Software End User License Agreement

1. License

1.1 Software License Grant

Subject to this Agreement, Licensor grants to Licensee, for the period covered by the Subscription Agreement, a non-exclusive software license to use Licensor’s “Autire” software application, and all manuals, revisions, updates and improvements, and all related data, instructions, information and materials related thereto (collectively, the “Software”), for Licensee’s business purposes. Nothing herein shall prohibit Licensor from licensing or granting other rights in and to the Software to other parties. Unauthorized use of the Software including, but not limited to, unauthorized access, sharing of logins, misuse of passwords, or misuse of any information or Software elements, tools or functions, is strictly prohibited.

1.2 Copies

Licensee agrees to use reasonable commercial efforts to protect the Software, including its source code, object code, algorithms and source documentation from unauthorized copying, disclosure or use. Licensee will not share logins, screen shots, or reports produced by the Software except as provided in this Agreement and the Subscription Agreement.

1.3 Ownership

All right, title and interest in and to the Software and any and all copies thereof including without limitation, all copyright, patent and other proprietary rights therein, will, at all times, exclusively be owned by Licensor. Licensee agrees to execute any assignments or other documentation requested by Licensor to fully vest in or confirm Licensor’s title to such property. All data and materials created by Licensee using the Software shall be owned by Licensee.

Licensee hereby grants to Licensor and its affiliates a non-exclusive, perpetual, irrevocable, worldwide license to use, sample, collect, and compile Licensee Data in aggregated, anonymized and de-identified form for the purposes of providing or maintenance of, improvement to, and operation of the Software or Services or for any new or different products or services. In addition, Licensee grants to Licensor the right to sub-license to third parties (specifically AWS) the Licensee Data in a de-identified form for the purposes of improvements to Software and for similar Licensor business purposes.

1.4 Restrictions

Except as expressly authorized in this Agreement, Licensee may not sublicense, rent, lease, distribute, transfer or transmit the Software or any portion thereof. Furthermore, Licensee shall not, and shall not permit third parties, to (a) copy, except as expressly provided in this Agreement, (b) modify or create derivative works of the Software and documentation, (c) reverse engineer, decompile, reverse translate or in any way derive any source code or trade secrets from the Software, or (d) merge or embed the Software into any other computer program.

1.5 Licensee Obligations

Licensee shall be solely responsible for the accuracy, quality and legality of Licensee Data entered into or transmitted to the Software and the means by which it was originally obtained. Licensee shall use commercially reasonable efforts to prevent unauthorized access to or use of the Software and shall notify Licensor promptly of any actual unauthorized access or use. Licensee shall use the Software in compliance with US and applicable local laws, including export control laws, and shall not use the Software to store or transmit any illegal material. Licensee shall be solely responsible for the retention of all original source Licensee Data. Licensee shall not attempt to gain unauthorized access to or circumvent any access or tracking mechanism for the Software.

1.6 Disclaimer

The Site Does Not Provide Legal, Financial, Business or Tax Advice. All of the contents of the Software, such as text, graphics, images, charts, reports, formulae, content, and other material contained in or produced by the Software are for informational purposes only. The content is not intended to be a substitute for professional legal, financial, business or tax advice. Always seek the advice of a qualified professionals for any issues or questions you may have regarding such matters. Reliance on any information provided by Software is expressly at your own risk.

Without limiting the foregoing, Licensee specifically represents and warrants:

1. That the use of the Software does not relieve Licensee of responsibility for the preparation, content, accuracy (including computational accuracy), and review of audits prepared by Licensee while using the Software or any other work product generated by Licensee while using the Software;
2. Licensee will neither inquire nor rely upon Licensor for any audit, tax, accounting, legal or other professional or expert advice of any kind;
3. Licensee will retrieve in a timely manner any electronic communications made available to Licensee by Licensor (for example, electronic filing transaction data such as acknowledgements and e-mail messages in Licensee’s mailbox);
4. Licensee is fully and solely responsible for: (a) selection of adequate and appropriate procedures to satisfy Licensee’s business needs and achieve its intended results; (b) use of the Software by all users; (c) all results obtained from the Software; (d) selecting, obtaining and maintaining all hardware, software, computer capacity, Internet service, program and system resources and other equipment and utilities needed for access to and use of the Software, and for all costs associated therewith; and (e) selection, use of, and results obtained from any other programs, applications, computer equipment or services used with the Software. Licensee takes full and exclusive responsibility for complying with and documenting all auditing and documentation standards of the AICPA and other applicable requirements;
5. Licensee will not access or use the Software to create software, a product, service or database that competes with Licensor or the Software;
6. Licensee is responsible for complying with all laws, rules, regulations, and procedures of local, state, federal and foreign authorities applicable to Licensee and its business, including all laws, rules, regulations and procedures of the Internal Revenue Code and Service; and
7. Licensee will not upload or transmit any Licensee Data: (i) that Licensee does not have the lawful right to copy, transmit, distribute, and display (including any Licensee Data that would violate any confidentiality or fiduciary obligations that Licensee might have with respect to the Licensee Data); (ii) for which Licensee does not have the consent or permission from the owner of any personally identifiable information contained in the Licensee Data; (iii) that infringes, misappropriates or otherwise violates any intellectual property or other proprietary rights or violates any privacy rights of any third party (including any copyright, trademark, patent, trade secret, or other intellectual property right, or moral right or right of publicity); (iv) that is false or misleading; (v) that is defamatory, obscene, or offensive; (vi) if the uploading or transmission would violate, or encourage any conduct that would violate, any applicable law or regulation or would give rise to civil or criminal liability or (vii) that constitutes protected health information under the Health Insurance Portability and Accountability Act (HIPAA) or any successor law;

1.7 Use of Support Interactions

If you contact Licensor for support, Licensee understands and agrees that all interactions with Licensor will be recorded and may be used to create training and support videos for our own staff and for the education and assistance of other licensees and users (collectively, “Training Videos”). Training Videos will be posted or otherwise shared with all licensees of the Software via a FAQ or other support resource available through the Software. Licensor will ensure that all Licensee and Licensee client identifiable data is deleted or obscured in all Training Videos. Licensee hereby grants to Licensor and its affiliates a non-exclusive, perpetual, irrevocable, worldwide license to use, sample, collect, and compile Licensee Data included in any Training Videos.

2. Limited Warranty

2.1 Software Warranty

Licensor warrants that such Software will: (a) perform in all material respects in accordance with any documentation and specification provided by Licensor and (b) be free from material defects in materials and errors. Licensor will, within thirty (30) days following Licensor’s receipt of written notice and substantiation of any breach of the aforementioned warranty: (y) correct the warranty breach or (z) provide Licensee with a plan reasonably acceptable to Licensee for correcting the breach of warranty. This warranty extends only to Licensee. This warranty shall not apply to any failure in performance related to accident, abuse, misapplication, unauthorized modification of the Software or interaction of the Software programs not furnished by Licensor. Except for the express warranties set forth in this Section 2.1, Licensor hereby disclaims all other warranties, whether express or implied.

2.2 Malicious Code

To Licensor’s knowledge, Licensor warrants that the Software is free from: (a) all “viruses” and “worms” that could have been detected (at the date of dispatch, or if appropriate, immediately before installation); and (b) at the time of delivery to Licensee, all forms of “malicious electronic repossession” and “logic bombs.”

2.3 Representations and Warranties of Licensor

Licensor hereby represents and warrants to Licensee that: (a) Licensor and its licensors have good and clear title to the Software, free and clear of all liens and encumbrances; (b) to Licensor’s knowledge, the use, manufacture, license or copying of the Software by Licensee in accordance with this Agreement does not infringe any proprietary rights of any third party; (c) as of the Effective Date, Licensor has not received any notice of actual or threatened claim(s) from a third party alleging that the Software infringes any proprietary rights of such third party; and (d) Licensor has the full power to enter into this Agreement, to carry out its obligations under this Agreement and to grant the rights and licenses granted to Licensee in this Agreement.

3. Indemnification

Subject to the terms, conditions and limitations of this Agreement, Licensor will indemnify, defend and hold harmless Licensee against all resulting damages, losses, costs and liabilities (including reasonable attorney and professional fees) to the extent resulting or arising from any claim, suit, demand and action based on a third party claim that the Software infringes any U.S. patent, copyright or trade secret of such third party, provided that Licensor is given prompt written notice of such claim. Licensor shall control such defense with counsel of its choice, and Licensee will fully cooperate in the defense of such claim, if requested by Licensor. Licensor will have sole authority to defend or settle the claim. Licensor may, at its sole option and expense and in addition to its indemnification obligation, (a) obtain for Licensee the right to continue using the Software, (b) replace or modify the affected Software so that the Software becomes non-infringing while giving substantially equivalent functionality, or (c) if such remedies are not reasonably available, terminate this Agreement. Licensor will have no liability for infringement claims if the alleged infringement is based on or arises from: (v) a modification of the Software made by anyone other than Licensor or as authorized by Licensor, (w) the use of the Software by Licensee to create materials or data that infringes on third party rights, (x) use that is not in accordance with Licensor’s documentation, if any, (y) use of the Software in a manner other than as authorized by this Agreement and (z) the unauthorized use of the Software in conjunction or combination with third-party software. For the avoidance of doubt, Licensor’s broader indemnification obligations to the Customer (including for claims arising from Licensor’s negligence, gross negligence, or breach) are set forth in, and governed by, the Software Subscription Agreement.

4. Limitation of Liability

EXCEPT FOR LICENSOR’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 3, LICENSOR’S CUMULATIVE, AGGREGATE LIABILITY TO LICENSEE OR ANY THIRD PARTY HEREUNDER, WHETHER ARISING OUT OF CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, WILL NOT EXCEED THE AMOUNTS PAID BY LICENSEE UNDER THE SOFTWARE SUBSCRIPTION AGREEMENT AND ALL ORDER FORMS THEREUNDER DURING THE PERIOD COVERED BY THE SUBSCRIPTION AGREEMENT. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL LICENSOR, ITS EMPLOYEES, OFFICERS OR DIRECTORS, AGENTS, SUCCESSORS OR ASSIGNS BE LIABLE TO LICENSEE OR ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES ARISING IN ANY WAY OUT OF THE USE OF THE SOFTWARE OR THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOST PROFIT, LOST REVENUE, LOSS OF USE, LOSS OF DATA, COST OF RECREATING LOST DATA, THE COST OF ANY SUBSTITUTE EQUIPMENT, PROGRAM OR DATA, WHETHER ARISING OUT OF CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE REGARDLESS OF WHETHER A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

5. General Conditions

5.1 Governing Law

The validity, interpretation and enforceability of this Agreement shall be governed by the exclusive jurisdiction and laws of the State of Texas without regard to any conflicts of law principles. You irrevocably consent to the exclusive jurisdiction and venue of the United States Federal and Texas State courts located in the Northern District of Texas for any dispute arising out of or relating to this Agreement, and, to the extent permitted by applicable law, knowingly, voluntarily, and intentionally waive any right to a trial by jury in any such action or legal proceeding.

5.2 Relationship

This Agreement does not create any joint venture, partnership or other fiduciary relationship between the parties.

5.3 Severability

If any provision in this Agreement is invalid or unenforceable, that provision will be construed, limited, modified or, if necessary, severed, to the extent necessary, to eliminate its invalidity or unenforceability, and the other provisions of this Agreement will remain in full force and effect.

6. Export Control

Any tools, information, documents, or other data or materials (collectively, “Materials”) available from or through the use of the Software are or may be subject to United States export controls. No such Materials may be downloaded, accessed or otherwise exported or re-exported (1) into any country to which the United States has embargoed goods; or (2) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders or other similar list (each, a “Restricted List”). By using or downloading any Materials, you are warranting that you are not located in, under the control of, or a national or resident of any such country or on any Restricted List.

7. Amendments

Subject to the terms of the Subscription Agreement, this Agreement may be modified by Licensor at any time. Licensee’s use of the Software after any such amendment shall constitute Licensee’s acceptance of the amended Agreement.