Access Informer Software Subscription Agreement

Last Modified February 9, 2019

THE SERVICES ARE PROVIDED ON THE CONDITION THAT THE SUBSCRIBER AGREES TO THE TERMS AND CONDITIONS IN THIS SUBSCRIPTION AGREEMENT (“AGREEMENT”) BETWEEN SUBSCRIBER AND ACCESS INFORMER. BY ACCEPTING THIS AGREEMENT OR BY USING THE SERVICES, SUBSCRIBER ACKNOWLEDGES IT HAS READ, UNDERSTANDS, AND AGREES TO BE BOUND BY THIS AGREEMENT.

1. Definitions.

“Access Informer” means Access Informer Security Solutions GmbH, a company registered in Zug, Switzerland and located at c/o Cofigest Management AG, Chamerstrasse 77, 6300 Zug.

“Order” means a purchase commitment mutually agreed upon between Access Informer and the Subscriber

“Permitted Capacity” means the use of the Software within the specified number of environments and specified number of users.

“Software” means Access Informer Software Suite, including but not limited to Access Informer Desktop and Extractor applications.

“Software Upgrades” means certain modifications or revisions to the Software.

“Subscriber” means the individual, company, jointly owned subsidiaries and their parent company, or other legal entity that has placed an Order for a subscription of the Software.

“Subscription” means a non-exclusive, non-transferable right to use the Software in accordance with this Agreement and the Order.

“Subscription Fees” means the agreed upon fees in an Order.

“Subscription Term” means the annual subscription period of an Order.

“User License” means the specific named individual for which a license is granted on a specific workstation for the use of the Access Informer Desktop application.

2. Subscription and Grant of Right to Use.

2.1 Subject to the terms and conditions of this Agreement, Access Informer will provide Subscriber the Subscription at the Permitted Capacity set forth in the Order for the Subscription Term. Subscriber may use the Software solely for Subscribers own internal business operations (not for the benefit of any other person or entity) during the Subscription Term, provided Subscriber has paid and continues to pay the Subscription Fees. Access Informer may terminate provision of the Service at the end of a Subscription Term unless Subscriber continues to pay Subscription Fees for the Service. Subscription Fees are nonrefundable. Access Informer is granted a right to audit the use of its Software by the Subscriber to confirm the authorized use of the Services. Subscriber may not rent, lease or timeshare the Services or provide subscription services for the Services or permit others to do so. Subject to the terms of this Agreement, Subscriber may allow its agents and independent contractors to use the Services solely for the benefit of Subscriber; provided, however, Subscriber remains responsible for any breach of this Agreement. Any other use of the Services by any other entity is forbidden and a violation of this Agreement.

2.2 The payment of the Order for the Subscription Term is due within 30 days of the start of the Subscription. Unless specifically terminated by either party in writing and at least 30 days prior to the expiry of the Subscription, the Subscription and Order will automatically be renewed for another standard Subscription Term.

3. Provision of Services.

3.1 Access Informer will use commercially reasonable efforts to provide the Services for the Subscription Term. Access Informer provides different options for the support service level commitments, specified in the Order.

3.2 The Subscriber can contact Access Informer to increase the Permitted Capacity at any time during the subscription. The additional costs will be calculated at the rates provided in the Order adjusted for the remaining duration of the Subscription.

3.3 If the Services are suspended or terminated, the subscriber will need to delete the provided Software and underlying databases generated by the Software from their environment.

3.4 For the purposes of customer service, technical support, and as a means of facilitating interactions with its end-users, Access Informer may periodically send Subscriber messages of an informational nature via email. Subscriber acknowledges that Access Informer may use Subscriber’s company name in a general list of Access Informer customers. Access Informer owns any suggestions, ideas, enhancement requests, feedback, or recommendations provided by Subscriber relating to the Services.

4. Subscriber Obligations.

4.1 Subscriber will (a) comply with all applicable laws, statutes, regulations and ordinances, (b) only use the Services for legitimate business purposes.

4.2 Subscriber must have the authority, rights, or permissions to connect the Software to all the environments specified in the Order and covered by the Subscription.

5. Intellectual Property Rights.

The Services and all related intellectual property rights are the exclusive property of Access Informer or its licensors. All right, title and interest in and to the Services, any modifications, translations, and applicable intellectual property rights in the Services remain exclusively with Access Informer or its licensors. The Services are valuable, proprietary, and unique, and the Subscriber agrees to be bound by and observe the proprietary nature of the Services. The Services include software products licensed from third parties. Such third parties have no obligations or liability to Subscriber under this Agreement but are third party beneficiaries of this Agreement. All rights not granted to Subscriber in this Agreement are reserved to Access Informer. No ownership of the Services passes to Subscriber. Access Informer may make changes to the Services at any time without notice. Except as otherwise expressly provided, Access Informer grants no express or implied right under Access Informer patents, copyrights, trademarks, or other intellectual property rights.

6. Protection and Restrictions.

6.1 Each party (the “Disclosing Party”) may disclose to the other (the “Receiving Party”) certain confidential technical and business information which the Disclosing Party desires the Receiving Party to treat as confidential. “Confidential Information” means any information disclosed by either party to the other party, either directly or indirectly, in writing, orally, electronically or by inspection of tangible objects (including but not limited to documents, technical data, trade secrets and know-how, services, suppliers, customer information, prices and costs, software, databases, developments, processes, employee information, budgets and other business information), which is designated as “Confidential,” “Proprietary” or some similar designation at or prior to the time of disclosure, or which should otherwise reasonably be considered confidential by the Receiving Party. Confidential Information may also include information disclosed to a Disclosing Party by third parties. Confidential Information shall not, however, include any information which the Receiving Party can document (i) was publicly known and made generally available prior to the time of disclosure by the Disclosing Party or an authorized third party; (ii) becomes publicly known and made generally available after disclosure through no action or inaction of the Receiving Party in violation of any obligation of confidentiality; or (iii) is already in the possession of the Receiving Party at the time of disclosure.

6.2 Subscriber will take all reasonable steps to safeguard the Services to ensure that no unauthorized person has access and that no unauthorized copy, publication, disclosure or distribution, in any form is made. The Services contain valuable, confidential information and trade secrets and unauthorized use or copying is harmful to Access Informer. Subscriber may not directly or indirectly transfer, assign, publish, display, disclose, rent, lease, modify, loan, distribute, or create derivative works based on the Services or any part thereof. Subscriber may not reverse engineer, decompile, translate, adapt, or disassemble the Software or Services. The Subscriber may also not connect directly, to the underlying database, without using the provided Software, other than for performing database maintenance operations. Any third party software included in the Services may only be used in conjunction with the Services.

7. Limited Warranty.

7.1 For the Subscription Term, Access Informer warrants that the Services will operate in substantial conformance with the then current Access Informer published documentation under normal use. Access Informer does not warrant that: (A) the Services will (i) be free of defects, (ii) satisfy Subscribers requirements, (iii) operate without interruption or error, (iv) or (ii) that the algorithms used in the Services will be complete or accurate.

7.2 Access Informer will use reasonable efforts to remedy any significant non-conformance in the Services which is reported to Access Informer and that Access Informer can reasonably identify and confirm. Access Informer at its discretion will repair or replace any such non-conforming or defective Services, or refund a pro-rata portion of the unused Subscription Fees paid for the remainder of the then current term. This paragraph sets forth Subscribers sole and exclusive remedy and Access Informer’s entire liability for any breach of warranty or other duty related to the Services. Any unauthorized modification of the Services, tampering with the Services, use of the Services inconsistent with the accompanying documentation, or related breach of this Agreement voids the warranty. Except as explicitly stated and to the extent allowed by law, there are no other warranties, express or implied.

8. Limitation of liability.

Access informer, its affiliates, its licensors or resellers will not be liable for any direct, indirect, consequential, special, punitive or incidental damages, whether foreseeable or unforeseeable, arising out of or related to this agreement including, but not limited to claims for loss of data, opportunity, goodwill, revenue or profits. In no event will access informer’s aggregate liability arising out of or related to this agreement exceed the total amount actually paid to access informer for the applicable services over the one year period prior to the event out of which the claim arose for the services that directly caused the liability.

9. Termination.

This Agreement remains valid and active until terminated by either party at any time in writing and at least 30 days prior to the end of the Subscription Term. Subscriber is able to use the Software and services provided until the end of the Subscription Term specified in the Order and is not entitled to a refund of any prepaid or other fees. Access Informer may terminate this Agreement if Access Informer finds that Subscriber has violated the Agreement. Upon notification of termination by either party, Subscriber must cease using and uninstall all copies of the Software. Sections 1, 5-9, and 11 shall survive the termination of this Agreement.

10. Data Privacy.

Subscriber will comply with all applicable laws and regulations, including those of other jurisdictions that may apply to Subscriber, concerning the protection of personal data. Neither party will use any data obtained via the Service for any unlawful purpose.

11. Applicable Law and Jurisdiction.

This contract shall be governed by Swiss law, Canton of Zug. Neither party will be liable for any delay or failure in performance to the extent the delay or failure is caused by events beyond the partys reasonable control, including, fire, flood, and acts of God. This Agreement constitutes the entire agreement between the parties regarding the subject matter herein and the parties have not relied on any promise, representation, or warranty, express or implied, that is not in this Agreement. Any waiver or modification of this Agreement is only effective if it is in writing and signed by both parties or posted by Access Informer at http://www.accessinformer.com/legal.html. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be interpreted so as reasonably to affect the intention of the parties.