Calamu End User License Agreement

TERMS AND CONDITIONS

These Terms and Conditions (“Terms”) are made part of the Calamu Services Agreement between Calamu Technologies Corporation (“Calamu”) and the Customer listed in the Order Form (as defined below) which references these Terms. These Terms will govern the use and provision of any Services (as defined below) purchased by Customer as described in any Order Form. Any terms not defined herein have the meaning given to them in the applicable Order Form.

1. SCOPE OF ENGAGEMENT AND EFFECTIVE DATE.

Customer desires to license Calamu’s proprietary software (“Software”) and other related support and professional services to be provided by Calamu (the “Professional Services” and together with the Software, the “Services”). The specific Software license type, the number of license instances, and associated Services fees, are described on the order form that references these Terms and identifies the specific Services to be made available (the “Order Form”). This Agreement is effective as of the date set forth on the Order Form (“Effective Date”).

2. LICENSE
   • Subject to the terms and conditions of this Agreement, Calamu will provide the Services set forth in a validly executed Order Form. On or as soon as reasonably practicable after the Effective Date, Calamu will provide to Customer the necessary access to allow Customer and its authorized employees, agents, customers and independent contractors (“Authorized Users”) to access the Software. Customer will prevent unauthorized access to, or use of, the Software, and notify Calamu promptly of any such unauthorized use known to Customer.
   • License Grant. Subject to the terms and conditions of this Agreement, Calamu grants to Customer a non-exclusive, non-transferable (except as permitted under Section 9.5) license during the Term (as defined below) to access and use the Software during the Term, in all instances solely for Customer’s internal business purposes. Customer may only permit Authorized Users to access and use the features and functions of the Software under this Agreement. All rights not expressly granted to Customer in this Agreement are reserved by Calamu.
   • Customer Obligations. The Software, together with any related software, technology, algorithms, processes, designs, hierarchies, user interfaces and any intellectual property rights related thereto or embodied therein, together with any improvements or modifications to the foregoing, are the exclusive property and Confidential Information of Calamu. Customer will not, and will not permit any authorized user or other party to: (a) allow any third party to access the Software; (b) modify, adapt, alter or translate Software; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Software for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Software, except as permitted by law; (e) interfere in any manner with the operation of the Software or the hardware and network used to operate the Software; (f) modify, copy or make derivative works based on any part of the Software or related documentation; (g) access or use the Software to build a similar or competitive product or service; (h) attempt to access the Software through any unapproved interface; or (i) otherwise use the Software in any manner inconsistent with applicable law. Customer bears responsibility to obtain any additional hardware or software required to access the Software.
3. FEES AND PAYMENTS
   
   • Fees. In consideration for the access rights granted to Customer and the Services performed by Calamu under this Agreement, Calamu will be paid the fees as set forth in the Order Form (“Fees”). Except as otherwise provided in an Order Form, payment obligations are non-cancelable, and all amounts paid are nonrefundable except as otherwise agreed by Calamu.
   • Payments. Except as otherwise provided in an Order Form, all Software subscription Fees are billed at the beginning of the applicable Initial Term (as defined below) or Renewal Term (as defined below), and due and payable within thirty (30) days of the date of the invoice. Calamu reserves the right (in addition to any other rights or remedies Calamu may have) to discontinue access to the Services and suspend all Authorized Users’ and Customer’s access to the Services if any Fees are more than thirty (30) days overdue until such amounts are paid in full. Any amounts not paid when due will bear interest at the rate of one- and one-half percent (1.5%) per month, or the maximum legal rate if less, from the due date until paid. Unless otherwise set forth in any Order Form, all other Fees set forth in an Order Form (e.g., Fees for Professional Services) will be invoiced in arrears within ten (10) days of the end of the month in which such services were rendered.
   • The Fees are exclusive of all applicable sales, use, value-added and other taxes, and all applicable duties, tariffs, assessments, export and import fees, or other similar charges, and Customer will be responsible for payment of all such taxes (other than taxes based on Calamu’s income), fees, duties, and charges and any related penalties and interest, arising from the payment of the fees, the provision of the Services, or the license of the Software to Customer. Customer will make all payments of Fees to Calamu free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to Calamu will be Customer’s sole responsibility.
   • Professional Services; Training and Support. Customer may request that Calamu provide certain Professional Services related to Customer’s use of the Services. Excluding those agreed between the parties in the Order Form, Calamu will have no obligation to provide or perform such services for or on behalf of Customer.
4. CONFIDENTIALITY AND PROPRIETARY RIGHTS.
   • Confidential Information. “Confidential Information” means any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party (the “Receiving Party”) knows or should have known is the confidential or proprietary information of the Disclosing Party.
   • Protection of Confidential Information. The Receiving Party agrees that it will not use or disclose to any third party any Confidential Information of the Disclosing Party, except as expressly permitted under this Agreement. The Receiving Party will limit access to the Confidential Information to Authorized Users (with respect to Customer) or to those employees who have a reasonable need to know, who have confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information (with respect to Calamu). In addition, the Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary information of a similar nature, but in no event with less than reasonable care.
   • The confidentiality obligations set forth in Section 4.2 will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through no fault of the Receiving Party; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) was independently developed by employees and contractors of the Receiving Party. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is necessary for the Receiving Party to enforce its rights under this Agreement or is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order.
   • Remedy for Breach. Each party acknowledges and agrees that violation of Section 4.2 may cause irreparable harm to the Disclosing Party, and the Receiving Party agrees that the Disclosing Party may seek injunctive relief if the Receiving Party breaches or threatens to breach of Section 4.2, without limitation of any other rights and remedies available to it.
   • Feedback & Aggregate Data. Both during and after the Term, Calamu may (a) use any suggestions, enhancement requests, recommendations or other feedback obtained in the course of providing the Software and Services or otherwise provided by Customer, including Authorized Users, and (b) collect, use, and analyze data provided to Calamu or otherwise arising during the use of the Software or Services, in order to improve and enhance the Software and Services and for other development, diagnostic and corrective purposes for those or other offerings of Calamu, and solely to the extent such data is aggregated or otherwise de-identified in a manner that does not identify Customer, share and commercialize such data.
   • Calamu Services. Except for the limited license provided to Customer in this Agreement, Calamu reserves all right, title and interest in its intellectual property and business, including the Services, and Calamu trademarks. Unless otherwise expressly set forth in an Order Form, all work product or services provided or developed pursuant to this Agreement or any Order Form (including any modifications and improvements to any Services), and all intellectual property and other proprietary rights derived therefrom, will be the sole and exclusive property of Calamu.
5. TERM AND TERMINATION.
   • This Agreement will begin on the Effective Date and continue in full force and effect for the duration set forth on the Order Form (the “Initial Term”). Thereafter, this Agreement shall automatically renew for successive terms equal in length to the Initial Term (each a “Renewal Term”), unless either party provides notice to the other of its intention not to renew at least thirty (30) days prior to expiration of the Initial Term or the then-current Renewal Term. The Initial Term and all Renewal Terms will collectively be referred to as the “Term”.
   • Termination
     • Either party may terminate this Agreement immediately upon notice to the other party if the other party materially breaches this Agreement, and such breach remains uncured more than thirty (30) days after receipt of written notice of such breach.
     • Calamu may at any time terminate this Agreement if: (a) Calamu is required to do so by law (for example, where the provision of the Software or Service to Customer is, or becomes, unlawful) or (b) Calamu has elected to discontinue the Software or Service (or any part thereof). In the event Calamu does not terminate this Agreement for cause, Calamu will refund any unused balance of Customer.

• Effect of Termination. Upon termination or expiration of this Agreement for any reason, (1) any amounts owed to Calamu prior to such termination or expiration and all completed but unpaid Professional Services Fees will be immediately due and payable, (2) all license grants to the Software shall immediately cease to exist and Customer shall discontinue use of the Software (3) Customer shall either return or destroy any Software within Customer’s possession or control, and shall certify in writing, if requested, that all copies of the Software have been returned, uninstalled or destroyed. Sections 2.3, 4, 5.3, 6, and 7 to 9 will survive expiration or termination of this Agreement.

3. WARRANTIES AND DISCLAIMERS.
   • Mutual Warranties. Each party represents and warrants the following: (i) that it is duly incorporated, validly existing and in good standing under the laws of its state of incorporation; (ii) that it has the full power and authority to consent to and perform this Agreement; and (iii) this Agreement has been duly and validly executed and constitutes the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
   • Calamu Warranties. Calamu represents and warrants that it will provide the Software under this Agreement in a professional and workmanlike manner and in compliance with applicable laws, rules and regulations. At no additional cost, and as Customer’s sole and exclusive remedy for failure to meet the limited warranty set forth in this Section, and as Calamu’s sole obligation and liability and Customer’s sole remedy under this Section for a breach of warranty with respect the Software, Calamu will use commercially reasonable efforts to correct a deficiency, or at Calamu’s sole discretion and option, refund the applicable Fees paid by Customer upon return of the Software, which will serve to terminate this Agreement. The foregoing warranty obligation applies only if Customer promptly notifies Calamu in writing of any deficiency, and such notice outlines the specific details thereof.
   • EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS,” AND CALAMU MAKES NO (AND HEREBY DISCLAIMS ALL) OTHER WARRANTIES, REPRESENTATIONS, OR CONDITIONS, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. CALAMU DOES NOT WARRANT THAT ALL ERRORS CAN BE CORRECTED, OR THAT OPERATION OF THE SERVICE SHALL BE UNINTERRUPTED OR ERROR-FREE, NOR DOES CALAMU GUARANTEE ANY SPECIFIC RESULTS IN CONNECTION WITH USE OF THE SOFTWARE OR SERVICE. CALAMU SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY ACT OR OMISSION OF ANY THIRD PARTY OR ITS PRODUCTS OR SERVICES.
4. LIMITATION OF LIABILITY
   • Types of Damages. TO THE FULLEST EXTEND PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY OR PROCUREMENT OF SUBSTITUTE SERVICES, ANY BUSINESS INTERRUPTION, IMPACT OF LOST OR DAMAGED DATA OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
   • Amount of Damages. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT WILL NOT EXCEED THE FEES PAID TO CALAMU IN CONNECTION WITH THE SERVICES DURING THE TWELVE (12) MONTHS PRECEDING THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL CALAMU HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY RELATED TO THE ACTS OR OMISSIONS OF ANY THIRD PARTY. NOTHING IN THIS AGREEMENT WILL LIMIT OR EXCLUDE EITHER PARTY’S LIABILITY FOR GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT OF A PARTY OR ITS EMPLOYEES OR AGENTS OR FOR DEATH OR PERSONAL INJURY.
5. • By Calamu. Calamu will indemnify, defend and hold Customer, its directors, officers, and employees harmless from and against any and all losses, damages, liability, costs and expenses awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys’ fees and court costs (collectively “Losses”) arising out of any third party claim to the extent alleging that the Services infringe any U.S. patent, copyright, trademark or trade secret.
   • By Customer. Customer will indemnify, defend and hold harmless Calamu, its directors, officers, and employees from and against any and all Losses arising out of Customer’s breach of this Agreement.
   • The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (a) the indemnified party will promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party will have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party will cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit.
6. • Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of New Jersey, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. The parties hereby expressly consent to the exclusive personal jurisdiction and venue in the state and federal courts for the State of New Jersey for any lawsuit arising from or related to this Agreement.
   • Export & Foreign Use. Customer shall not: (i) permit any third party to access or use the Software or Services in violation of any law or regulation; or (ii) export the Software or Services or otherwise remove the foregoing from the United States except in compliance with all applicable U.S. laws and regulations. Without limiting the generality of the foregoing, Customer shall not permit any third party to access or use the Software or support in, or export it to, a country subject to a United States embargo.
   • If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
   • Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
   • No Assignment. Neither party will assign, subcontract, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
   • Compliance with Law. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its purchase and use of the Software.
   • Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, telecommunication or internet delays or failures, fire, earthquake, flood, pandemic or epidemic, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
   • Independent Contractors. Customer’s relationship to Calamu is that of an independent contractor, and neither party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Calamu.
   • All notices required or permitted under this agreement must be delivered in writing, if to Calamu, by emailing notices@calamu.com and if to Customer by emailing the Customer Point of Contact email address listed on the Order Form, provided, however, that with respect to any notices relating to breaches of this Agreement or termination, a copy of such notice will also be sent in writing to the other party at the address listed on the Order Form by courier, by certified or registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Each party may change its email address and/or address for receipt of notice by giving notice to the other party.
   • This Agreement may be executed in one or more counterparts, each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
   • Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and the Calamu.