End User License Agreement

This End User License Agreement (the “Agreement“) constitutes a valid and binding agreement between SecuPi Inc., a Delaware corporation, whose address is 450 Park Ave South 3^rd Floor NY, NY 10016 (“SecuPi”) and the individual who downloads the Software (as defined below) from a commercial software marketplace operated by third parties (the “Marketplace” and the “End User” respectively). If End User is accessing the Software in its capacity as an employee or agent of an entity that has contracted for access to the Software, End User’s use of the Software is subject to the agreement entered into between SecuPi and such entity (the “Master Agreement“) to the extent the terms of such Master Agreement conflict with the terms of this Agreement, the terms of this Agreement shall govern the use of the Software for all other Users.

1. Scope of Agreement.

• • SecuPi develops, markets and makes available access to certain application software product (collectively, “Software”), as well as related products and services, to its end user customers via either a software-as-a-service methodology or an on-premise deployment (such Software, products and services, collectively, the “Services”). Access to the Services includes use of any associated documentation, including user manuals, specifications and other materials made available in any form by SecuPi to End User in connection with the Services (the “Documentation”). Any corrections, updates and/or other software provided to End User by SecuPi shall be deemed Software or Services under this Agreement.

2. SOFTWARE LICENSE.

• • LICENSE GRANT.Subject to the terms and conditions of this Agreement, SecuPi hereby grants to the End User, a non-exclusive, non-sublicensable right and license to use and access of a single copy of the Cloud or the on-premises version of SecuPi’ software product (“License” and the “Software” respectively), solely for its internal business purposes as set forth in this Agreement. The End User will be entitled to use the Software under the License in accordance with the Documentation supplied by SecuPi.

• • RESTRICTIONS ON USE. Except as otherwise expressly provided in this Agreement, End User shall not (and shall not permit any third party to): (a) sublicense, sell, resell, transfer, assign, distribute, share, lease, rent, make any external commercial use of, outsource, use on a timeshare or service bureau, or use in an application service provider or managed service provider environment, or otherwise generate income from the Software; (b) copy the Software onto any public or distributed network, except for an internal and End User cloud computing environment (such as Amazon Cloud); (c) cause the decompiling, disassembly, or reverse engineering of any portion of the Software, or attempt to discover any source code or other operational mechanisms of the Software (except where such restriction is expressly prohibited by law without the possibility of waiver, and then only upon prior written notice to SecuPi); (d) modify, adapt, translate or create derivative works based on all or any part of the Software; (e) modify any proprietary rights notices that appear in the Software or components thereof; (f) use any Software in violation of any applicable laws and regulations (including any export laws, restrictions, national security controls and regulations) or outside of the license scope set forth in Section ‎1; or (g) use the Software to (1) store, download or transmit infringing, libelous, or otherwise unlawful or tortious material, or malicious code or malware, or (2)interfere with or disrupt the integrity or performance of third party systems, or the Software or data contained therein, or (3) attempt to gain unauthorized access to the Software or SecuPi’ systems or networks. End User shall not export or re-export, directly or indirectly, any Software or technical data or any copy, portions or direct product thereof (i) in violation of any applicable laws and regulations, (ii) to any country for which any government, or any agency thereof, at the time of export requires an export license or other governmental approval, including Cuba, Libya, North Korea, Iran, Iraq, or Rwanda, or any other Group D:1 or E:2 country (or to a national or resident thereof) specified in the then current Supplement No. 1 to part 740 of the U.S. Export Administration Regulations (or any successor supplement or regulations without first obtaining such license or approval.

• • UNAUTHORIZED USE.End User shall notify SecuPi promptly of any unauthorized use of any password or account or any other known or suspected breach of security or misuse of the Software. End User is responsible for use of the Software by any and all employees, contractors, or other users that it allows to access the Software.

3. CONFIDENTIALITY

• • SCOPE AND RESTRICTIONS.“Confidential Information” means all information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”) that is designated in writing or identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure. The terms of this Agreement, the Software, any technical or other Documentation relating to the Software, logins, passwords and other access codes and any and all information regarding SecuPi’ business, products and services are the Confidential Information of SecuPi. The Receiving Party will: (i) not use the Disclosing Party’s Confidential Information for any purpose outside of this Agreement; (ii) not disclose such Confidential Information to any person or entity, other than its affiliates, employees, consultants, agents and professional advisers who have a “need to know” for the Receiving Party to exercise its rights or perform its obligations hereunder, provided that such employees, consultants, and agents are bound by agreements or, in the case of professional advisers, ethical duties respecting such Confidential Information in accordance with the terms of this Section ‎3; and (iii) use reasonable measures to protect the confidentiality of such Confidential Information. If the Receiving Party is required by applicable law or court order to make any disclosure of such Confidential Information, it will first give written notice of such requirement to the Disclosing Party, and, to the extent within its control, permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in its Confidential Information, and provide full cooperation to the Disclosing Party in seeking to obtain such protection. Further, this Section ‎3 will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt without any restriction on its disclosure; (ii) is or has become public knowledge or publicly available through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.

• • EQUITABLE RELIEF. The Receiving Party acknowledges that unauthorized disclosure of the Disclosing Party’s Confidential Information could cause substantial harm to the Disclosing Party for which damages alone might not be a sufficient remedy and, therefore, that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law or equity.

4. PROPRIETARY RIGHTS.

SecuPi and its suppliers own and shall retain all proprietary rights, including all copyright, patent, trade secret, trademark and all other intellectual property rights, in and to the Software and the results of any Services.  End User acknowledges that the rights granted under this Agreement do not provide End User with title to or ownership of the Software.  Certain “free” or “open source” based software (the “FOSS Software”) and third party software included with the Software (the “Third Party Software”) is provided with the Software but is not considered part of the Software hereunder.  With respect to Third Party Software included with the Software, such Third Party Software suppliers are third party beneficiaries of this Agreement. End User’s use of such FOSS Software is subject to the terms of the licenses set forth on such webpage.

End User hereby grants SecuPi a worldwide, perpetual, irrevocable, royalty-free right and license to use any ideas, suggestions, comments, recommendations, enhancement requests or other input provided by End User about the Software to SecuPi in any form and in any way whatsoever.

5. TERM AND TERMINATION.

5.1 The term of this Agreement is effective for so long as the End User uses the Software, and until terminated by End User or SecuPi (the “Term“).

5.2 If either party commits a material breach of this Agreement, and such breach has not been cured within thirty (30) days after receipt of written notice thereof, the non-breaching party may terminate this Agreement within thirty (30) days as of the end of the period provided to cure such breach. Either party may also terminate this Agreement if a receiver, trustee or liquidator has been appointed over the assets of the other party, in whole or in part, or an application for such appointment has been filed and has not been cancelled within 30 days, or in the event that any request has been made for an arrangement with creditors or for an order freezing all proceedings.

Notwithstanding, SecuPi reserves the right, without notice, without liability to End User and at SecuPi’s discretion, to terminate any of End User rights under this Agreement (including, but not limited to, the License to use the Software) and to block or prevent End User’s access to and use of the Software for any or no reason.

5.3 Upon expiration or termination of this Agreement for any reason, (i) with respect to subscription licenses, all rights granted to End User shall terminate and End User shall destroy any copies of the Software and Documentation within End User’s possession and control; (ii) with respect to trial licenses, these will survive termination of this Agreement unless SecuPi terminates the Agreement for End User’s breach of this Agreement in which case all rights granted to End User shall terminate and End User shall destroy any copies of the Software and Documentation within End User’s possession and control; and (iii) each Receiving Party will return or destroy, at the Disclosing Party’s option, the Disclosing Party’s Confidential Information in the Receiving Party’s possession or control. All fees that have accrued as of such expiration or termination, and Sections ‎2, ‎2.3, ‎3, ‎4, ‎5, ‎6 and ‎8 through ‎12, will survive any expiration or termination hereof.

6. DISCLAIMERS OF WARRANTIES.

THE SOFTWARE AND ANY SERVICES PERFORMED OR PROVIDED BY THE SOFTWARE ARE PROVIDED “AS IS” AND “AS AVAILABLE,” WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND. THE SOFTWARE SHALL NOT BE WARRANTED AND SECUPI DOES NOT GUARANTEE OR WARRANT THAT THE SOFTWARE OR ANY SERVICES WILL PERFORM ERROR-FREE OR UNINTERRUPTED, OR SECUPI WILL CORRECT ALL ERRORS. EXCEPT AS SPECIFICALLY PROVIDED HEREUNDER THE END USER SHALL NOT HAVE AND HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SOFTWARE OR ANY SERVICES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES AS TO NON-INFRINGEMENT, QUALITY, SUITABILITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. IN ANY EVENT, SECUPI ASSUMES NO WARRANTY, RESPONSIBILITY OR LIABILITY WITH RESPECT TO THE SOFTWARE OR ANY SERVICES TOWARDS ANY PERSON OR ENTITY, INCLUDING THE END USER. SECUPI MAKES NO PROMISES OR REPRESENTATIONS THAT THE SOFTWARE OR ANY SERVICES SHALL CONFORM TO ANY STATE OR LOCAL LAWS, REGULATIONS, ORDINANCES, CODES OR STANDARDS.

7. INDEMNIFICATION.

End User agrees to defend, at its expense, SecuPi and its officers, directors affiliates, subsidiaries, its suppliers licensors, partners, licensees, consultants, contractors, agents and employees (collectively, the “Indemnified Parties”) harmless from and against any and all actual or threatened third party claims,  suits, actions, proceedings (at law or in equity), damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expenses (including, but not limited to, reasonable attorney and expert fees, costs, penalties, interest and disbursements) resulting from any claim (including third-party claims), suit, action, or proceeding against any of the Indemnified Parties, whether successful or not, resulting from or arising in connection with any of the following: (i) End User’s use of the Software or the Documenting; (ii) End User’s violation of the rights of any third party; (iii) any breach by End User of this Agreement, including in connection with End User’s breach of Section 1; (iv) End User’s negligence or willful misconduct; or (v) the disclosure, solicitation or use of any personal information by End User, whether with or without your knowledge or consent.

8. LIMITATION OF LIABILITY.

• • EXCEPT FOR LIABILITY ARISING OUT OF END USER’S BREACH OF SECTION 1.2 (RESTRICTIONS ON USE) IN NO EVENT SHALL EITHER PARTY BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF REVENUES OR PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  • EXCEPT FOR LIABILITY ARISING OUT OF END USER’S BREACH OF SECTION 1.2 (RESTRICTIONS ON USE), NEITHER PARTY’S LIABILITY FOR ANY DAMAGES (WHETHER FOR BREACH OF CONTRACT, MISREPRESENTATIONS, NEGLIGENCE, STRICT LIABILITY, OTHER TORTS OR OTHERWISE) UNDER THIS AGREEMENT SHALL EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID (PLUS FEES PAYABLE) TO SECUPI DURING THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.

The limits above will not apply to the extent prohibited by applicable law.

9. FORCE MAJEURE.

Except for payment obligations, neither party hereto will be liable for defaults or delays due to acts of God, or the public enemy, acts or demands of any government or governmental agency, fires, earthquakes, floods, accidents, or other unforeseeable causes beyond its reasonable control and not due to its fault or negligence.

10.DISPUTE RESOLUTION.

Any dispute shall be exclusively referred to and finally resolved by binding arbitration conducted by one (1) arbitrator, in accordance with the International Chamber of Commers rules of Arbitration (“ICC”). In the event that the Parties are not able to agree upon the arbitrator’s decision within thirty (30) days of a request by either Party to appoint such arbitrators, the arbitrator will be appointed at the request of either Party by the ICC. The situs of all arbitration proceedings shall be competent courts in New York, unless the Parties agree in writing to another situs. All arbitration proceedings and records shall be in English. The arbitration award and/or determination shall be final and binding and judgment may be entered thereon in any court of competent jurisdiction. The arbitration proceedings contemplated by this section shall be as confidential and private as permitted by law. To that end, the parties shall not disclose the existence, content or results of any proceedings conducted in accordance with this section, and materials submitted in connection with such proceedings shall not be admissible in any other proceeding, provided, however, that this confidentiality provision shall not prevent a petition to vacate or enforce an arbitral award, and shall not bar disclosures require by law.

11. MISCELLANEOUS

11.1. This Agreement shall be governed by and construed under the laws of New York, USA.

11.2. Failure by either Party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect.

11.3. This Agreement and its exhibits, if applicable, represent the entire agreement between the parties and supersede any previous or contemporaneous oral or written agreements or communications regarding the subject matter of this Agreement.

11.4. SecuPi reserves the right to modify any provisions of this Agreement and any policies or guidelines governing the use of the Software at any time at its discretion and without liability to End User. The modifications will be effective immediately upon posting the modified Agreement, and End User waive any right is may have to receive specific notice of the modifications. End User continued use of the Software following the posting of the modifications constitutes End User acceptance to the modifications. Therefore, End User should frequently review the terms of the Agreement and all applicable policies or guidelines on the Software to understand the terms and conditions applicable to the use of the Software. If End User does not agree to any modifications to the terms of the Agreement or to any applicable policies or guidelines on the Software, End User must stop using the Software.

11.5. The rights and remedies of the parties hereunder will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity.

11.6. No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this Agreement or use of the Software.

11.7. SecuPi reserves the right to perform its obligations from locations and/or through use of affiliates and subcontractors, worldwide, provided that SecuPi will be responsible for such parties.

11.8. End User may not assign this Agreement without the prior written approval of SecuPi and any purported assignment in violation of this section shall be void, except for an assignment to End User’s affiliates; SecuPi may assign, transfer or subcontract this Agreement in whole or in part. Upon any assignment of this Agreement by End User that is approved by SecuPi, any licenses that contain an “unlimited” aspect will, with respect to End User or the successor entity, as applicable, be capped at the number of authorized Software units in use immediately prior to such assignment.

11.9. End User agrees that SecuPi may refer to End User by its trade name and logo, and may briefly describe End User’s business, in SecuPi’ marketing materials and website.

11.10. Notwithstanding any terms to the contrary in this Agreement, SecuPi may choose to electronically deliver all communications with End User, which may include email to End User’s email address indicated in your communications with SecuPi or upon downloading the Software. SecuPi’s electronic communications to End User may transmit or convey information about action taken on End User request, portions of End User request that may be incomplete or require additional explanation, any notices with respect to modifications to this Agreement, any notices required under applicable law and any other notices. End User agrees to do business electronically with SecuPi, and to receive electronically all current and future notices, disclosures, communications and information, and that the aforementioned provided electronically satisfies any legal requirement that such communications be in writing. An electronic notice will be deemed to have been received the day of receipt as evidenced by such email.