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FACILIBUILD END USER LICENSE AGREEMENT

Please review the license agreement then scroll to the bottom to accept the terms.

This End User License Agreement ("Agreement") is a binding legal agreement between You, either an individual or a single entity ("You") and FuseIT, Inc., ("Licensor"), a Delaware corporation regarding your use of the FaciliBuild application software ("FaciliBuild Software") and related online or electronic documentation ("Documentation"). The FaciliBuild Software, Documentation, web site and related services are collectively referred to herein as the "Software". YOU SHOULD CAREFULLY READ THIS AGREEMENT. BY CLICKING THE "I ACCEPT" BUTTON OR OTHERWISE USING THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS HEREIN, YOU ARE NOT AUTHORIZED TO USE THE SOFTWARE.

Licensor reserves the right, in its sole discretion, to update or revise this Agreement. You should periodically review the most up-to-date version. Your continued use of the Software constitutes your consent to such changes. You understand and agree that if you use the Software after the date on which the Agreement has been changed, Licensor will treat your use as acceptance of the updated Agreement or additional terms. Nothing in this Agreement shall be deemed to confer any third-party rights or benefits.

  1. DEFINITIONS

    1. Authorized User means the employees, subcontractors, vendors, Representatives or any other person or entity that has paid or on whose behalf the applicable License Fees have been paid for access to the Software.
    2. Designated Sites means, if applicable based on your subscription, your facilities at which You or your Authorized Users are permitted to use the Software.
    3. License Fees means the applicable fees for the applicable subscription level of the Software.
    4. Permitted Use means the use of the Software by an Authorized User for your benefit in the ordinary course of your internal business operations.
    5. Representatives means a party's and its successors' and permitted assigns' affiliates, employees, officers, directors, partners, shareholders, agents, attorneys and third-party advisors.
    6. Open Source Components means any open-source, freeware, shareware or other software having similar licensing or distribution models by which it is subject to license agreement or other enforceable requirements or restrictions, including under any GNU General Public License or GNU Library or Lesser Public License, or other license agreement that conforms to a standard definition set by the Open Source Initiative.
    7. Intellectual Property Rights means any and all of the following, arising in any jurisdiction in the world: (i) patents, patent applications, continuations, continuations-in-part, divisionals, renewals and reissuances; (ii) copyrights, (iii) trademarks, service marks, trade names, and trade dress; (iv) trade secrets; (v) design rights, data rights, mask work rights and moral rights; (vi) any other intellectual property rights; (vi) foreign equivalents of any of the foregoing; (vii) registrations of, and applications for, any of the foregoing; and (viii) the right to sue for any present and/or past violation, infringement or misappropriation of any of the foregoing.
    8. Maintenance Releases means any update or release of the Software that the Licensor may provide to You from time to time during the Term, that may contain, among other things, error corrections, enhancements or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency or quality of the Software.
    9. Confidential Information means any and all (a) information pertaining to the products and/or services of Licensor, including any and all information about business ideas, operations and prospects; methodologies, processes, sales and marketing data; estimates, drawings, plans; advertising strategy; costs and pricing information; purchasing methods; procurement requirements; (b) financial, corporate, technical, tax, commercial, business or other information concerning the business and affairs related to the business of Licensor; (C) notes, analyses, compilations, studies or other material prepared by You or other vendors, customers, resellers or distributors of Licensor containing or based upon, in whole or in part, any information provided by the Licensor; and (D) technology, trade secrets, copyrights, trademarks, patented or unpatented ideas and information and any other intellectual property concerning Licensor's technology and related products. Information shall be Confidential Information in any form, whether written, oral, digital, electronic, or graphic. Failure to mark or indicate that any of the Confidential Information is confidential and proprietary shall not affect its status as Confidential Information. Notwithstanding anything to the contrary contained herein, Confidential Information shall not include: (i) information which is or becomes available in the public domain without breach of this Agreement or is already possessed by You as demonstrated by written or other tangible evidence; (ii) information disclosed to You by a third-party who has an independent legal right to such information; or (iii) information that You can demonstrate by written or other tangible evidence was developed independently without breaching this Agreement.
  2. LICENSE GRANT

    Licensor hereby grants to You a non-exclusive, non-transferable, revocable and limited license to use the Software during the Term solely in accordance with the terms and conditions of this Agreement. Licensor reserves all rights not expressly granted to You in this Agreement. Licensor continuously works to improve the Software and may change the Software at any time. Additionally, there are reasons why Licensor may stop providing portions of the Software and/or associated services, including, without limitation, that it is no longer feasible for Licensor to provide the Software, the technology advances, customer feedback indicates that a change is needed, or external issues arise that make it imprudent or impractical to continue.

  3. PAYMENT TERMS

    Unless otherwise provided by law or by a particular service offer, all purchases are final and non-refundable. If there is a Licensee Fee associated with a portion of the Software, You agree to pay that charge. The price stated excludes all applicable taxes and currency exchange settlements, unless stated otherwise. You are solely responsible for paying such taxes or other charges. Licensor may suspend or cancel your Software access if Licensor does not receive an on time, full payment from You. Suspension or cancellation for non-payment could result in a loss of access to and use of your account and its content.

    By providing Licensor with a payment method, You (i) represent that You are authorized to use the payment method that You provided and that any payment information You provide is true and accurate; (ii) authorize Licensor to charge You using your payment method; and (iii) authorize Licensor to charge You for any paid feature of the Software that You choose to sign up for or use while this Agreement is in force. Licensor may bill You (a) in advance; (b) at the time of purchase; (c) shortly after purchase; or (d) on a recurring basis for subscription services. Also, Licensor may charge You up to the amount you've approved, and Licensor will notify You in advance of any change in the amount to be charged for recurring subscription services, if any.

    When You request access to the Software or portions thereof from Licensor, You agree that Licensor may begin to provide the services immediately. You won't be entitled to a cancellation or "cooling off" period, except if the law requires a cooling off period.

    Licensor may change the price of the services and Software at any time and will notify You by email at least 15 days before the price change. If You don't agree to the price change, You must cancel and stop using the Software before the price change takes effect. If there is a fixed term and price for your service offer, that price will remain in force for the term.

  4. SCOPE OF USE

    1. Access. In order to access some features of the Software, you may have to provide certain information, including personally identifying information. You agree to provide accurate and complete information. You are permitted to use and run one (1) copy of the Software for the total number of Authorized Users and/or Designated Sites for which the applicable License Fees have been paid by You or on your behalf. Licensor shall be entitled to suspend your use of the Software if the applicable Licensee Fees are not paid when due. In order to access features of the Software, You will have to create an account. When creating an account, You agree to provide accurate and complete information. You are solely responsible for the activity that occurs on your account. You agree to keep your password confidential. You may not share your password or permit anyone else to use your account. You must notify Licensor immediately of any breach of security or unauthorized use of your account. You agree to never use another's account without permission from Licensor. Your right to use the Software is not transferable. Any password or right given to you to obtain information or documents or to purchase products or services is not transferable. Licensor is not liable for any loss that You may incur as a result of someone else using your account, either with or without your knowledge. The Software is limited to individuals who are 18 and older. You may not use the Software if you are under 18 years of age.
    2. Permitted Use. You shall use the Software solely for its Permitted Use. Licensor may deny any user access to the Software if the Licensor, in its discretion, believes that the user's use of the Software violates any provision of this Agreement, regardless of whether you designated that user as an Authorized User.
    3. Use Restrictions. You shall not, and shall not permit any Representatives, Authorized Users or third-parties to, in any manner:
      1. modify, alter, amend, fix, translate, enhance, or otherwise create derivative works of the Software;
      2. 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, except as and only to the extent this restriction is prohibited by law (or, with respect to Open Source Components included in the Software, under the applicable open-source software license agreements governing the use of such components);
      3. remove, disable, or otherwise create or implement any workaround to, any security features contained in the Software;
      4. remove, delete, or alter any trademarks, copyright notices or other Intellectual Property Rights notices of the Licensor or its licensors, if any, from the Software;
      5. copy the Software, in whole or in part;
      6. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make the Software available to any third party for any reason;
      7. use the Software in, or in association with, the design, construction, maintenance or operation of any hazardous environments or systems, including: (a) power generation systems; (b) aircraft navigation or communication systems, air traffic control systems or any other transport management systems; (c) safety-critical applications, including medical or life-support systems, vehicle operation applications and any police, fire, or other safety response systems; and (d) military or aerospace applications, weapons systems or environments;
      8. use the Software in violation of any federal, state or local law, regulation or rule;
      9. use the Software for purposes of competitive analysis of the Software, the development of a competing software product or service or any other purpose that is to the Licensor's commercial disadvantage; or
      10. (a) post or submit any incomplete, false, or inaccurate information; (b) post or email messages that are inappropriate, unlawful, threatening, obscene, vulgar, pornographic, profane, indecent, defamatory, libelous, abusive, or a violation of the legal rights (including without limitation privacy and publicity) of others; (c) violate the copyright, trademark, or other intellectual property rights of any other person or entity; (d) upload or email any files containing viruses, corrupted files, or any other component that may be harmful to the operation of another's computer; (e) improperly assume or claim the identity, characteristics, or qualifications of another person or post or email anything anonymously; (f) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content submitted through the Software; (g) conduct or forward surveys, contests, pyramid schemes, or chain letters; (h) except as otherwise authorized, use the Software for commercial purposes, or post messages that contain advertising or are intended to solicit others to buy or sell services or to make donations; (i) harvest or otherwise collect information about others, including without limitation email addresses, without their consent; (j) post or email messages for the purpose of spamming; (k) attempt to gain access to any portion of the Software, any computer, server, account, network, software, or hardware associated with this Software, from which you are restricted; and (l) harm minors in any way.
  5. OPEN SOURCE LICENSES.

    The Software may include Open Source Components. Any use of the Open Source Components by You shall be governed by, and subject to, the terms and conditions of the open-source license(s).

  6. TAXES.

    You shall be 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 entity on any amounts payable by You (except any taxes on Licensor's income) for purposes of this Agreement.

  7. LICENSOR INTELLECTUAL PROPERTY.

    You acknowledge and agree that the Software is being licensed, not sold, to You by the Licensor. You further acknowledge and agree that You shall not acquire any ownership interest in the Software under this Agreement, and that Licensor [and its licensor[s] reserve[s] and shall retain the entire right, title and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software except as expressly granted to You in this Agreement. You shall promptly notify the Licensor if you become aware of any possible third-party infringement of the Licensor's Intellectual Property Rights arising out of relating to the Software and fully cooperate with Licensor in any legal action taken by the Licensor against third-parties to enforce Licensor's Intellectual Property Rights. You shall safeguard the Software from infringement, misappropriation, theft, misuse or unauthorized access.

    The text, data, content, organization, images, trademarks, trade dress, logos, graphics, design, portfolios, software (including the underlying source and object codes), digital conversion and any other concepts and materials, included in or related to the Software are Licensor's property or the property of Licensor's content suppliers or clients and are protected under applicable copyright, trademark and other proprietary rights (including but not limited to intellectual property). The collection, arrangement and assembly of all content on the Software site is subject to copyright as a "collective work" under the United States Copyright laws and Licensor owns a copyright in the selection, coordination, arrangement and enhancement of such content. The copying, redistribution, use or publication by You of any such matters or any part of the Software, except as allowed under this Agreement, is strictly prohibited and may violate copyright, trademark, and other laws. Except as specifically permitted as part of the Software features, You may not modify, remove, delete, add to, publish, transmit, participate in the transfer or sale of, create derivative works from, or in any way exploit any content. You do not acquire ownership rights to any content, document or other materials viewed through the Software. The posting of information or materials using the Software portal does not constitute a waiver of any right in such information and materials.

  8. YOUR CONTENT

    Licensor does not claim any rights in user-submitted data. Except for material that Licensor makes available to You through the Software or otherwise, Licensor does not claim ownership of the content You provide through the Software. Your content remains your content, and You are responsible for it. Licensor does not control, verify, pay for or endorse the content that You or other users make available through the Software.

    have initial control over who may access your content. If You share content in public areas of the Software or in shared areas available to others You've chosen, You agree that anyone You have shared content with may, for free, use, save, reproduce, distribute, display, and transmit that content in connection with their use of the Software. If You don't want others to have that ability, use the appropriate features of the Software to limit access or don't use the Software to share your content. When You upload your content to the Software, You agree that it may be used, modified, adapted, saved, reproduced, distributed, and displayed to the extent necessary to protect You and to provide, protect and improve Licensor's products and services.

  9. YOUR PRIVACY.

    Your privacy is important to Licensor. Licensor uses certain information that Licensor collects from You to operate and provide the Software. Additionally, as part of the Software, Licensor may also automatically upload information about your machine, your use of the Software and Software performance. You consent and agree that Licensor may access, disclose, or preserve information associated with your use of the Software, including (without limitation) your personal information and content, payment information or information that Licensor acquires about You through your use of the Software (such as IP address or other third-party information) when Licensor forms a good faith belief that doing so is necessary (a) to comply with applicable law or to respond to legal process from competent authorities; (b) to enforce this Agreement or protect the rights or property of Licensor; or (c) to help prevent a loss of life or serious physical injury to anyone. Similar to other providers of Internet services, Licensor may be served with legal demands and requests from law enforcement, government entities, and private litigants for content stored on Licensor's network. This information may relate to an alleged crime or civil matter and is usually requested pursuant to the normal legal process of the country or locality where the activity occurred. Licensor may be obligated to comply with requests for your information or your content as part of such investigations or legal proceedings.

  10. THIRD-PARTY SITES

    This Software may link you to other sites on the internet ("Linked Sites"), for purposes, including, but not limited to, showcasing materials that may be of interest or relevance to you. The Linked Sites are not under Licensor's control, and Licensor is not responsible for the contents of any Linked Sites, including without limitation the accuracy, copyright compliance, legality, or decency of the Linked Sites or any links contained therein. Licensor may not be able to screen the web sites included in the Software and these Linked Sites are maintained by persons over whom Licensors exercises no control. These links are provided for your convenience, and do not imply endorsement of the Linked Sites by Licensor or any association with its operators. All rules, policies (including privacy policies) and operating procedures will apply to You while on such sites. Licensor is not responsible for information provided to You by any merchants on the Linked Sites or by other users of the Software.

  11. SECURITY MEASURES.

    The Software may contain technological measures designed to prevent unauthorized or illegal use of the Software. You agree that Licensor may use these measures to verify your compliance with the terms of this Agreement and to enforce the Licensor's rights, including all Intellectual Property Rights, in and to the Software. You acknowledge and agree that Licensor and its Representatives may collect, maintain, process and use diagnostic, technical, usage and related information, including information about your computers, systems and software that the Licensor may gather periodically to improve the performance of the Software or develop Maintenance Releases.

  12. AUDIT.

    The Licensor and its Representatives may, in the Licensor's sole discretion, audit your (as well as your Authorized Users') use of the Software under this Agreement at any time during the Term and for three (3) years following the expiration or termination of this Agreement. You shall fully cooperate with the Licensor's audit and provide access to records, equipment, information and personnel requested by the Licensor. If the audit determines that your usage of the Software exceeded the usage permitted by this Agreement or for which less than the applicable license fees were paid, You shall pay to the Licensor all fees due for such excess usage of the Software, plus any costs incurred by the Licensor in conducting the audit within seven (7) days of the date of written notice of the audit results.

  13. CONFIDENTIALITY.

    1. Your Obligations. You acknowledge and agree that you may gain access to, or become familiar with the Licensor's Confidential Information. You shall:
      1. protect and safeguard the confidentiality of the Licensor's Confidential Information with at least the same degree of care as You would protect your own Confidential Information, but in no event with less than a commercially reasonable degree of care;
      2. not use the Licensor's Confidential Information, or permit it to be accessed or used, for any purpose other than to perform your obligations under this Agreement, or otherwise in any manner to the Licensor's detriment;
      3. not disclose any such Confidential Information to any person or entity, except to your Representatives, who (a) need to know the Confidential Information to assist you, or act on your behalf, in relation to the Purpose or to exercise its rights under the Agreement; (b) are informed by you of the confidential nature of the Confidential Information; and (c) are subject to confidentiality duties and obligations to You that are no less restrictive than the terms and conditions of this Agreement; and
      4. be responsible for any breach of this Agreement caused by any of your Representatives.
    2. Required Disclosures. You may disclose the Confidential Information pursuant to applicable federal, state or local law, regulation or a valid order issued by a court or governmental agency of competent jurisdiction (a "Legal Order"), provided that you shall first provide Licensor with: (a) prompt written notice of such requirement so that Licensor may seek a protective order or other remedy; and (b) reasonable assistance in opposing such disclosure or seeking a protective order or other limitations on disclosure.
  14. TERM AND TERMINATION

    1. Term. This Agreement shall commence upon payment of the applicable License Fees and, unless terminated earlier as set forth herein, shall continue thereafter for the period for which the applicable License Fees have been paid ("Term"). If the Term is renewed for any renewal terms, the terms and conditions of this Agreement during each such renewal term shall be the same as the terms in effect immediately prior to such renewal, subject to any change in the amount of License Fees payable hereunder by You during the applicable renewal term.
      1. Termination. This Agreement may be terminated prior to the expiration of the Term by the Licensor if:
      2. If the applicable License Fee is not paid when due;
      3. If You and/or any of your Authorized Users commits a breach of any provision of this Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured by You within three (3) days after your receipt of notice of the breach;
      4. If You file, or have failed against You, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, make or seek to make a general assignment for the benefit of creditors, or apply for, or consent to, the appointment of a trustee, receiver or custodian for a substantial part of your property;
    2. Effect of Termination. The expiration or termination of this Agreement, for any reason, shall not release You from any liability to Licensor, including any payment obligation, that has already accrued hereunder. On the expiration or termination of this Agreement, for any reason, You shall (and shall ensure that each of your Authorized Users) shall immediately discontinue use of the Software. Please note that if this Agreement is terminated, for any reason, Licensor may permanently delete your content from Licensor's services and Licensor has no obligation for return content to you.
  15. SURVIVAL.

    The provisions of Section that are intended to protect the rights of Licensor shall survive the expiration or earlier termination of this Agreement for any reason, except for Confidential Information that constitutes a trade secret under the applicable law, in which case, such obligations shall survive for as long as such Confidential Information remains a trade secret under such law.

  16. REPRESENTATIONS, WARRANTIES AND COVENANTS

    You hereby makes the following representations, and warranties and covenants, as applicable: (1) You have full power and authority to execute and deliver this Agreement and to perform its obligations under the Agreement; (2) Neither the execution, delivery and performance of this Agreement nor the consummation by You of the transactions contemplated in this Agreement will conflict with, violate or result in a breach of (a) any applicable law, regulation, order, writ, injunction, decree, determination or award of any governmental authority, (b) any of the terms, conditions or provisions of the certificate of organization, bylaws or other governing documents of the applicable entity that You represent or (c) any material agreement or instrument to which You are or may be bound or to which any of your material properties, assets or businesses is subject; (3) There are no actions, suits, proceedings or investigations pending or, threatened against or affecting You or any of your properties, assets or businesses in, before or by any governmental authority which could, if adversely determined, reasonably be expected to have a material adverse effect on your ability to perform your obligations under the Agreement and that You have not received any currently effective notice of any default; (4) You will ensure that all the facts, information, intellectual property, materials, and documents provided by You and your Authorized Users are accurate, timely, non-infringing and in good condition; (5) You are solely responsible for determining whether the Software is fit and sufficient for the purposes for which You and, if applicable, your Authorized Users, intend to use them; (6) You and your Authorized Users will operate the Software with all applicable standards, instructions, operating manuals, regulations, governmental requirements, safety, storage and handling procedures and industry standards; and (7) You are solely responsible for any integration of the Software with other equipment, products and systems made by any party other than Licensor.

  17. INDEMNIFICATION.

    You shall defend, indemnify and hold Licensor., its affiliates, its customers and their respective officers, directors, employees, agents and insurers harmless from and against any loss, damage, liability, claim, demand, action, cost and expense (including reasonable attorneys' fees and costs at all stages of appeal) arising out of or relating to: (i) personal injury (including death), property damage or any other damage caused or alleged to be caused by the negligence, willful misconduct, bad faith or fraud or any other act or omission of You, your Representatives, employees, agents or subcontractors as well as any Authorized Users, and (ii) any breach of this Agreement by You or your Representatives, employees, agents or subcontractors as well as any Authorized Users. Upon receipt of notice, You shall promptly assume the defense of any third party suit or proceeding covered by your indemnification obligations hereunder. You shall not settle or compromise any claims against Licensor without Licensor's prior written consent. Licensor shall have the right to participate in any litigation in order to protect its interests.

  18. SERVICE DISRUPTIONS AND BACKUP

    Licensor strives to keep the Software up and running; however, all online services suffer occasional disruptions and outages, and Licensor isn't liable for any disruption or loss You may suffer as a result. You should regularly backup the content that You store through the Software. Having a regular backup plan and following it can help You prevent loss of your content.

  19. INTERNET ACCESS AND SERVICE CHARGES

    You are responsible for paying the fees charged by your Internet access provider. Those fees are in addition to the fees you pay us for the Software. If You access the Software through wireless devices (for example, mobile phones, tablets), your wireless carrier may charge fees for alerts, web browsing, messaging, and other services that require the use of airtime and wireless data services. Check with your carrier to verify whether there are any such fees that may apply to You. You are solely responsible for any costs You incur to access the Software through any wireless or other communication service.

    The Software may not be available in your country or region. You may incur toll, roaming, or other access charges, depending on the number you call and from where you call. You should check with your local telephone company first to determine if the number You plan to use will incur such charges. Even if Licensor suggests a phone number for You to call, You may still incur charges, depending on your local provider, calling location, and phone plan. Licensor won't reimburse You for such charges.

  20. LIMITATION OF WARRANTIES

    EXCEPT AS SET FORTH IN THIS AGREEMENT, THE SOFTWARE IS PROVIDED "AS IS," "AS-AVAILABLE" AND WITH "ALL FAULTS". LICENSOR EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE SOFTWARE (INCLUDING ALL OPEN SOURCE COMPONENTS), DOCUMENTATION, MEDIA AND ANY OTHER SERVICES AND MATERIALS PROVIDED TO YOU UNDER THIS AGREEMENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, LICENSOR MAKES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE , THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES (EXCEPT AS EXPRESSLY SET FORTH IN THE DOCUMENTATION), OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE.

  21. DISCLAIMER OF LIABILITY.

    IN NO EVENT SHALL LICENSOR OR ANY OF ITS REPRESENTATIVES BE LIABLE UNDER THIS AGREEMENT TO YOU OR ANY THIRD-PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, INCLUDING ANY DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF USE, DATA, REVENUE, OR PROFIT, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT THE LICENSOR WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

  22. MAXIMUM LIABILITY.

    IN NO EVENT SHALL LICENSOR'S MAXIMUM AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE EXCEED THE TOTAL AMOUNT PAID TO THE LICENSOR BY YOU PURSUANT TO THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

  23. INJUNCTIVE RELIEF.

    You acknowledge that the rights and obligations set out in this Agreement are necessary in order to protect and maintain the proprietary interests and other legitimate business interests of Licensor. You further acknowledge that the remedy at law for any breach or threatened breach of this Agreement may be inadequate and that, accordingly, Licensor, in addition to all other available remedies, is entitled to seek injunctive relief.

  24. MISCELLANEOUS.

    Any delay by or failure or inability of Licensor to perform hereunder shall be excused if caused by or resulting from fire, explosion, accident, flood, drought, embargo, war, act or consequence of war, riot, act of terrorism, act of God or public enemy, action of any governmental authority or any other commercially reasonable cause beyond Licensor's immediate and direct reasonable control, and Licensor shall not be liable to You or any other person for damages by reason of any such delay, failure or inability to perform. Licensor is an independent contractor, and neither Licensor nor its Representatives shall be considered for any purpose your employees. You agree to cooperate with Licensor to execute all documents and instruments necessary or appropriate to effectuate the intents and purposes of the Agreement, and to accomplish, evidence and perfect the rights granted to Licensor hereunder. This Agreement sets forth the final and entire agreement of the parties with respect to the subject matter hereof. Any and all previous agreements and understandings between the parties regarding the subject matter hereof, whether written or oral, are superseded by this Agreement. This Agreement is separate and distinct from any other agreement between the parties. The Software and the rights, duties and obligations under the Agreement may not be assigned by You without the prior written consent of Licensor. This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors and authorized assigns. Any provision hereof may be waived at any time by the party entitled to the benefit thereof by a written instrument duly executed by such party. The failure to enforce at any time any of the provisions, or to require at any time performance by the other party of any of the provisions, shall in no way be construed to be a waiver of such provision, nor in any way affect the validity of this Agreement or any part of hereof, or the right of any party thereafter to enforce each and every such provision in accordance with this Agreement. This Agreement shall be governed by and interpreted and enforced in accordance with the laws of the State of Ohio, U.S.A., without regard to any principle of conflicts of law which would apply the laws of another jurisdiction. Any legal suit, action or proceeding arising out of or related to the Agreement or the Software shall be instituted in the federal courts of the United States or the courts of the State of Ohio, in each case, located in County of Hamilton, and each Party irrevocably submits to the exclusive jurisdiction of such courts in such suit, action or proceedings. All section headings are for convenience only and shall in no way modify or restrict any of the terms or provisions of this Agreement. This Agreement shall be construed and interpreted so as to be enforceable to the fullest extent permitted by law, and the unenforceability of any provision shall not affect any other provision hereof. Your representations, warranties, covenants, duties and obligations set forth in this Agreement as well as Licensor's rights and remedies thereunder shall survive the expiration or termination of the Agreement.

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