (iii) any other purpose that is to Licensor's detriment or commercial disadvantage; (i) use (1) the Software, Service, or Documentation other than for Licensee's internal use or in any manner or for any purpose or application not expressly permitted by this Agreement, (2) any Third-Party Material in any manner or for any purpose or application not expressly permitted by the licenses controlling the Third-Party Material, or (3) any Open-Source Components in any manner or for any purpose or application not expressly permitted by the controlling Open-Source License.

4. Updates. During the Term, Licensor will provide Licensee with all Updates (including updated Documentation) that Licensor may, in its sole discretion, make generally available to its other licensees at no additional charge. All Updates provided by Licensor to Licensee are deemed Software. Licensee will install all Updates as soon as practicable after receipt. Licensee does not have any right hereunder to receive any New Versions of the Software that Licensor may, in its sole discretion, release from time to time, unless the Parties enter into a separate license for the New Version(s).

5. Fees and Payment.

   5.1. License Fees. Licensee shall pay Licensor the license fees set forth in Exhibit A in accordance with that exhibit and the terms of this Section 5.

   5.2. Taxes. All Fees and other amounts payable by Licensee under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Licensee is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Licensee hereunder, other than any taxes imposed on Licensor's income.

   5.3. Payment. Licensee shall pay all amounts due and owing under this Agreement within 30 days after the due date set forth on the invoice. Licensee shall make all payments hereunder in US dollars by to the address or account specified in Exhibit A or such other address or account as Licensor may specify in writing from time to time.

   5.4. Late Payment. If Licensee fails to make any payment when due then, in addition to all other remedies that may be available to Licensor: (a) Licensor may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law; (b) Licensee shall reimburse Licensor for all costs incurred by Licensor in collecting any late payment of amounts due or related interest, including attorneys' fees, court costs, and collection agency fees; and (c) if such failure continues for 30 days following written notice thereof, Licensor may: (i) disable Licensee's use of the Software and Service (including by means of a disabling code, technology or device); (ii) withhold, suspend or revoke its grant of a license hereunder; and/or (iii) terminate this Agreement under 13.3(a) or 13.3(b), as applicable.

   5.5. No Deductions or Setoffs. All amounts payable to Licensor under this Agreement shall be paid by Licensee to Licensor in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).

6. Confidentiality.

   6.1. Confidential Information. In connection with this Agreement, each Party (the "Disclosing Party") may disclose or make available Confidential Information to the other Party (the "Receiving Party"). Subject to 6.2, "Confidential Information" means nonpublic information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party's technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated, or otherwise identified as "confidential." Without limiting the foregoing: (a) the Software, Service and Documentation are the Confidential Information of Licensor; and (b) the Licensee Data is the Confidential Information of Licensee.

   6.2. Exclusions. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party's or any of its Representatives' noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party's knowledge, was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Disclosing Party Confidential Information.

   6.3. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Disclosing Party's Confidential Information, the Receiving Party shall, during the Term and for three (3) years thereafter: (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (b) except as may be permitted under the terms and conditions of 6.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party's exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party's obligations under this Section 6; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 6; (c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its sensitive information and in no event less than a reasonable degree of care; (d) promptly notify the Disclosing Party upon becoming aware of any unauthorized use or disclosure of Disclosing Party Confidential Information and take all reasonable steps and reasonably cooperate with Disclosing Party to prevent further unauthorized use or disclosure; and (e) ensure its Representatives' compliance with, and be responsible and liable for, any of its Representatives' non-compliance with, the terms of this Section 6. Notwithstanding any other provisions of this Agreement, the Receiving Party's obligations under this Section 6 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.

   6.4. Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Disclosing Party's Confidential Information then, to the extent permitted by applicable Law, the Receiving Party will: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under 6.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this 6.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party will disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.

7. Intellectual Property Rights.

   7.1. Intellectual Property Ownership. Licensee acknowledges and agrees that: (a) the Software, Service and Documentation are licensed, not sold, to Licensee by Licensor and Licensee does not have under or in connection with this Agreement any ownership interest in the Software, Service or Documentation, or in any related Intellectual Property Rights; (b) Licensor is the owner of all right, title, and interest in and to the Software, Service and Documentation, including all Intellectual Property Rights relating thereto, subject only to the rights of third parties in Open-Source Components and Third-Party Materials, and the limited license granted to Licensee under this Agreement; and

   7.2. Licensee Data. As between Licensor and Licensor, Licensee is and will remain the sole and exclusive owner of all right, title, and interest in and to all Licensee Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 7.3.

   7.3. Consent to Use Licensee Data. Licensee hereby irrevocably grants all such rights and permissions in or relating to Licensee Data as are necessary or useful to Licensor, its Subcontractors, and Representatives to perform its obligations hereunder.

   7.4. No Implied Rights. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to Licensee or any third party any Intellectual Property Rights or other right, title, or interest in or to any of the Software, Service, or Documentation.

8. Representations, Warranties and Covenants.

   8.1. Mutual Representations, Warranties and Covenants. Each Party represents, warrants, and covenants to the other Party that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, and authorizations it grants and is required to grant under this Agreement; (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such Party; and (d) when executed and delivered by both Parties, this Agreement will constitute the legal, valid, and binding obligation of such Party, enforceable against such Party in accordance with its terms.

   8.2. Additional Licensor Representations, Warranties and Covenants. Licensor represents, warrants and covenants to Licensee that Licensor has the necessary rights and consents in and relating to the Software, Service and Documentation so that the Software, Service, and Documentation does not and will not infringe, misappropriate or otherwise violate any third-party right, this Agreement, or applicable Law.

   8.3. Additional Licensee Representations, Warranties and Covenants. Licensee represents, warrants and covenants to Licensor that Licensee and its Authorized Users and Representatives have and will have the necessary rights and consents in and relating to the Licensee Data so that, as received by Licensor, the Licensee Data does not and will not infringe, misappropriate or otherwise violate any third party right, this Agreement, or applicable Law.

   8.4. DISCLAIMER OF WARRANTIES. THE DOCUMENTATION, SERVICES AND SOFTWARE PROVIDED BY LICENSOR ARE PROVIDED "AS IS." LICENSOR SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, LICENSOR MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE, SERVICE OR DOCUMENTATION WILL MEET LICENSEE'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL OPEN-SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED "AS IS" AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OPEN-SOURCE COMPONENT OR THIRD-PARTY MATERIALS IS STRICTLY BETWEEN LICENSEE AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN-SOURCE COMPONENTS AND THIRD-PARTY MATERIALS.

9. Indemnification.

   9.1. Licensor Indemnification. Licensor shall indemnify, defend, and hold harmless Licensee and Licensee's employees, agents, permitted successors and permitted assigns (each, a "Licensee Indemnitee") from and against any and all Losses incurred by the Licensee Indemnitee to the extent resulting from any Action by a third party that the Software or Documentation, or any use of the Software, Service, or Documentation in accordance with this Agreement, infringes or misappropriates such third party's Intellectual Property Rights. This Section 9.1 does not apply to the extent that the alleged infringement arises from: (a) Open-Source Components or other Third-Party Materials; (b) the combination, operation, or use of the Software or Service in or with, any technology (including any software, hardware, firmware, system, or network) or service not provided by Licensor or specified for Licensee's use in the Documentation; (c) the modification of the Software or Service other than: (i) by Licensor or its Subcontractor in connection with this Agreement; or (ii) with Licensor's express written authorization and in strict accordance with Licensor's written directions and specifications; (d) use of any version of the Software or Service other than the most current version or failure to timely implement any Updates, modification, update, or replacement of the Software or Service made available to Licensee by Licensor; (e) use of the Software, Service or Documentation by or on behalf of Licensee, Licensee's Representatives, Authorized Users, or a third party, in violation of this Agreement; (f) events or circumstances outside of Licensor's reasonable control (including any third-party hardware, software, or system bugs, defects, or malfunctions); or (g) Third-Party Claims or Losses for which Licensee is obligated to indemnify Licensor pursuant to 9.2.

   9.2. Licensee Indemnification. Licensee shall indemnify, defend, and hold harmless Licensor and its employees, agents, Subcontractors, permitted successors and permitted assigns (each, a "Licensor Indemnitee") from and against any and all Losses incurred by the Licensor Indemnitee to the extent resulting from any Action by a third party: (a) that any Intellectual Property Rights or other right of any Person, or any Law, is or will be infringed, misappropriated, or otherwise violated by any: i. use or combination of the Software or Services by or on behalf of Licensee or any of its Representatives with any hardware, software, system, network, service, or other matter whatsoever that is neither provided by Licensor nor authorized by Licensor in this Agreement and the Documentation; and ii. information, materials, or technology directly or indirectly provided by Licensee or directed by Licensee to be installed, combined, integrated, or used with, as part of, or in connection with the Software, Service or Documentation; (b) relating to facts that, if true, would constitute a breach by Licensee of any representation, warranty, covenant, or obligation under this Agreement; (c) relating to use of the Software, Service or Documentation by or on behalf of Licensee or any of its Representatives in violation of this Agreement or the Documentation, or in any manner contrary to Licensor's instructions.

   9.3. Indemnification Procedure. Each Party shall promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to 9.1 or 9.2. The Party seeking indemnification (the "Indemnitee") shall cooperate with the other Party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor shall promptly assume control of the defense and investigation of such Action and shall employ counsel of its choice to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action without the Indemnitee's prior written consent, which shall not be unreasonably withheld, conditioned or delayed. The Indemnitee's failure to perform any obligations under this Section 9.3 will not relieve the Indemnitor of its obligations under this Section 9, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.

   9.4. Mitigation. If the Software, Service, or any part of thereof, is, or in Licensor's opinion is likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Licensee's use of the Software or Service is enjoined or threatened to be enjoined, Licensor may, at its option and sole cost and expense: (a) obtain the right for Licensee to continue to use the Software or Service as contemplated by this Agreement; (b) modify or replace the Software or Service, in whole or in part, to seek to make the Software or Service non-infringing, while providing equivalent features and functionality, and such modified or replacement software will constitute Software or Service under this Agreement; or (c) if none of the remedies set forth in the above 9.4(a) or 9.4(b) is reasonably available to Licensor, terminate this Agreement, in which event: i. Licensee shall cease all use of the Software, Service and Documentation immediately on receipt of Licensee's notice; and ii. Licensor shall promptly refund to Licensee, on a pro rata basis, the share of any license fees prepaid by Licensee for the future portion of the Term that would have remained but for such termination.

10. Limitations of Liability.

    10.1. EXCLUSION OF DAMAGES. EXCEPT AS OTHERWISE PROVIDED IN 10.3, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY (a) LOST BUSINESS, PRODUCTION, REVENUES OR PROFITS, (b) LOSS OF GOODWILL OR REPUTATION, (c) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY SOFTWARE, SERVICES, OR OPEN-SOURCE COMPONENTS OR OTHER THIRD-PARTY MATERIALS, (d) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (e) COST OF REPLACEMENT GOODS OR SERVICES, OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

    10.2. CAP ON MONETARY LIABILITY. EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN 10.3, IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THREE TIMES THE TOTAL AMOUNTS OWED TO LICENSOR UNDER THIS AGREEMENT IN THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

    10.3. Exceptions. The exclusions and limitations in 10.1 and 10.2 do not apply to each Party's obligations under 9 (Indemnification), Section 6 (Confidentiality), or liability for a Party's gross negligence or willful misconduct.

11. Backup. The Software and Services do not replace the need for Licensee to maintain regular data backups or redundant data archives. Upon request, Provider will deliver to Licensee its then most current back-ups of Licensee Data. In the event of any loss, destruction, damage, or corruption of Licensee Data caused by the Service or Software, Licensor will, as its sole obligation and liability and as Licensee's sole remedy, use commercially reasonable efforts to restore any loss of Licensee Data from Licensor's then most current backup of such Licensee Data.

12. Security. Licensor shall employ reasonable security measures to protect Licensee Data in accordance with accepted industry standards.

    12.1. Data Breach. The term "Data Breach" means any unauthorized access to or disclosure or acquisition of Licensee Data. Licensor shall notify Licensee as soon as reasonably practicable after becoming aware of a Data Breach. In the event of a Data Breach, the Parties will coordinate with each other as reasonably necessary to investigate the Data Breach, and Licensor's sole cost and expense. Licensor agrees that it will not inform any third party of any Data Breach without Licensee's prior consent, other than to inform a complainant that the matter has been forwarded to Licensee.

13. Term and Termination.

    13.1. Initial Term. The initial term of this Agreement begins the latter of the Effective Date or the day after the Trial Period Ends and continues in effect until 1 year thereafter unless terminated earlier pursuant to any of this Agreement's provisions (the "Initial Term").

    13.2. Renewal Term. This Agreement will automatically renew for additional successive 1-year periods (each a "Renewal Term") unless earlier terminated pursuant to any of this Agreement's provisions or either Party gives the other Party written notice of non-renewal at least 30 days prior to the expiration of the Initial Term or the then-current term Renewal Term (the Initial Term, and any Renewal Terms, collectively, the "Term").

    13.3. Termination. This Agreement may be terminated at any time: (a) by Licensor, effective on written notice to Licensee, if Licensee fails to pay any amount when due under this Agreement, where such failure continues more than 30 days after Licensor's delivery of written notice thereof ("Payment Failure"); (b) by Licensor, immediately on written notice to Licensee if any 2 or more Payment Failures occur in any 6-month period; (c) by either Party, effective on written notice to the other Party, if the other Party materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured for 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; (d) by either Party, effective on written notice to the other Party, if the other Party: (i) is dissolved or liquidated or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay its debts as they become due; (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency Law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; or (v) applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.

    13.4. Effect of Termination or Expiration. On the expiration or earlier termination of this Agreement: (a) all rights, licenses and authorizations granted to licensee hereunder will immediately terminate and each Party will (i) immediately cease using and permanently erase from all devices and systems any Disclosing Party Confidential Information, including all documents, files, and tangible materials (and any partial and complete copies) containing, reflecting, incorporating, or based on any of the foregoing, whether or not modified or merged into other materials; and (ii) certify to the other Party in a signed written instrument that it has complied with the requirements of this Section 13.4(a); and (b) all amounts payable by Licensee to Licensor of any kind under this Agreement are immediately payable and due no later 15 Business Days after the effective date of the expiration or termination of this Agreement.

    13.5. Surviving Terms. The provisions set forth in the following sections, and any other right, obligation or provision under this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: this Section 13.5, 3 (License Restrictions), 6 (Confidentiality), 7 (Intellectual Property Rights), Section 8 (Representations, Warranties and Covenants), Section 9 (Indemnification), 10 (Limitations of Liability), and 14 (Miscellaneous).

14. Miscellaneous.

    14.1. Further Assurances. On a Party's reasonable request, the other Party shall, at the requesting Party's sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.

    14.2. Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.

    14.3. Public Announcements. Neither Party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or otherwise use the other Party's trademarks, service marks, trade names, logos, domain names, or other indicia of source, association or sponsorship, in each case, without the prior written consent of the other Party.

    14.4. Notices. Except as otherwise expressly set forth in this Agreement, any notice, request, consent, claim, demand, waiver, or other communication under this Agreement have legal effect only if in writing and addressed to a Party as follows (or to such other address or such other person that such addressee Party may designate from time to time in accordance with this Section 14.4): Email: support@nquest.io Attention: License Agreement Notice Notices sent in accordance with this Section 14.4 will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile, (in each case, with confirmation of transmission), if sent during the addressee's normal business hours, and on the next Business Day, if sent after the addressee's normal business hours; and (d) on the day received if sent by e-mail or certified or registered mail, return receipt requested, postage prepaid.

    14.5. Interpretation. For purposes of this Agreement: (a) the words "include," "includes" and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices [attached] to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.

    14.6. Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

    14.7. Entire Agreement. This Agreement, together with Website Terms of Service located at (https://static.nquest.io/legal/terms_of_use.html) and Privacy Policy located at (https://static.nquest.io/legal/privacy_policy.html), which are both hereby incorporated by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter therein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the provisions of this Agreement and the provisions of any click through agreements relating to the Service or Software or other documents incorporated herein by reference, the provisions of this Agreement shall be controlling.

    14.8. Assignment. Neither Party shall assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without the other Party's prior written consent. No assignment, delegation, or transfer will relieve the assigning Party of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 14.8 is void. This Agreement is binding on and inures to the benefit of the Parties hereto and their respective successors and permitted assigns.

    14.9. Export Regulation. The Software may be subject to US export control laws, including the US Export Control Reform Act and its associated regulations. Licensee will not directly or indirectly, export, re-export, or release the Software or Service to, or make the Software or Service accessible from, any country, jurisdiction or Person to which export, re-export, or release is prohibited by applicable Law. Licensee will comply with all applicable Laws and complete all required undertakings (including obtaining any necessary export license or other governmental approval) prior to exporting, re-exporting, releasing, or otherwise making the Software or Service available outside the US.

    14.10. US Government Rights. Each of the Documentation and the software components that constitute the Software or Service may be a "commercial product" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Accordingly, if Licensee is an agency of the US Government or any contractor therefor, Licensee only receives those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (a) 48 C.F.R. 227.7201 through 48 C.F.R. 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. 12.212, with respect to all other US Government licensees and their contractors.

    14.11. Force Majeure. (a) No Breach or Default In no event will Licensor be liable or responsible to Licensee, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by any circumstances beyond Licensor's reasonable control (a "Force Majeure Event"), including (i) acts of God; (ii) flood, fire, earthquake, or explosion; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions; (v) embargoes or blockades in effect on or after the date of this Agreement; and (vi) national or regional emergency. Either Party may terminate this Agreement if a Force Majeure Event affecting the other Party continues substantially uninterrupted for a period of 30 days or more. (b) Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, Licensor will give prompt written notice to Licensee stating the period the occurrence is expected to continue and use reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.

    14.12. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

    14.13. Amendment and Modification; Waiver. No amendment to or modification of or rescission, termination, or discharge of this Agreement is effective unless it is in writing and signed by each Party. No waiver by any Party of any of the provisions hereof is effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

    14.14. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. On such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties hereto shall negotiate in good faith to modify this Agreement so as to affect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

    14.15. Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the state of Delaware without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the state of Delaware. Any legal suit, action, or proceeding arising out of this Agreement or the licenses granted hereunder will be instituted exclusively in the federal or state courts located in the state of Delaware, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Service of process, summons, notice, or other document by mail to such Party's address set forth herein will be effective service of process for any suit, action, or other proceeding brought in any such court.

    14.16. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations hereunder would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy. In the event of such breach or threatened breach, the other Party will be entitled to seek equitable relief, including in a restraining order, an injunction, specific performance, and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.

    14.17. Attorneys' Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either Party against the other Party arising out of or related to this Agreement, the prevailing Party is entitled to seek recovery of its reasonable attorneys' fees and court costs from the non-prevailing Party.

    14.18 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.